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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
EDWARD LOVE :
:
Appellant : No. 556 EDA 2021
Appeal from the Judgment of Sentence Entered May 15, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004334-2018
BEFORE: BOWES, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 4, 2022
Appellant Edward Love appeals from the Judgment of Sentence entered
in the Court of Common Pleas of Philadelphia County on May 15, 2019,1
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* Former Justice specially assigned to the Superior Court.
1 The trial court docket reveals that on May 20, 2019, a counseled “Motion For
Reconsideration Of Sentence” was filed on Appellant’s behalf. On May 24,
2019, Appellant’s new counsel filed a “Motion To Withdraw Plea Of Guilty.” On
August 14, 2019, an “Order Denying Motion To Withdraw Guilty Plea” was
filed. On February 27, 2020, a PCRA petition was filed. On March 4, 2021, an
“Order Granting Reinstatement Of Appellate Rights Nunc Pro Tunc” was filed.
On March 8, 2021, counsel for Appellant filed the instant notice of appeal
stating the appeal was from the order entered “on the 14 of August, 2019”
(emphasis added). Counsel for Appellant erroneously appealed from the
August 14, 2019 order denying the post-sentence motion. See
Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa.Super. 2001)
(en banc) (citation omitted), appeal denied, 800 A.2d 932 (Pa. 2002) (“In a
criminal action, appeal properly lies from the judgment of sentence made final
by the denial of post-sentence motions.”). The Appeal Docket has been
corrected to reflect that the appeal lies from the judgment of sentence
imposed on May 15, 2019.
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following his open guilty plea.2 On appeal, Appellant asserts he has offered a
“fair and just” reason for withdrawing his guilty plea and that the
Commonwealth will not be prejudiced were he permitted to do so. Following
our review, we affirm.
The trial court set forth the relevant facts and procedural history herein
as follows:
1. CASE HISTORY
On December 26, 2018, [Appellant] entered into a non-
negotiated open plea to the charges of Aggravated Assault F2,
Criminal Attempt-Criminal tres F2, Criminal mischief S, Poss
Instrument of Crime M1, Simple Assault M2, and Recklessly
Endangering Another Person M2.
On May 15, 2019, [A]ppellant was sentenced to 18-36
months[’] confinement on the Aggravated Assault F2 and the Poss
Instrument of Crime M1. The remaining charges were nolle
prossed.
A motion to withdraw guilty plea was filed on May 24, 2019
and subsequently denied on August 14, 2019. Appellant then filed
a PCRA on February 27, 2020. The PCRA petition was granted for
the purpose of reinstating appeal rights on March 4, 2021. A
notice of appeal was filed on March 8, 2021.
2. FACTUAL HISTORY
On May 7th, 2018, the complainant arrived home around the
1900 block of Kinsey St. in Philadelphia. She saw [A]ppellant
urinating on the sidewalk by her house. She told him to stop and
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2Under an open guilty plea, the defendant does not enter into an agreement
with the Commonwealth, and there is no quid pro quo exchange between the
defendant and the Commonwealth whereby the Commonwealth agrees to
some action in exchange for the defendant’s guilty plea. Pa.R.Crim.P. 590(B).
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at that time an argument ensued. Complainant then stepped out
of her house to tell him to go away. Appellant approached the
complainant and punched her in her mouth.
Trial Court Opinion, filed 12/23/21, at 1-2.
On May 31, 2021, Appellant filed a Statement of Matters Complained of
on Appeal pursuant to Pa.R.A.P. 1925(b). On December 23, 2021, the trial
court filed its Rule 1925(a) Opinion.
In his brief, Appellant presents a single issue for this Court’s review:
Whether Appellant’s motion to withdraw his plea of guilty offers a
fair and just reason for rescinding Appellant’s plea and withdrawal
can be accomplished without substantial prejudice to the
Commonwealth?
Brief for Appellant at 7.
Appellant argues the trial court has the discretion to permit a criminal
defendant to withdraw his or her guilty plea for any fair and just reason and
that his assertion of innocence constitutes such a reason. Brief for Appellant
at 12, 13. Appellant further contends he had been provided with a “false
understanding” of the terms of his plea agreement and told counsel he was
“uncomfortable” taking the plea. He also stresses the steps he has made to
address his anger management issues and his family’s need for his assistance
support his position that he should be permitted to withdraw his guilty plea.
Id. at 14. Appellant claims he informed trial counsel of his desire to withdraw
his plea right after he was sentenced and posits that the Commonwealth will
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not incur substantial prejudice were he permitted to rescind his plea. Id. at
14-15.
A defendant's burden of proof for withdrawing a guilty plea “differs
depending on whether the defendant seeks to withdraw the plea before or
after sentencing.” Commonwealth v. Hart, 174 A.3d 660, 664 (Pa.Super.
2017). Herein, there is no dispute Appellant sought to withdraw his guilty
plea after his sentence had been imposed. In Commonwealth v. Broaden,
980 A.2d 124 (Pa.Super. 2009), this Court summarized the principles
governing post-sentence motions to withdraw pleas as follows:
[P]ost-sentence motions for withdrawal are subject to higher
scrutiny since courts strive to discourage entry
of guilty pleas as sentence-testing devices. A defendant must
demonstrate that manifest injustice would result if the court were
to deny his post-sentence motion to withdraw a guilty plea.
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. A deficient plea does not per
se establish prejudice on the order of manifest injustice.
Id. at 129 (citations omitted). “It is well-settled that the decision whether to
permit a defendant to withdraw a guilty plea is within the sound discretion of
the trial court.” Commonwealth v. Hart, 174 A.3d 660, 664 (Pa.Super.
2017).
Instantly, the trial court found Appellant did not disagree with the facts
that were read to him during the colloquy portion of his guilty plea hearing.
Trial Court Opinion, 12/23/21, at 3 (unnumbered). The court also stated
Appellant completed a written guilty plea colloquy which it reviewed with him
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on in detail. At that time, the trial court informed Appellant he was presumed
innocent, had an absolute right to a trial, and did not have to plead guilty.
The trial court also explained the maximum sentence Appellant could face.
Appellant neither expressed any concerns regarding his rights with the trial
court nor asked for additional time to consult with his counsel. Instead,
Appellant affirmatively stated he understood his rights and wished to enter a
guilty plea. Id. at 4-5. The trial court noted that Appellant expressed
dissatisfaction with his guilty plea only after he was sentenced, “not because
he ever actually felt discomfort in pleading before this [c]ourt.” Id. at 5.
Following our review of the record, we agree.
In setting forth his arguments, Appellant erroneously relies upon the
standard of review for a presentence motion to withdraw a guilty plea,
although he did not file his motion to withdraw his plea until after he had been
sentenced and his post sentence motion had been denied.3
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3 Besides relying upon the incorrect standard, Appellant erroneously applies it
when relying upon Commonwealth v. Carrasquillo, 78 A.3d 1120, 1126
(Pa.Super. 2003) for the proposition that that “no ‘rational’ support is required
by the law to accompany the assertion of innocence.” Brief for Appellant at
13. To the contrary, the Pennsylvania Supreme Court has held that controlling
jurisprudence on pre-sentence assertions of innocence requires an appellant
to demonstrate a fair and just reason for withdrawing
his plea. Commonwealth v. Carrasquillo, 115 A.3d 1284, 1292 (Pa. 2015).
As to what constitutes such a qualifying reason, this Court has observed:
The Carrasquillo Court, breaking with prior precedent, held that
a bare assertion of innocence is no longer a fair and just reason
permitting a pre-sentence withdrawal of a guilty plea. Instead, “a
defendant's innocence claim must be at least plausible to
(Footnote Continued Next Page)
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In Commonwealth v. Broaden, 980 A.2d 124 (Pa.Super. 2009), this Court
described the less stringent standard and noted that “prior to the imposition
of sentence, a defendant should be permitted to withdraw his plea for any fair
and just reason, provided there is no substantial prejudice to the
Commonwealth.” Broaden, 980 A.2d at 128 (citation and quotation marks
omitted).
Appellant’s signed, written guilty plea colloquy and his verbal
representations to the trial court at the guilty plea hearing that he understood
the terms thereof belie his bald claims of innocence and discomfort he now
asserts. N.T., 12/26/18, at 5. After the prosecutor recited the facts that
____________________________________________
demonstrate, in and of itself, a fair and just reason for
presentence withdrawal of a plea.” Carrasquillo, 115 A.3d at
1292. Our High Court outlined that the correct inquiry “on
consideration of such a withdrawal motion is whether the accused
has made some colorable demonstration, under the
circumstances, such that permitting withdrawal of the plea would
promote fairness and justice.” Id. In that decision, our Supreme
Court ruled that the defendant had not offered a plausible
innocence claim given that it was rather bizarre—a “devil made
me to it” claim of innocence—and since the innocence claim was
offered just prior to sentencing. Id. See also Commonwealth v.
Hvizda, [116 A.3d 1103 (Pa. 2015)] (companion case
to Carrasquillo).
Commonwealth v. Baez, 169 A.3d 35, 39 (Pa.Super. 2017)
As shall be discussed more fully infra, Appellant’s statements made
during not only the written and oral plea colloquies but also at
the sentencing hearing admitted the accusations against him. Therefore,
without a plausible claim of innocence, a fair and just reason
for withdrawing Appellant’s plea was lacking even if he had sought to
withdraw his plea pre-sentence. See Carrasquillo, 115 A.3d at 1292.
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formed the basis of all the charges against Appellant, the trial court asked
Appellant if there were “anything [he] wished to disagree with,” to which
Appellant replied “No.” Id. at 6-7.
Appellant again admitted his guilt to the trial court at the sentencing
hearing when he said, prior to his sentence being imposed:
I’d first like to apologize to the victim and her family. . . . I wish
that I could have taken that incident back, because it just totally
got out of hand. . . . It was just an incident-not to minimize it-
that got out of hand and I’m working towards it never happening
again by obtaining anger management that I signed myself up for.
. . . I know that I am not perfect, and I also know that I made
mistakes, but people do change. . . .
N.T. 5/15/19, at 30-31.
Furthermore, as the Commonwealth stresses in its brief:
[Appellant] plead guilty in December of 2018 and was not
sentenced until May of 2019. At no point in the intervening months
did he declare his innocence or ask to withdraw his guilty plea.
Even after sentencing, [Appellant] filed a post-sentence motion to
reconsider the sentence which explicitly admitted his guilt: “the
defendant demonstrated responsibility for his actions by entering
a guilty plea” and that he is “taking steps to address any anger
management issues by taking classes” ([Appellant’s] Post-
sentence Motion 9/20/19, 2).
Brief for the Commonwealth as Appellee at 6.
Moreover, to the extent Appellant states he misunderstood the
implications of pleading guilty due to trial counsel’s representations and that
trial counsel had been unprepared to call character witnesses on his behalf,
such arguments sound in ineffective assistance of counsel, which must be
raised on collateral review. See Commonwealth v. Holmes, 79 A.3d 562,
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576 (Pa. 2013) (reaffirming the holding in Commonwealth v. Grant, 813
A.2d 726 (Pa. 2002), that, absent certain limited exceptions, claims of
ineffective assistance of counsel should be deferred until collateral review
under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546)).
In light of all of the foregoing, the totality of the circumstances supports
the conclusion that Appellant knowingly, voluntarily, and intelligently entered
into the guilty plea. Thus, he cannot show he suffered prejudice on the order
of manifest injustice required for the withdrawal of a plea after he
was sentenced. Accordingly, we affirm his judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/4/2022
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