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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PRESTON ROBERT GRIMES :
:
Appellant : No. 728 MDA 2018
Appeal from the Judgment of Sentence June 22, 2011
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0006368-2010
BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED: MARCH 7, 2019
Appellant, Preston Robert Grimes, appeals nunc pro tunc from the June
22, 2011 judgment of sentence. We affirm.
This matter is a procedural morass.1 By information filed on December
2, 2010, Appellant was charged with multiple crimes relating to his robbery of
a bank on October 4, 2010, in York, Pennsylvania.2 Information, 11/30/10.
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1 Appellant’s Statement of the Case pursuant to Pa.R.A.P. 2117 lacks
sufficient detail, in light of the significant procedural irregularities present in
the history of this matter. The Commonwealth’s failure to file an advocate’s
brief, as well, contributed to this Court’s challenge in identifying the relevant
procedural history.
2 On October 4, 2010, Appellant entered Integrity Bank in York and gave the
teller a note that stated, “This isn’t a fucking game[.] [C]ount out 2500 20’s,
50’s and 100’s and know [sic] one will get hurt.” Affidavit of Probable Cause,
10/5/10. When the teller informed Appellant she did not have that much
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Appellant entered an open plea of nolo contendere3 on April 21, 2011, to one
count of robbery, 18 Pa.C.S. § 3701(a)(1)(ii). The trial court sentenced him
on June 22, 2011, to a term of incarceration of ten to twenty years. Appellant
did not file a direct appeal. Appellant filed a motion to modify sentence on
June 24, 2011, two days after being sentenced, which was docketed as “Pro
Se Correspondence.” Appellant also filed, pro se, a motion to withdraw his
guilty plea on July 7, 2011. Appellant’s Brief at 5. The docket entries indicate
its filing as follows: “Pro Se Correspondence, Comments: Request to W/D Plea,
Sent to DA and PD—Attny Thompson 7-8-11.” Trial Court Docket Entries,
7/7/11.
A prior panel of this Court continued the procedural history as follows:
On June 27, 2011,[4] Appellant filed his first pro se [Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546]
petition. Appointed counsel filed a supplemental petition on July
26, 2011.[5] Following a hearing, the [PCRA] court denied the
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money, Appellant told her to “give him all the 20’s.” Id. Appellant directed
the teller to “remove all the wrappers from the cash.” Id. When the teller
gave Appellant the money, he fled on foot. Id.
3 “Nolo contendere” is a Latin phrase that means “I do not wish to
contend. . . . When a defendant enters a plea of nolo contendere, he
technically does not admit guilt. However, for purposes of a criminal case, a
plea of nolo contendere is equivalent to a plea of guilty. Commonwealth v.
Norton, ___ A.3d ___, ___n.1, 2019 WL 287153, at *1 n.1 (Pa. filed January
23, 2019).
4 Appellant filed the pro se PCRA petition five days after he was sentenced.
5 The PCRA petition challenged, inter alia, Appellant’s sentence and alleged
that his counsel had been ineffective in several respects, but the motion did
not assert ineffectiveness by counsel in failing to perfect an appeal. PCRA
Petition, 6/27/11, at ¶ 5.
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petition. Appellant timely appealed. While Appellant’s appeal was
still before this Court, Appellant filed his second and third PCRA
petitions on September 7, 2011[,] and July 16, 2012, respectively.
The PCRA court dismissed the petitions on the same day[] that
they were filed for lack of jurisdiction due to the pending appeal.
On April 23, 2012, this Court affirmed the PCRA court’s
denial of Appellant’s first PCRA petition[,] and Appellant did not
seek review in our Supreme Court. (See Commonwealth v.
Grimes, 48 A.3d 483 (Pa. Super. 2012) (unpublished
memorandum)). On August 23, 2012, Appellant filed his fourth
PCRA petition[,] and the PCRA court sent Appellant a
[Pa.R.Crim.P.] 907 notice of its intention to dismiss the petition
because the issues raised therein already had been litigated and
decided. On September 17, 2012, the PCRA court formally
dismissed Appellant’s fourth PCRA petition on this basis.
On September 28, 2012, Appellant filed his fifth pro se PCRA
petition. The PCRA court forwarded a Rule 907 notice to Appellant
on October 5, 2012, and denied Appellant’s petition on October
29, 2012, on the bases that Appellant’s issues had been previously
litigated and that he failed to demonstrate “that the proceedings
resulting in his conviction were so unfair that a miscarriage of
justice occurred which no civilized society can tolerate, or that he
is innocent of the crimes charged.” (PCRA Court Rule 907 Notice,
10/05/12, at unnumbered page 2 (citation omitted); see also
PCRA Court Order, 10/29/12, at 1).
Commonwealth v. Grimes, 75 A.3d 553, 2026 MDA 2012 (Pa. Super. filed
April 12, 2013) (unpublished memorandum at 2–3) (footnote omitted).
Appellant filed a timely appeal to this Court, wherein we concluded the PCRA
petition was untimely and no exception to the time-bar applied. Thus, we
affirmed the order denying Appellant’s fifth petition on April 12, 2013.
Grimes, 75 A.3d 553.
The ensuing procedural history continued as follows:
On April 29, 2013, Appellant filed a federal Habeas Corpus
Petition which was addressed by the Third Circuit Court of
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Appeals.[6] The Third Circuit Court of Appeals initially denied the
Habeas Petition but later remanded [to the District Court] for
resolution of whether Appellant was entitled to have his direct
appeal rights re-instated. On December 4, 2015, a hearing was
held before Magistrate Judge Carlson, at which time the parties
stipulated to re-instate Appellant’s direct appeal rights. As such,
Magistrate Judge Carlson entered a Report and Recommendation
that recommended that the District Court enter an Order
approving the reinstatement of Appellant’s direct appeal rights.
On January 4, 2016, District Judge Robert D. Mariani adopted
Magistrate Judge Carlson’s recommendations and granted
Appellant’s Habeas Corpus Petition.
Pa.R.A.P. 1925(a) Opinion, 1924 MDA 2016, 11/6/17, at 2–3.7
Thus, following the federal court’s grant of Appellant’s habeas corpus
petition, the Commonwealth, on February 2, 2016, filed a motion to reinstate
Appellant’s direct appeal rights and to appoint counsel to assist Appellant in
its preparation. The trial court granted the Commonwealth’s motion on
February 3, 2016, reinstated Appellant’s direct appeal rights, and appointed
Chris Moore, Esquire, as counsel. Appellant filed a timely notice of appeal to
this Court, docketed at 285 MDA 2016. For reasons not clear in the record,
the trial court removed Attorney Moore as counsel and appointed Jennifer
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6 In his habeas corpus petition challenging both his conviction and sentence,
Appellant “asserted that he did not raise these challenges because he ‘never
was able to have a direct appeal due to ineffective counsel waiving my
appellate rights.’ A third claim in the [habeas corpus] petition alleged an
[ineffective-assistance-of-trial-counsel] claim based on counsel’s failure to file
an appeal.” Grimes v. Superintendent Graterford SCI, 619 Fed.Appx.
146, 148 (3d Cir. 2015).
7 This subsequent appeal is identified and discussed infra. We utilize this trial
court opinion due to the procedural irregularities present in this case.
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Smith, Esquire, on March 24, 2016. Attorney Smith filed an amended
Pa.R.A.P. 1925(b) statement on April 25, 2016, but failed to file an appellate
brief on Appellant’s behalf. On October 6, 2016, this Court dismissed the
appeal docketed at 285 MDA 2016 because Attorney Smith failed to file an
appellate brief.
On November 7, 2016, Appellant again filed a counseled petition to
reinstate appellate rights in which Attorney Smith explained that she
inadvertently failed to place this Court’s briefing schedule on her calendar.
Thus, counsel sought reinstatement of Appellant’s direct appeal rights, which
the trial court granted on November 9, 2016. Inexplicably, Appellant, pro se,
filed a PCRA petition seeking reinstatement of his appellate rights on
November 22, 2016. On November 29, 2016, the PCRA court dismissed the
petition as moot, noting that Attorney Smith had already filed both a notice of
appeal and a Pa.R.A.P. 1925(b) statement on November 23, 2016. Order,
11/29/16, at 1; Pa.R.A.P. 1925(a) Opinion, 11/6/17, at 1. This appeal was
docketed at 1924 MDA 2016. Unbelievably, inactivity again reared its ugly
head, and on March 19, 2018, this Court dismissed the appeal because
Attorney Smith again failed to file an appellate brief. Order, 3/19/18, at 1.
On March 27, 2018, Appellant filed a pro se Memorandum of Law in
which he requested the appointment of new counsel. The PCRA court removed
Attorney Smith as counsel and appointed present counsel, Lori Yost, Esquire.
Order, 3/28/18, at 1; Order, 3/29/18, at 1. The PCRA court reinstated
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Appellant’s direct appeal rights on March 28, 2018. Appellant filed another
PCRA petition on April 3, 2018, which the PCRA court dismissed on April 10,
2018, pointing out that because it had reinstated Appellant’s direct appeal
rights on March 28, 2018, the PCRA petition was premature.
Attorney Yost filed the instant notice of appeal on April 27, 2018, at the
present docket number, 728 MDA 2018. Appellant filed a Pa.R.A.P. 1925(b)
statement on May 16, 2018, and the trial court filed its Rule 1925(a) opinion
on July 13, 2018.
Appellant raises the following issues for our review:
I. Whether the trial court abused its discretion in failing to rule
on Appellant’s motion to withdraw his plea as Appellant’s plea was
not knowing, voluntary and intelligent.
II. Whether the trial court abused its discretion in failing to rule
upon Appellant’s motion to modify sentence.
Appellant’s Brief at 4 (unnecessary capitalization omitted).
In assessing challenges to the validity of a guilty plea, we are guided by
the following standard of review. “Pennsylvania law makes clear that by
entering a plea of guilty, a defendant waives his right to challenge on direct
appeal all nonjurisdictional defects except the legality of the sentence and the
validity of the plea.” Commonwealth v. Monjaras-Amaya, 163 A.3d 466,
468 (Pa. Super. 2017); Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa.
Super. 2013). “Our law presumes that a defendant who enters a guilty plea
was aware of what he was doing. He bears the burden of proving otherwise.”
Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011)
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(citation omitted). Post-sentence motions for withdrawal “are subject to
higher scrutiny since courts strive to discourage entry of guilty pleas as
sentence-testing devices.” Commonwealth v. Kehr, 180 A.3d 754, 757 (Pa.
Super. 2018) (quoting Commonwealth v. Broaden, 980 A.3d 124, 129 (Pa.
Super. 2009)). A defendant has no absolute right to withdraw a guilty plea;
rather, the decision to grant such a motion lies within the sound discretion of
the trial court. Kehr, 180 A.3d at 757.
Our Supreme Court recently discussed an appellant’s burden to show
that a trial court abused its discretion in a ruling:
“When a trial court comes to a conclusion through the
exercise of its discretion, there is a heavy burden on the appellant
to show that this discretion has been abused.” Commonwealth
v. Eichinger, 591 Pa. 1, 915 A.2d 1122, 1140 (2007) (citation
omitted). An appellant cannot meet this burden by simply
persuading an appellate court that it may have reached a different
conclusion than that reached by the trial court; rather, to
overcome this heavy burden, the appellant must demonstrate that
the trial court actually abused its discretionary power. Id. “An
abuse of discretion will not be found based on a mere error of
judgment, but rather exists where the trial court has reached a
conclusion which overrides or misapplies the law, or where the
judgment exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will.” Id. Absent an abuse of that
discretion, an appellate court should not disturb a trial court’s
ruling. Id.
Norton, ___ A.3d at ___, 2019 WL 287153 at *7.
Furthermore, it is settled that:
[a] defendant wishing to challenge the voluntariness of a guilty
plea on direct appeal must either object during the plea colloquy
or file a motion to withdraw the plea within ten days of sentencing.
Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). Failure to employ either
measure results in waiver. Historically, Pennsylvania courts
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adhere to this waiver principle because it is for the court which
accepted the plea to consider and correct, in the first instance,
any error which may have been committed.
Lincoln, 72 A.3d at 609–610 (internal quotation marks and some citations
omitted) (emphasis added). For the following reasons, we conclude that a
challenge to the validity of Appellant’s plea is waived.
As noted by the trial court:
[Appellant’s] Motion (docketed as “correspondence”) was filed by
him pro se at a time when he had legal counsel of record. On
June 27, 2011, [Appellant] filed a pro se PCRA [petition] in which
he requested that counsel be appointed for him. On July 6, 2011,
the Trial Court granted [Appellant’s] request for appointed counsel
and appointed Attorney William Graff to represent him.
[Appellant’s] pro se Motion was filed on July 7, 2011. When a
defendant is represented by counsel, he has no right to proceed
as co-counsel in his own defense. See Commonwealth v. Williams,
270 Pa. Super. 27, 410 A.2d 880 (1979).
Pa.R.A.P. 1925(a) Opinion, 7/13/18, at 2. The relevant docket entries indicate
that the pro se motion was forwarded to Appellant’s counsel of record.
Counsel, however, never timely filed a motion to withdraw the plea. As noted
above, in order to preserve an issue related to the validity of a guilty plea, an
appellant must either object during the colloquy or otherwise raise the issue
at the guilty plea hearing, the sentencing hearing, or through a post-sentence
motion. Lincoln, 72 A.3d at 609-610; see also Commonwealth v. Tareila,
895 A.2d 1266, 1270 n.3 (Pa. Super. 2006) (same); Pa.R.A.P. 302(a) (stating
that “[i]ssues not raised in the lower court are waived and cannot be raised
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for the first time on appeal”). Accordingly, Appellant has waived any challenge
to the validity of his guilty plea.8
Even if not waived, we would find that the issue lacks merit. The post-
sentencing standard applicable to post-sentence motions to withdraw a plea
requires manifest injustice. Kehr, 180 A.3d at 757. “Manifest injustice may
be established if the plea was not tendered knowingly, intelligently, and
voluntarily. In determining whether a plea is valid, the court must examine
the totality of circumstances surrounding the plea.” Id. In order to ensure a
voluntary, knowing, and intelligent plea, trial courts, “[a]t a minimum . . .
should ask questions to elicit the following information:”
1) Does the defendant understand the nature of the charges to
which he or she is pleading guilty or nolo contendere?
2) Is there a factual basis for the plea?
3) Does the defendant understand that he or she has the right
to a trial by jury?
4) Does the defendant understand that he or she is presumed
innocent until found guilty?
5) Is the defendant aware of the permissible range of
sentences and/or fines for the offenses charged?
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8 Appellant’s argument in his brief is also lacking, which solidifies our finding
of waiver. He asserts that his plea was not entered knowingly, voluntarily, or
intelligently, but he fails to assert any relevant law in support. Appellant’s
Brief at 13–15. See Pa.R.A.P. 2119(a) (providing that appellate briefs must
contain “such discussion and citation of authorities as are deemed pertinent”);
Commonwealth v. Woodard, 129 A.3d 480 (Pa. 2015) (same);
Commonwealth v. Samuel, 102 A.3d 1001 (Pa. Super. 2014) (holding issue
waived where the only case law cited in support of claim was the standard of
review).
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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?
Pa.R.Crim.P. 590 cmt.; Commonwealth v. Pollard, 832 A.2d 517, 522–523
(Pa. Super. 2003).
As this Court has explained:
In order for a guilty plea to be constitutionally valid, the guilty
plea colloquy must affirmatively show that the defendant
understood what the plea connoted and its consequences. This
determination is to be made by examining the totality of the
circumstances surrounding the entry of the plea. Thus, even
though there is an omission or defect in the guilty plea colloquy,
a plea of guilty will not be deemed invalid if the circumstances
surrounding the entry of the plea disclose that the defendant had
a full understanding of the nature and consequences of his plea
and that he knowingly and voluntarily decided to enter the plea.
Yeomans, 24 A.3d at 1047. Additionally, a written plea colloquy that is read,
completed, signed by the defendant, and made part of the record may serve
as the defendant’s plea colloquy when supplemented by an oral, on-the-record
examination. Commonwealth v. Morrison, 878 A.2d 102, 108-109 (Pa.
Super. 2005) (citing Pa.R.Crim.P. 590 cmt.). Appellant bears the burden of
proving that he was not aware of what he was doing when he entered his plea.
Pollard, 832 A.2d at 523 (internal citation omitted).
“Where the record clearly demonstrates that a guilty plea colloquy was
conducted, during which it became evident that the defendant understood the
nature of the charges against him, the voluntariness of the plea is
established.” Commonwealth v. Rush, 909 A.2d 805, 808 (Pa. Super.
2006). “A person who elects to plead guilty is bound by the statements he
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makes in open court while under oath and may not later assert grounds for
withdrawing the plea which contradict the statements he made at his plea
colloquy.” Yeomans, 24 A.3d at 1047.
Here, the record belies Appellant’s assertion that his plea was entered
involuntarily, unknowingly, and unintelligently. Appellant focuses on the fact
that he did not understand the sentencing guideline ranges applicable to the
charge to which he was pleading. Appellant’s Brief at 13. When he raised this
concern at the plea colloquy, however, both the trial court and defense counsel
answered Appellant. N.T. (Nolo Contendere Plea), 4/21/11, at 3–4.
Appellant also asserts that he understood the charge to which he was
pleading, but professed that he “never commit[ted] any serious bodily
injuries.” Appellant’s Brief at 14; N.T. (Nolo Contendere Plea), 4/21/11, at 4.
The trial court responded, “They are not saying you committed it. They are
saying it was your intent to put the person in fear of imminent serious bodily
injury.” N.T. (Nolo Contendere Plea), 4/21/11, at 4. Thereafter, the trial court
clarified that the plea was not a guilty plea, but one of nolo contendere, or no
contest, because Appellant “won’t admit that you committed the offense.” Id.
at 5.
Appellant executed a written plea agreement that advised him of all
criteria outlined under Pa.R.Crim.P. 590 and indicated that Appellant entered
the plea knowingly and voluntarily. Appellant completed the lengthy written
colloquy by initialing each page. Colloquy, 4/21/11, at 1–11. When Appellant
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stopped initialing because he had a question, the trial court went through the
written colloquy page by page, pausing to ask Appellant if he understood every
concept. N.T. (Nolo Contendere Plea), 4/21/11, at 3–8.
Second, the trial court conducted a lengthy oral plea colloquy with
Appellant. N.T. (Nolo Contendere Plea), 4/21/11, at 2–9. The court answered
every question Appellant raised and offered Appellant more time to decide
whether to proceed. Id. at 3. After the oral colloquy, the trial court, satisfied
that Appellant’s plea was being entered voluntarily, knowingly, and
intelligently, accepted Appellant’s plea. Id. at 8. As this Court has explained,
a written colloquy that is read, completed, signed by the defendant, and made
part of the record may serve as the defendant’s plea colloquy when
supplemented by an oral, on-the-record examination. Morrison, 878 A.2d at
108-109. Considering the totality of circumstances surrounding the plea, the
evidence reflects that Appellant knowingly, voluntarily, and intelligently
entered his plea, and Appellant has failed to carry the burden of establishing
otherwise. Pollard, 832 A.2d at 523. Accordingly, were we to consider
Appellant’s claim, we would deem it to lack merit.
Appellant has abandoned his second issue claiming the trial court
abused its discretion in failing to rule upon Appellant’s motion to modify
sentence. Appellant’s Brief at 16. He acknowledges that Pa.R.Crim.P. 720
provides, “If the judge fails to decide the [post-sentence] motion within 120
days . . . the motion shall be deemed denied by operation of law.”
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Pa.R.Crim.P. 720(B)(3)(a). Thus, he asserts the issue is withdrawn.
Therefore, we do not consider the claim further. Commonwealth v. Bullock,
948 A.2d 818, 823 (Pa. Super. 2008) (the appellant abandoned the contention
set forth in statement of issues).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/27/2019
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