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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
BRYANT D. STARLING, : No. 2123 EDA 2018
:
Appellant :
Appeal from the Judgment of Sentence Entered June 19, 2018,
in the Court of Common Pleas of Delaware County
Criminal Division at No. CP-23-CR-0002623-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
BRYANT STARLING, : No. 2149 EDA 2018
:
Appellant :
Appeal from the Judgment of Sentence Entered June 19, 2018,
in the Court of Common Pleas of Delaware County
Criminal Division at No. CP-23-CR-0002747-2016
BEFORE: STABILE, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 11, 2019
In this consolidated appeal, Bryant Starling appeals from the June 19,
2018 judgments of sentence entered in the Court of Common Pleas of
Delaware County after he entered a negotiated guilty plea to one count each
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of retail theft and conspiracy1 at No. CP-23-CR-0002623-2018 (“2623-2018”)
for which he received an aggregate sentence 9 to 23 months of incarceration.
Appellant’s guilty plea resulted in revocation of his probation at No. CP-23-
CR-2747-2016 (“2747-2016”). At resentencing on the probation violation at
2747-2016, the trial court sentenced appellant to full back time of 585 days
with immediate parole at Count 2 (retail theft) and imposed a new sentence
of 18 to 48 months of incarceration at Count 1 (theft by deception2) to run
consecutive to the sentence imposed at 2623-2018. We affirm.
The trial court set forth the following:
[]2747-2016
On April 25, 2016, [appellant] was arrested and
charged with various offenses, based upon accusations
made by employees of Lowe’s that he had stolen
merchandise from its Havertown, PA store. On
August 8, 2016, he entered into a negotiated plea
agreement and was sentenced to a term of 11.5 to
23 months [of] incarceration on the charge of Theft by
Deception and two years [of] consecutive probation on
the charge of Retail Theft.
[]2623-2018
On November 4, 2017, while on parole, a Marple
Township police officer arrested him for retail theft at
a Walmart store. He was charged with Retail Theft,
Receiving Stolen Property and two counts of
Conspiracy.
1 18 Pa.C.S.A. §§ 3929(a)(1) and 903, respectively.
2 18 Pa.C.S.A. § 3922.
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Violation of Probation/Parole
The 2017 arrest came to the attention of the Delaware
County Adult Probation and Parole Services
Department, which charged him with a violation of his
parole/probation. On June 5, 2018, it issued a
Gagnon II[3] Hearing Report recommending that
(1) on the Retail Theft charge, his probation be
revoked and that he be sentenced to a new
probationary term of two years, and (2) on the Theft
by Deception charge, he be sentenced to full back time
of 585 days.
June 19, 2018 Hearing
The Commonwealth and [appellant] struck a deal on
the new charges, and on June 19, 2018, [appellant]
appeared in court for a plea and sentencing on the
charges pending at []2623-2018 and for a
Gagnon II/Violation of Probation/Parole hearing on the
charges at []2747-2016. Prior to the hearing,
[appellant] signed and initialed a “Guilty Plea
Statement,” which included the following paragraph:
___ 20. If I was on probation or parole at
the time the crimes to which I am
pleading guilty or nolo contendere
were committed, my plea(s) in this
case mean that I have violated my
probation or parole and I can be
sentenced to jail for that violation in
addition to any sentences which I
may receive as a result of these
pleas.
3 Gagnon v. Scarpelli, 411 U.S. 778 (1973); see also Commonwealth v.
Ferguson, 761 A.2d 613 (Pa.Super. 2000) (explaining that when parolee or
probationer is detained pending revocation hearing, due process requires
determination at pre-revocation hearing (Gagnon I hearing) of probable
cause to believe violation was committed, and upon finding of probable cause,
a second, more comprehensive hearing (Gagnon II hearing) follows before
the trial court makes final revocation decision).
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[Appellant] placed his initials to the left of
number “20.”
At the hearing, [appellant’s] counsel questioned him at
length concerning his signing of this document and his
agreement to the terms of it. This Court asked
[appellant] if he understood that the Court was not
bound by any recommendations of the Commonwealth
or the Parole/Probation Department concerning the
sentence to be imposed for a violation of his parole and
probation. [Appellant] answered in the affirmative.
This Court then accepted the plea and sentenced
[appellant] according to its terms.
At the ensuing Violation of Probation hearing, Defense
counsel stipulated “to time, date notice and violations”
of the terms of parole and probation. This Court
rejected the Probation Department’s recommendations
and sentenced [appellant] on the 2016 charges as
follows: ([1]) on Count 2, Theft by Deception,
[appellant] was sentenced to 585 days full back time
with immediate parole, and ([2]) on Count 1, Retail
Theft, [appellant] was sentenced to a term of
incarceration of 18 to 48 months, consecutive to the
sentence imposed in the 2017 charges.
[Appellant] and his counsel both strenuously objected
to the 18 to 48 month sentence, but this Court insisted
that it had advised [appellant] that it was not bound
by the recommendations of the Probation/Parole
Department. Counsel made an oral motion to
withdraw the guilty plea, but that motion was denied
because it was “too late.”
[Appellant’s] counsel then filed written Motions to
Withdraw the Guilty Plea and for Reconsideration of
Sentence. This Court denied both motions.
On July 18, 2018, [appellant] filed a Notice of Appeal.
In his Concise Statement of [Errors] Complained of on
Appeal [pursuant to Pa.R.A.P. 1925(b), appellant’s]
counsel asserts that (1) the guilty plea was not
knowingly, voluntarily and intelligently entered into
due to the court’s imposition of a sentence not in
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accordance with the negotiated terms of the plea, and
(2) this Court erred when it refused to permit
[appellant] to withdraw his plea after sentencing him
in a manner “not in conformance with the negotiated
plea entered into between his Attorney and the
Commonwealth of Pennsylvania.”
Trial court opinion, 11/13/18 at 1-3 (record citations omitted). Thereafter,
the trial court filed its Rule 1925(a) opinion.
Appellant raises the following issues for our review:
I. WAS THE GUILTY PLEA ENTERED BY THE
APPELLANT KNOWING, VOLUNTARY AND
INTELLIGENT IN THAT THE APPELLANT
ENTERED INTO A NEGOTIATED PLEA AS TO
BOTH TRANSCRIPT NUMBERS 2747[-]2016
AND 2623[-]2018 AND THE COURT DID NOT
SENTENCE IN CONFORMANCE WITH SAID
NEGOTIATED PLEA?
II. WAS THE TRIAL COURT IN ERROR FOR
PREVENTING [APPELLANT] TO WITHDRAW HIS
GUILTY PLEA AFTER THE SENTENCE IMPOSED
WAS NOT IN CONFORMANCE WITH THE
NEGOTIATED PLEA ENTERED INTO BETWEEN
HIS ATTORNEY AND THE COMMONWEALTH OF
PENNSYLVANIA?
Appellant’s brief at 4.
“We begin with the principle that 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.” Commonwealth v. Muhammad,
794 A.2d 378, 382 (Pa.Super. 2002) (citation omitted). There are two
different standards for reviewing requests to withdraw a guilty plea, one for a
request to withdraw filed prior to sentencing, and one for a request to
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withdraw filed after sentencing. Commonwealth v. Flick, 802 A.2d 620,
623 (Pa.Super. 2002).
Where, as here, a trial court has imposed a sentence, a defendant may
withdraw his guilty plea “only where necessary to correct a manifest injustice.”
Commonwealth v. Prendes, 97 A.3d 337, 352 (Pa.Super. 2014) (citation
omitted). “A plea rises to the level of manifest injustice when it was entered
into involuntarily, unknowingly, or unintelligently.” Muhammad, 794 A.2d at
383 (citation omitted). A defendant’s disappointment in the sentence imposed
does not rise to the level of “manifest injustice.” Id. (citation omitted).
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. 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.
Commonwealth v. Rush, 909 A.2d 805, 808 (Pa.Super. 2006) (citation and
brackets omitted). “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.” Commonwwealth v. Pollard, 832 A.2d 517, 523 (Pa.Super.
2003) (citations omitted).
Here, appellant claims that his plea was not entered into knowingly,
voluntarily, and intelligently because his sentences on both dockets “were
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presented to [him] as a package deal”4 and because the trial court did not
sentence him in accordance with the “package deal,” it erred in denying his
motion to withdraw his plea. The record, however, belies appellant’s
contention.
The record reflects that appellant executed a written guilty plea
statement wherein he specifically acknowledged that his “plea[] in this case
mean[s] that [he] violated [his] probation or parole and [he] can be sentenced
to jail for that violation in addition to any sentences which [he] may receive
as a result of [his] plea[].” (Appellant’s guilty plea statement, 6/19/18 at 2,
¶ 20.)
At the guilty plea hearing that immediately preceded the Gagnon II
hearing, the Commonwealth read the following recommendation of Delaware
County’s Probation and Parole Department with respect to resentencing at
2747-2016:
[THE COMMONWEALTH]: It says -- [appellant’s]
probation is to be revoked and impose a new sentence
of two years’ probation and [appellant] is to be
released to an available bed date at Coatesville VA.
Now -- and he may have to do full back time of
585 days that --
THE COURT: That’s what it looks like it says to me.
[THE COMMONWEALTH]: Right. To run concurrent to
the sentence imposed on this case -- the new case.
Notes of testimony, 6/19/18 at 8.
4 Appellant’s brief at 11.
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The following colloquy then took place:
THE COURT: All right. You understand I’m not bound
by the recommendation.
[APPELLANT]: Yes, sir.
THE COURT: Correct?
[APPELLANT]: Um-hum.
Id. at 10.
The record reflects that the trial court imposed an aggregate sentence
of 9 to 23 months of incarceration at 2623-2018 in accordance with a
negotiated guilty plea. Nothing in the record before us, however, supports
appellant’s contention that he entered his guilty plea at 2623-2018 based on
a “package deal” which would result in the imposition of a concurrent two-
year probationary term at 2747-2016 in accordance with the recommendation
of Delaware County’s Probation and Parole Department. Therefore, because
the totality of the circumstances surrounding the entry of appellant’s guilty
plea disclose that appellant fully understood the nature and consequences of
his plea and that he knowingly and voluntarily decided to enter the plea, his
plea is valid.
Judgments of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/11/19
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