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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
JERMAINE DAVIS
Appellant No. 1237 EDA 2017
Appeal from the Judgment of Sentence February 27, 2017
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0003675-2016
BEFORE: PANELLA, J., MOULTON, J., and RANSOM, J.
MEMORANDUM BY MOULTON, J.: FILED DECEMBER 15, 2017
Jermaine Davis appeals from the February 27, 2017 judgment of
sentence1 entered in the Northampton County Court of Common Pleas. We
affirm.
The trial court set forth the history of this case as follows:
1. This matter was originally assigned to the Honorable F.P.
Kimberly McFadden on January 13, 2017, following [Davis’]
arraignment.
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1While Davis purports to appeal the trial court’s March 7, 2017 order
denying his post-sentence motion to withdraw guilty plea, the appeal properly
lies from the judgment of sentence. See Commonwealth v. W.H.M., Jr.,
932 A.2d 155, 158 n.1 (Pa.Super. 2007) (“An appeal from an order denying a
post-trial motion is procedurally improper because a direct appeal in a
criminal proceeding lies from the judgment of sentence.”).
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2. [Davis] was charged at term number 3675-2016 with
possession with intent to deliver heroin and possession with
intent to deliver cocaine.[2] At term number 3320-2016,
[Davis] was charged with delivery of heroin and criminal use
of communication facility.[3] Attorney Alexander Karam was
appointed to represent [Davis].
3. On February 10, 2017, [Davis] appeared before the Court
for a pre-trial conference, during which a negotiated plea
was discussed. [Davis] requested one week to consider the
plea offer, and the matter was re-scheduled for another pre-
trial conference on February 17, 2017.
4. At the February 17, 2017 conference, [Davis] requested
a new public defender, which was denied.
5. [Davis] stated that he wished to proceed with trial, which
was scheduled to begin on February 27, 2017.
6. On February 27, 2017, [Davis] again appeared before the
Court, and the Court began the process of requesting a jury
pool to begin [Davis’] trial. However, [Davis] requested to
re-open plea negotiations with the Commonwealth prior to
the start of trial proceedings.
7. After approximately two hours of conferring with counsel
and negotiating with the Assistant District Attorney
[(“ADA”)], a plea agreement was reached wherein [Davis]
would plead guilty to one count of possession of heroin with
intent to deliver, less than one gram, and all remaining
charges would be withdrawn.
8. [Davis] entered into the negotiated plea before the
undersigned and was sentenced to 18 to 36 months, which
was the agreed upon sentence, and which was a mitigated
sentence in light of [Davis’] prior record score of five.1
1The standard range for possession of heroin
with intent to deliver, with a prior record score
of five, would be 21 to 27 months.
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2 35 P.S. § 780-113(a)(30).
3 35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 7512(a), respectively.
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9. On March 1, 2017, [Davis] wrote to the undersigned
requesting to withdraw his guilty plea. Mr. Karam was
directed to file a formal motion on [Davis’] behalf, which
was filed on March 2, 2017. A hearing on the Motion to
Withdraw Guilty Plea was held on March 6, 2017.
Trial Ct. Op., 3/7/17, at 1-2.
On March 7, 2017, the trial court denied Davis’ post-sentence motion to
withdraw his guilty plea. On March 21, 2017, Davis timely filed a notice of
appeal.
Davis raises the following issue on appeal: “Whether the Trial Court
erred and abused its discretion in denying [Davis’] Post-Sentence Motion to
Withdraw Guilty Plea despite the fact [that Davis’] plea was not knowingly,
intelligently, voluntarily, or understandingly entered due to his mental state
and lack of sleep causing manifest injustice[.]” Davis’ Br. at 3.
We review a trial court’s decision to grant or deny a petitioner’s motion
to withdraw guilty plea for an abuse of discretion. Commonwealth v. Hart,
___ A.3d ____, 2017 PA Super 355, *4 (filed November 13, 2017).
This Court recently discussed the standard for a post-sentence
withdrawal of a guilty plea:
[A]fter the court has imposed a sentence, a defendant can
withdraw his guilty plea “only where necessary to correct a
manifest injustice.” Commonwealth v. Starr, 450 Pa.
485, 301 A.2d 592, 595 (1973). “[P]ost-sentence motions
for withdrawal are subject to higher scrutiny [than pre-
sentence motions to withdraw4] since courts strive to
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4When a petitioner seeks to withdraw his guilty plea prior to the
imposition of a sentence “the court may, in its discretion, permit, . . .
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discourage the entry of guilty pleas as sentencing-testing
devices.” Commonwealth v. Kelly, 5 A.3d 370, 377
(Pa.Super. 2010), appeal denied, 613 Pa. 643, 32 A.3d
1276 (2011).
...
To be valid [under the “manifest injustice” standard], a
guilty plea must be knowingly, voluntarily and intelligently
entered. Commonwealth v. Pollard, 832 A.2d 517, 522
(Pa.Super. 2003). “[A] manifest injustice occurs when
a plea is not tendered knowingly, intelligently, voluntarily,
and understandingly.” Commonwealth v. Gunter, 565
Pa. 79, 771 A.2d 767, 771 (2001). The Pennsylvania Rules
of Criminal Procedure mandate pleas be taken in open court
and require the court to conduct an on-the-record colloquy
to ascertain whether a defendant is aware of his rights and
the consequences of his plea. Commonwealth v.
Hodges, 789 A.2d 764, 765 (Pa.Super.
2002) (citing Pa.R.Crim.P. 590). Under Rule 590, the court
should confirm, inter alia, that a defendant understands:
(1) the nature of the charges to which he is pleading guilty;
(2) the factual basis for the plea; (3) he is giving up his right
to trial by jury; (4) and the presumption of innocence; (5)
he is aware of the permissible ranges of sentences and fines
possible; and (6) the court is not bound by the terms of the
agreement unless the court accepts
the plea. Commonwealth v. Watson, 835 A.2d 786
(Pa.Super. 2003). The reviewing [c]ourt will evaluate the
adequacy of the plea colloquy and the voluntariness of the
resulting plea by examining the totality of the circumstances
surrounding the entry of that plea. Commonwealth v.
Muhammad, 794 A.2d 378 (Pa.Super. 2002).
Pennsylvania law presumes a defendant who entered
a guilty plea was aware of what he was doing, and the
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the withdrawal of a plea of guilty or nolo contendere and the substitution of
a plea of not guilty.” Pa.R.Crim.P. 591(A). We have further explained that
“[i]f the trial court finds ‘any fair and just reason’, withdrawal of
the plea before sentence should be freely permitted, unless the prosecution
has been ‘substantially prejudiced.’” Commonwealth v. Islas, 156 A.3d
1185, 1188 (Pa.Super. 2017) (quoting Commonwealth v. Forbes, 299 A.2d
268, 271 (Pa. 1973)).
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defendant bears the burden of proving otherwise.
Pollard, supra.
Commonwealth v. Kpou, 153 A.3d 1020, 1023-24 (Pa.Super. 2016).
Davis claims that “his plea was not knowingly, intelligently, voluntarily
or understandingly entered” because at the time he entered his guilty plea he
was not “in the right state of mind due to his mental state and lack of sleep.”
Davis’ Br. at 7. He contends that “he was under the impression he was going
to trial.” Id. Davis further claims that the record is devoid of evidence
showing that Commonwealth would be prejudiced had his motion been
granted.
The trial court found:
11. Here, the record is clear that [Davis] entered into a
negotiated guilty plea and received the negotiated sentence.
He stated that he signed the information for term number
3675-2016.2 N.T. 2/27/17 at 2. [Davis] executed both the
guilty plea statement and post-sentencing colloquy, with the
assistance of counsel, and stated that he understood all of
the questions therein. Id. at 2-3, 7. [Davis] stated that he
understood what he was doing despite taking medication.[5]
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5 The following exchange occurred during the oral guilty plea colloquy:
THE COURT: . . . Are you currently taking medications for
any reason?
MR. DAVIS: Yes.
THE COURT: What is your medication?
MR. DAVIS: Seroquel.
THE COURT: Okay. Just Seroquel?
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Id. The Court reviewed [Davis’] rights with him, including
his presumption of innocence, right to trial by jury, right to
question or present witnesses, and the right to testify or not
to testify at trial. [Davis] stated that he wanted to give
those rights up and wanted to plead guilty.[6] Id. at 3-5.
[Davis] further stated that he was satisfied with Mr. Karam’s
representation. Id. at 5.
2 Misidentified in the transcript as 3673-2016.
All charges at term number 3320-2016 were
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MR. DAVIS: Just Seroquel right now.
THE COURT: Does it in any way affect your ability to
understand what we are doing here today?
MR. DAVIS: Um-um.
THE COURT: You understand?
MR. DAVIS: Yeah.
THE COURT: Okay. And I also have a post-sentencing
colloquy, which I assume that Mr. Karam went over with
you?
MR. DAVIS: Yes.
THE COURT: Did you understand it?
MR. DAVIS: Yeah.
N.T., 2/27/17, at 2-3.
6 More specifically, in Davis’ written guilty plea colloquy, he answered
“Y” to the question: “Do you understand that by pleading guilty, you give up
your right to a trial, either by a jury or before a Judge?” Guilty Plea Stmt.
(Colloquy), 2/27/17, ¶ 24. Further, during the oral guilty plea colloquy, the
trial court asked Davis: “Do you understand you have a right to have your
case tried by a judge alone or by a jury . . . ? Davis responded, “Yes.” The
trial court then asked: You are giving all those rights up today. Is that what
you want to do?” Davis responded, “Yeah.” The trial court further asked
“You’re sure this is what you want to do?” Davis again responded, “Yeah.”
N.T., 2/27/17, at 4-5.
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withdrawn in accordance with the terms of the
negotiated plea.
12. A sufficient factual basis for the plea was also placed on
the record by [ADA] Thompson, including that, based upon
the number of packets of heroin in [Davis’] possession, the
Commonwealth could present witnesses to testify that the
amount was more than would be possessed for personal
use. Id. at 6. [Davis] stated that he understood the factual
basis for his plea. Id. at 5. [Davis] further stated that by
entering the plea, he understood he would be waiving future
claims. Id. at 8.
13. Based on the foregoing, it is clear that [Davis’] guilty
plea was entered both knowingly and voluntarily, and there
has been no showing of manifest injustice such as to permit
[Davis] to withdraw his guilty plea[] following sentencing.
Trial Ct. Op., 3/7/17, 3-4. We agree.
Further, we note that whether the Commonwealth has been
substantially prejudiced is a factor in the standard for pre-sentence motions
to withdraw guilty plea, not post-sentence motions to withdraw. Compare
Commonwealth v. Carrasquillo, 115 A.3d 1284, 1292 (Pa. 2015) (stating
that pre-sentence motions to withdraw guilty plea should be liberally allowed
when petitioner provides fair and just reason and Commonwealth has not been
substantially prejudiced); Commonwealth v. Baez, 169 A.3d 35, 39
(Pa.Super. 2017) (same); Islas, 156 A.3d at 1188 (same); Commonwealth
v. Elia, 83 A.3d 254, 261 (Pa.Super. 2013) (same), with Hart, 2017 PA Super
355 at *4 (stating that after imposition of sentence, trial court may grant
motion to withdraw guilty plea only to correct a manifest injustice); Kpou,
153 A.3d at 1023-24 (same); Commonwealth v. Broaden, 980 A.2d 124,
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129 (Pa.Super. 2009) (same); Commonwealth v. Flick, 802 A.2d 620, 623
(Pa.Super. 2002) (same).
Accordingly, we conclude that the trial court did not abuse its discretion
in denying Davis’ post-sentence motion to withdraw guilty plea. See Kpou,
153 A.3d at 1023-24.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/15/17
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Com. v. Davis, J.
Combined Opinion