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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
NICHOLAS MICHAEL TATE :
: No. 1299 MDA 2017
Appellant :
Appeal from the Judgment of Sentence May 16, 2016
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0000423-2016,
CP-22-CR-0006613-2015
BEFORE: BOWES, J., MURRAY, J., and PLATT*, J.
MEMORANDUM BY MURRAY, J.: FILED APRIL 24, 2018
Nicholas Michael Tate (Appellant) appeals from the judgment of
sentence imposed by the trial court after he pled guilty at docket CP-22-CR-
0006613-2015 to the charges of possession with the intent to deliver a
controlled substance (PWID) and possession of drug paraphernalia,1 and at
docket CP-22-CR-0000423-2016 to the charges of receiving stolen property,
persons not to possess a firearm, flight to avoid apprehension, tampering with
or fabricating physical evidence, PWID, possession of a small amount of
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* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30), (32).
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marijuana, and possession of drug paraphernalia.2 We affirm.
We summarize the material facts leading to the charges at docket CP-
22-CR-0006613-2015 as follows. On August 22, 2015, Appellant was involved
in an automobile accident while driving along South Oak Grove Road in West
Hanover Township, Dauphin County. Witnesses at the scene of the accident
indicated that they observed Appellant throw a small plastic baggie into a line
of trees. The witnesses directed the police to the baggie, which contained 121
grams of marijuana. Appellant was severely injured in the accident and
consequently, transported to Hershey Medical Center (Hospital). Hospital staff
later contacted the police to inform them that they had recovered an additional
122 grams of marijuana from four plastic baggies found in Appellant’s
backpack.
The pertinent facts leading to the charges at docket CP-22-CR-0000423-
2016 are as follows. On January 1, 2016, Appellant’s great aunt, Karen
Symonds (Symonds), reported to the Derry Township Police that she believed
Appellant was selling drugs out of her house in Dauphin County. On January
2, 2016, Symonds brought marijuana to the police that she claimed belonged
to Appellant. The police obtained a search warrant for Symonds’ home based
on this information. On January 3, 2016, the police executed the search
warrant at which time Appellant attempted to flee the home. The police were
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2 18 Pa.C.S.A. §§ 3925(a), 6105(a)(1), 5126(a), 4910(1); 35 P.S. § 780-
113(a)(30), (31), (32).
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ultimately able to detain Appellant. Upon searching the premises, police
recovered several guns, ammunition (including hollow point rounds),
marijuana, packaging material, four cellphones, a bulletproof vest, and 11
letters regarding drug sales and other illegal activity.
On May 16, 2016, Appellant entered a negotiated guilty plea to all
charges on both of the aforementioned dockets. The same day, the trial court
sentenced Appellant to three to six years of incarceration. Appellant did not
file any post-sentence motions or a direct appeal at that time.
On March 24, 2017, Appellant filed a petition pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, seeking the
reinstatement of his direct appeal rights nunc pro tunc. The trial court
summarized the remainder of the procedural history as follows:
The [c]ourt appointed Jennifer Tobias, Esq., as PCRA counsel.
On May 2, 2017, Attorney Tobias filed a counseled PCRA Petition,
to which the Commonwealth filed an Answer on May 23, 2017.
On June 2, 2017, the [c]ourt conducted an evidentiary hearing.
On July 19, 2017, the [c]ourt ordered reinstatement of
[Appellant]’s post-sentence and [direct appeal] rights. The
[c]ourt directed that [Appellant] shall file any post-sentence
motion within ten days thereof, or an appeal to the Pennsylvania
Superior Court within 30 days thereof.
On July 26, 2017, [Appellant] filed a Motion to Withdraw Guilty
Plea to which the Commonwealth filed a Response on July 31,
2017. On August 10, 2017, the [c]ourt denied [Appellant]’s
Motion to Withdraw Guilty Plea.
[Appellant] filed a Notice of Appeal on August 17, 2017 and a
timely Concise Statement of Matters Complained of on Appeal on
September 13, 3017.
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Trial Court Opinion, 10/31/17, at 4.
On appeal, Appellant presents the following issues for review:
1. Whether [] Appellant’s guilty plea was unlawfully induced by
the ineffectiveness of counsel?
a. Whether [] Appellant’s guilty plea was not knowing,
voluntary, and intelligently entered, as he was under the
influence of psychotropic drugs at the time of the plea?
b. Whether [] Appellant’s guilty plea was coerced, as []
Appellant felt pressured into pleading guilty?
Appellant’s Brief at 5.
As a preliminary matter, we note that Appellant attempts to frame the
entirety of his argument relating to the voluntariness of his guilty plea as an
ineffective assistance of counsel claim. Our Supreme Court has held that
“[g]enerally, claims of ineffectiveness of counsel are not ripe until collateral
review.” Commonwealth v. Knox, 165 A.3d 925, 928 (Pa. Super. 2017),
appeal denied, 173 A.3d 257 (Pa. 2017). Ineffective assistance of counsel
claims are permitted on direct review, at the discretion of the trial court, only
where there exists: (1) extraordinary circumstances, or (2) good cause
accompanied by a knowing and express waiver of PCRA rights.
Commonwealth v. Holmes, 79 A.3d 562, 577-80 (Pa. 2013). Exceptional
circumstances exist where “a claim (or claims) of ineffectiveness is both
meritorious and apparent from the record so that immediate consideration
and relief is warranted.” Id. at 577. Here, Appellant makes no argument that
extraordinary circumstances exist nor has he waived PCRA review. Therefore,
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insofar as Appellant challenges his plea counsel’s effectiveness, such claims
must await collateral review.3
To the extent Appellant challenges the voluntariness of his guilty plea,
we conclude that the trial court did not err in denying his motion to withdraw
his plea. Appellant argues that the trial court should have permitted him to
withdraw his guilty plea because it was not knowing, voluntary, or intelligent,
as Appellant was under the influence of psychotropic medication at the time
of his plea. Appellant further asserts that the plea was involuntary because
his counsel coerced him into pleading guilty by telling him that if he did not
accept the plea agreement, he would be prosecuted by the “feds,” and as a
result, counsel’s fees would triple and Appellant would spend more time in
prison. Appellant’s Brief at 16.
Our Court has held that “[t]here is no absolute right to withdraw a guilty
plea, and the decision as to whether to allow a defendant to do so is a matter
within the sound discretion of the trial court.” Commonwealth v. Pollard,
832 A.2d 517, 522 (Pa. Super. 2003). “A trial court’s decision regarding
whether to permit a guilty plea to be withdrawn should not be upset absent
an abuse of discretion.” Commonwealth v. Pardo, 35 A.3d 1222, 1227 (Pa.
Super. 2011). “[P]ost-sentence motions for withdrawal are subject to higher
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3 Although we could affirm Appellant’s judgment of sentence on this basis
alone, for purposes of judicial economy, we address the merits of his challenge
to the trial court’s denial of his motion to withdraw his guilty plea.
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scrutiny [because] courts strive to discourage entry of guilty pleas as
sentence-testing devices.” Commonwealth v. Broaden, 980 A.2d 124, 129
(Pa. Super. 2009) (quotations and citation omitted). Importantly, “a
defendant who attempts to withdraw a guilty plea after sentencing must
demonstrate prejudice on the order of manifest injustice before withdrawal is
justified.” Commonwealth v. Lincoln, 72 A.3d 606, 610 (Pa. Super. 2013),
appeal denied, 87 A.3d 319 (Pa. 2014). Our Court has held that “[a] plea
rises to the level of manifest injustice when it is entered into involuntarily,
unknowingly, or unintelligently.” Id. (quoting Commonwealth v.
Muhammad, 794 A.2d 378, 383 (Pa. Super. 2002)).
Prior to accepting a guilty plea, a trial court must determine on the
record whether it is voluntarily, knowingly, and intelligently tendered. See
Pa.R.Crim.P. 590(a)(3). In order to ensure a voluntary, knowing, and
intelligent plea, our Supreme Court requires that a trial court, at a minimum,
ask the following questions during a plea colloquy:
1) Does the defendant understand the nature of the charges to
which he is pleading guilty?
2) Is there a factual basis for the plea?
3) Does the defendant understand that he has the right to a
trial by jury?
4) Does the defendant understand that he is presumed
innocent until he is found guilty?
5) Is the defendant aware of the permissible ranges of
sentences and/or fines for the offenses charged?
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6) Is the defendant aware that the judge is not bound by the
terms of any plea agreement tendered unless the judge
accepts such agreement?
Commonwealth v. Moser, 921 A.2d 526, 529 (Pa. Super. 2007).
Additionally, “[o]ur law presumes that a defendant who enters a guilty
plea was aware of what he was doing,” and “[h]e bears the burden of proving
otherwise.” Pollard, 832 A.2d at 523 (citation omitted). In assessing the
adequacy of a guilty plea colloquy and the voluntariness of the subsequent
plea, “the court must examine the totality of circumstances surrounding the
plea.” Broaden, 980 A.2d at 129.
Instantly, the record supports the trial court’s determination that
Appellant entered a knowing, voluntary, and intelligent guilty plea and that he
failed to demonstrate a manifest injustice warranting the withdrawal of his
plea. At the outset, we note that the certified record reflects that Appellant
received a full and proper guilty plea colloquy. During the colloquy, Appellant
confirmed that he understood the nature of the charges to which he was
pleading guilty, the factual basis for the plea, and that Appellant was aware
of the permissible ranges of sentences for the offenses charged. N.T.,
5/16/16, at 2-5, 7-11. Appellant also indicated that he was aware that, by
pleading guilty, he was giving up his right to be presumed innocent and his
right to a trial by jury:
[Commonwealth]: By pleading guilty you give up certain
constitutional rights such as your right to be presumed innocent,
the right to have a trial, the right to see any evidence the
Commonwealth would present, the right to present any evidence
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on your own behalf, the right to testify, the right not to testify,
the right to file any pretrial motions. Those are all the rights you
give up by pleading guilty today. Do you understand that[?]
[Appellant]: Yes, sir.
Id. at 5. Additionally, the trial court indicated that it would sentence him
according to the negotiated plea agreement. Id. at 15-17.
With respect to his claim that psychotropic medications precluded him
from rendering a knowing, voluntary and intelligent plea, no evidence of
record supports this claim. At the guilty plea hearing, the prosecutor noted
for the trial court that Appellant had a history of mental health problems, but
also noted that since Appellant had been incarcerated and regularly taking his
medications, his demeanor and social interactions had substantially improved.
N.T., 5/16/16, at 14-15. At no point during this discussion did Appellant claim
that these medications impacted his ability to make a knowing, voluntary, and
intelligent plea. In fact, he thanked the prosecutor for his remarks. See id.
If anything, the prosecutor’s comments demonstrate that the medications
aided Appellant in making a knowing, voluntary, and intelligent plea.
There is also no evidence of record supporting Appellant’s claim that his
counsel coerced him into pleading guilty. At his guilty plea hearing, Appellant
specifically indicated that he was satisfied with the representation of his
counsel. Id. at 3-4. Moreover, when asked if “anyone threatened, coerced
you, or made any promises to you other than the plea agreement we reached
to get you to enter into this plea today[,]” Appellant responded in the
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negative. Id. at 5-6. When asked if he was “entering into this plea of your
own freewill,” Appellant responded “Yes, sir.” Id. at 6. Appellant never
indicated during the hearing that counsel coerced him into pleading guilty, and
he has not subsequently provided any evidence of coercion. “A defendant is
bound by the statements made during the plea colloquy, and a defendant may
not later offer reasons for withdrawing the plea that contradict statements
made when he pled.” Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa.
Super. 2012). Accordingly, we conclude that the trial court did not abuse its
discretion in denying Appellant’s motion to withdraw his guilty plea.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/24/18
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