J-S31001-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ANDRE LEMONT CROMWELL
Appellant No. 481 WDA 2014
Appeal from the Judgment of Sentence February 7, 2014
In the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0001535-2013
BEFORE: PANELLA, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, J. FILED MAY 25, 2017
Appellant, Andre Lemont Cromwell, appeals from the judgment of
sentence entered after he pled guilty to robbery1 and recklessly endangering
another person (“REAP”).2 Cromwell contends that the trial court erred in
refusing to allow him to withdraw his guilty plea after sentencing. Further,
Cromwell alleges that he involuntarily entered the guilty plea due to trial
counsel’s ineffectiveness. After careful review, we affirm.
On May 23, 2013, Cromwell robbed Ruth Blackmon at gunpoint. As a
result, Cromwell was charged with robbery and REAP. The court appointed
Thomas Agrafiotis, Esquire to represent Cromwell.
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1
18 Pa.C.S.A. § 3701(a)(1)(ii).
2
18 Pa.C.S.A. § 2705.
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Between the appointment of counsel and start of trial, Cromwell filed
multiple petitions, including a pro se motion for new counsel and a petition
under Rule 600 seeking nominal bail. The trial court denied Cromwell’s
motion for new counsel, but granted his petition for nominal bail on February
3, 2014. On February 6, 2014, the morning of trial, Cromwell presented an
emergency motion for continuance, citing the defense’s inability to
adequately prepare for trial. The trial court denied Cromwell’s motion, and
the Commonwealth presented its case. The next morning, Cromwell entered
a negotiated guilty plea to the above-mentioned charges and was
immediately sentenced to an aggregate period of five to ten years’
imprisonment.
On February 18,2014, Cromwell filed a petition to withdraw his guilty
plea. Through his petition, Cromwell claimed that he felt pressure into
pleading guilty, and, therefore, his guilty plea was not knowing, intelligent,
or voluntary. The trial court denied Cromwell’s petition, but appointed him
new counsel. Cromwell appealed.3
On appeal, Cromwell raises the following issues:
1. WHETHER THE TRIAL COURT ERRED IN DENYING MR.
CROMWELL’S REQUEST TO WITHDRAW HIS GUILTY PLEA TO
5 TO 10 YEARS’ INCARCERATION WHERE THE TOTALITY OF
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3
Cromwell’s appeal was initially remanded to the trial court after his second
court-appointed counsel failed to file a statement pursuant to Rule 1925(b).
Upon remand, the trial court appointed current counsel, who timely filled a
Rule 1925(b) statement.
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THE CIRCUMSTANCES REVEAL THE PLEA WAS ENTERED
INVOLUNTARILY DUE TO THE COERCIVE ATMOSPHERE
CREATED BY THE MAGNITUDE OF THE POSSIBLE SENTENCE
MR. CROMWELL FACED – i.e., UP TO 20 YEARS IN JAIL – AND
COUNSEL’S CONSTANT AND ADMITTED LACK OF
PREPARATION FOR TRIAL?
2. WHETHER PLEA COUNSEL RENDERED INEFFECTIVE
ASSISTANCE TO MR. CROMWELL WHERE COUNSEL’S LACK
OF ADVOCACY AND PREPARATION CAUSED MR. CROMWELL
TO ENTER AN INVOLUNTARY GUILTY PLEA TO 5 TO 10 YEARS’
IMPRISONMENT RATHER THAN FACE A POSSIBLE SENTENCE
OF 10 TO 20 YEARS’ INCARCERATION?
Appellant’s Brief, at 5.
We address Cromwell’s second claim of error first. See Appellant’s
Brief, at 29-38. Specifically, Cromwell alleges that trial counsel’s poor
performance caused Cromwell to enter into an involuntary guilty plea. See
id., at 30. However, we decline to reach the merits of this argument as it is
premature.
Generally, ineffective assistance of counsel claims must be deferred
until collateral review. See Commonwealth v. Holmes, 79 A.3d 562, 576
(Pa. 2013). However, our Supreme Court in Holmes set forth two
exceptions to the general rule: (1) where the trial court determines that the
ineffectiveness claim is “both meritorious and apparent from the record so
that immediate consideration and relief is warranted[;] or (2) where the trial
court finds “good cause” for review and the defendant makes a “knowing
and express waiver of his entitlement to seek PCRA review from his
conviction and sentence, including an express recognition that the waiver
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subjects further collateral review to the time and serial petition restrictions
of the PCRA.” 79 A.3d at 564, 577.
The trial court did not find that Cromwell’s ineffectiveness claim was
readily apparent from the record. Further, there is no indication in the record
that Cromwell made a knowing and intelligent waiver of his entitlement to
seek PCRA review. Thus, neither exception is applicable. Accordingly, we
dismiss Cromwell’s ineffectiveness claims as premature without prejudice to
him raising them in a timely collateral proceeding. See, e.g.,
Commonwealth v. Reid, 117 A.3d 777, 787 (Pa. Super. 2015) (finding
ineffectiveness claims raised on direct appeal were premature pursuant to
Holmes).
Next, Cromwell challenges the trial court’s denial of his request to
withdraw his guilty plea. See Appellant’s Brief, at 5, 16-28. Specifically,
Cromwell contends that the coercive atmosphere surrounding his guilty plea,
created by “counsel’s poor performance, counsel’s lack of advocacy
throughout the case, counsel’s failure to prepare for trial, and the reality
that [] Cromwell faced a sentence that could be twice the amount to which
he pled guilty,” rendered the plea involuntary. See id., at 28. Due to these
circumstances, Cromwell alleges that the trial court erred by failing to allow
Cromwell to withdraw the plea. See id.,
”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,
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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
withdraw filed after sentencing. See Commonwealth v. Flick, 802 A.2d
620, 623 (Pa. Super. 2002). Here, Cromwell sought to withdraw his guilty
plea after sentencing.
Once a 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
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guilty plea was aware of what he was doing. He bears the burden of proving
otherwise.” Id. (citation omitted).
In addressing Cromwell’s claim, the trial court provided the following
analysis:
There is no evidence in the record suggesting that [Cromwell]
entered his plea involuntarily. On the contrary, the record
provides overwhelming evidence supporting the conclusion that
[Cromwell] entered his plea knowingly, intelligently, and
voluntarily, and that he admitted to committing the offenses and
took responsibility for his actions. The court explained
[Cromwell’s] rights to him, and made certain that there was a
factual basis for the plea (Victim’s testimony, including cross-
examination) and that [Cromwell] understood the nature of the
charges and the possible sentences he could receive, as is shown
in [Cromwell’s] extensive verbal and written colloquies.
Therefore, as [Cromwell] did not enter his plea involuntarily, the
“manifest injustice” required for a post-sentence withdrawal of a
guilty plea does not exist in this case, and the trial court thus did
not err in denying [Cromwell’s] petition to withdraw his plea.
Trial Court Opinion, 11/10/16, at 8-9 (internal citations to the record
omitted).
After carefully reviewing the record, we agree with the trial court’s
conclusion. Cromwell was advised of his rights and clearly understood the
consequences of his guilty plea. Further, the record belies Cromwell’s claims
that trial counsel’s poor performance led to an involuntary guilty plea.
Cromwell clearly indicated that he was voluntarily entering into the guilty
plea and that he was satisfied with counsel’s performance. The totality of
the circumstances indicates that Cromwell knowingly, intelligently, and
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voluntarily entered into the plea. See Rush, 90 A.2d at 808. Thus, Cromwell
failed to carry his burden of showing “manifest injustice”
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/25/2017
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