Com. v. Patterson, C. ( 2019 )


Menu:
  • J-S64026-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    CHARLIE PATTERSON                          :
    :
    Appellant               :   No. 2266 EDA 2017
    Appeal from the Judgment of Sentence February 2, 2017
    In the Court of Common Pleas of Montgomery County Criminal Division
    at No(s): CP-46-CR-0007382-2011
    BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.
    MEMORANDUM BY OLSON, J.:                            FILED FEBRUARY 12, 2019
    Appellant, Charlie Patterson, appeals from the judgment of sentence
    entered on February 2, 2017, following remand and resentencing on his guilty
    plea conviction for one count of possession with intent to deliver a controlled
    substance (marijuana).1 We affirm.
    We previously summarized the facts and procedural history relevant to
    the current appeal as follows:
    On June 10, 2013, Appellant entered into an open guilty plea to
    the charge of possession of a controlled substance (marijuana)
    with the intent to deliver. During the colloquy, Appellant
    acknowledged that his lawyer informed him of the
    Commonwealth's intention to seek imposition of a five-year
    statutory mandatory minimum sentence from which the judge
    would have no power to deviate under the law. N.T., 6/10/13, at
    5. Plea Counsel likewise referred to the applicability of the
    “mandatory minimum sentence” throughout the hearing, and the
    ____________________________________________
    1   35 P.S. § 780-113(a)(30).
    J-S64026-18
    court also informed Appellant that it “would be constrained on
    some level, because the Commonwealth is going to file the
    mandatory minimum.” [Id.] at 13–14.
    One week later, on June 17, 2013, the United States Supreme
    Court decided Alleyne v. United States, ––– U.S. ––––, 
    133 S. Ct. 2151
    (2013), in which it held for the first time that any fact
    triggering a mandatory minimum sentence must first be
    submitted to a jury and proved beyond a reasonable doubt.
    Nevertheless, the Commonwealth subsequently filed its “Notice of
    Intent to Seek Mandatory Sentence,” referencing the statutory
    mandatory minimum sentence of five years' incarceration and a
    mandatory minimum fine of $50,000[.00].
    At the sentencing hearing of September 6, 2013, however, the
    court acknowledged that the Commonwealth and Appellant had
    reached a negotiated agreement for a term of incarceration of four
    to eight years with no fine. There is no indication in the transcript
    that the Alleyne decision influenced this change in course or that
    Appellant was aware of the decision's implications, and, in fact,
    statements by the court imply that the statutory mandatory
    minimum remained applicable as a matter of course and would
    have been implemented as indicated during the guilty plea but for
    the “eminently reasonable” decision of the Commonwealth to
    “waiv[e]” its right to enforce it. N.T., 9/6/13, at 2, 5. The court
    accepted the negotiated agreement and imposed sentence
    accordingly. Plea counsel filed neither a post-sentence motion nor
    a direct appeal.
    On September 15, 2014, Appellant filed a pro se petition for relief
    under the [Post Conviction Relief Act (PCRA)], and the court
    appointed PCRA counsel. PCRA counsel filed an amended petition
    on November 24, 2014 averring that plea counsel's ineffective
    failure to advise Appellant of the Alleyne decision and its potential
    impact on his case induced Appellant to plead guilty.
    Commonwealth v. Patterson, 
    143 A.3d 394
    , 396 (Pa. Super. 2016))
    (footnotes omitted). The PCRA court denied relief and an appeal resulted.
    Ultimately, we vacated the PCRA court’s order denying Appellant relief,
    remanded the matter to the PCRA court, and concluded:
    -2-
    J-S64026-18
    It remains for the PCRA court, however, to conduct an evidentiary
    hearing to determine whether counsel did, in fact, fail to advise
    Appellant about Alleyne's applicability to his case. The record of
    the sentencing hearing, which contains multiple references to the
    favorability of the negotiated sentence over the mandatory
    minimum sentence that could otherwise apply, supports
    Appellant's position sufficiently to warrant remand, where he may
    present evidence that he agreed to the negotiated sentence only
    under the undue influence of an unconstitutional mandatory
    minimum sentencing scheme. Proof of such prejudice stemming
    from counsel's failure to advise him properly of the law would
    entitle Appellant to a new sentencing hearing. An additional
    showing that Appellant would have withdrawn his guilty plea
    altogether had counsel properly advised him of Alleyne and the
    effect it could have on his sentencing would entitle him to
    withdraw his guilty plea.
    
    Id. at 399
    (internal citation omitted).
    Thereafter,
    [o]n remand, at a hearing on February 2, 2017, the District
    Attorney negotiated an agreed disposition of the counseled,
    amended PCRA petition with Erin Lentz-McMahon, Esquire, who
    was newly appointed to represent [Appellant].            Under the
    agreement, [Appellant] was resentenced to a term of
    two-and-a-half to five years[’] total confinement, with the original
    commitment date unchanged. The new sentence, filed [on]
    February 3, 2017, fell below the mitigated range of thirty-one
    months prescribed by the [sentencing] guidelines [] and made
    [Appellant] immediately eligible for parole at the discretion of the
    Pennsylvania Board of Probation and Parole. It was more lenient
    and favorable to [Appellant] than any sentence the
    Commonwealth had previously offered.
    [Appellant] testified under oath [at the hearing on remand] that
    he accepted the sentencing agreement; he understood it would
    “resolve” his counseled PCRA claims; he had sufficient time to talk
    with his court-appointed lawyer; and he had no questions for her,
    the prosecuting attorney or [the trial court]. The new sentencing
    order was the exact form of relief sought in the counseled,
    amended PCRA petition, and terms of the new sentence were
    accepted by [Appellant] in court, under oath. While in court, he
    -3-
    J-S64026-18
    did not ask to withdraw his plea, nor did he express any
    dissatisfaction with his lawyer or the advice of his lawyer.
    Trial Court Opinion, 8/17/2017, at 7-8. This timely appeal resulted.2
    On appeal, Appellant presents the following issue for our review:
    Whether the judgment of sentence of February 2, 2017 must be
    vacated because the trial court did not conduct a full and complete
    on the record colloquy of Appellant pursuant to Pa.R.Crim.P. 590
    to determine that Appellant’s guilty plea was knowingly,
    intelligently, and voluntarily made and not the product of undue
    influence of an unconstitutional mandatory minimum sentencing
    scheme pursuant to Commonwealth v. Melendez-Negron, 
    123 A.3d 1087
    (Pa. Super. 2014)?
    Appellant’s Brief at 4.
    In sum, Appellant argues:
    In the matter sub judice, the plea negotiations that resulted in the
    June 2013 guilty plea were fatally flawed from the beginning. [The
    Superior Court] specifically remanded this matter to determine
    whether Appellant’s guilty plea was unlawfully induced due to an
    unconstitutional mandatory minimum sentencing scheme. As a
    result, the [trial] court was required to provide a full and complete
    colloquy in accordance with Pa.R.Crim.P. 590 to demonstrate that
    Appellant knowingly, intelligently, and voluntarily entered into the
    guilty plea and that it was not unlawfully induced. These issues
    were simply never addressed during the February 2, 2017
    ____________________________________________
    2  Appellant filed a pro se post-sentence motion requesting reconsideration of
    his sentence. Upon review of the record, Appellant was still represented by
    counsel and it does not appear that the trial court ruled upon Appellant’s pro
    se post-sentence motion. It should be noted that in the months following
    Appellant’s resentencing, Appellant submitted numerous pro se filings with the
    trial court and counsel for Appellant filed a petition to withdraw. The trial
    court granted counsel’s request to withdraw on May 18, 2017. On June 27,
    2017, Appellant filed a pro se notice of appeal nunc pro tunc. On July 14,
    2017, the trial court granted relief, appointed Edward M. Galang, Esquire to
    represent Appellant on appeal, and directed Attorney Galang to file a concise
    statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
    Counsel complied on August 14, 2017. The trial court issued an opinion
    pursuant to Pa.R.A.P. 1925(a) on August 17, 2017.
    -4-
    J-S64026-18
    proceeding. [The Superior Court] specifically remanded this
    matter so that a proper record could be developed related to the
    issues set forth in Commonwealth v. Melendez-Negron, 
    123 A.3d 1087
    (Pa. Super. 2015). The record developed during the
    February 2, 2017 sentencing hearing is deficient in this regard.
    As a result, Appellant maintains that the February 2, 2017 order
    must be vacated.
    Appellant’s Brief at 21.   As a result, Appellant claims that he is entitled to
    withdraw his guilty plea. 
    Id. at 13.
    On this issue, the trial court concluded:
    There are no purposes for holding a new colloquy other than giving
    [Appellant] an opportunity to either withdraw his plea or use the
    prospect of doing so as a way of negotiating an even-more lenient
    sentence from the Commonwealth.
    *            *          *
    [Appellant] negotiated a new sentence and testified in court under
    oath that entry of the new sentence would resolve his PCRA
    petition. The Commonwealth was in agreement with [Appellant].
    After the new sentence was imposed, neither the Commonwealth
    nor [Appellant], in his numerous pro se applications, asked for the
    guilty plea to be vacated. [Appellant] gave up his post-conviction
    claim that his guilty plea was not knowing, voluntary and
    intelligent at the PCRA hearing by accepting the new negotiated
    sentence below the mitigated range of the sentencing guidelines.
    Trial Court Opinion, 8/17/2017, at 14.
    We agree with the trial court’s assessment. In this case, Appellant’s
    current claim is outside the scope of our remand order. Our Supreme Court
    has previously decided:
    Following a full and final decision by a PCRA court on a PCRA
    petition, that court no longer has jurisdiction to make any
    determinations related to that petition unless, following appeal,
    the appellate court remands the case for further proceedings in
    the lower court. In such circumstances, the PCRA court may only
    -5-
    J-S64026-18
    act in accordance with the dictates of the remand order. The PCRA
    court does not have the authority or the discretion to permit a
    petitioner to raise new claims outside the scope of the remand
    order and to treat those new claims as an amendment to an
    adjudicated PCRA petition.
    Commonwealth v. Sepulveda, 
    144 A.3d 1270
    , 1280 (Pa. 2016) (footnotes
    omitted); see also Commonwealth v. Lawson, 
    789 A.2d 252
    , 253-254 (Pa.
    Super. 2001) (“where a case is remanded to resolve a limited issue, only
    matters related to the issue on remand may be appealed”).
    Here, a prior panel of this Court remanded this case to determine
    whether    a    mandatory   minimum    sentencing   scheme,   later   declared
    unconstitutional under Alleyne, influenced Appellant’s decision to plead
    guilty.   We presented Appellant with two choices on how to proceed upon
    remand. He could show: 1) “[p]roof of [] prejudice stemming from counsel’s
    failure to advise him properly [regarding Alleyne, which] would entitle
    Appellant to a new sentencing hearing” or, 2) that he “would have withdrawn
    his guilty plea altogether had counsel properly advised him of Alleyne and
    the effect it could have on his sentencing would entitle him to withdraw his
    guilty plea.”   
    Patterson, 143 A.3d at 399
    .   Thus, the recent remand was
    limited solely to an examination of the effect that mandatory minimum
    sentences had on Appellant’s decision to accept the sentence he negotiated
    with the Commonwealth or his election to      plead guilty.   However, once
    -6-
    J-S64026-18
    Appellant agreed to a newly negotiated sentence,3 one of the two options
    given on remand, he foreclosed his ability to withdraw his plea. If he decided
    to seek withdrawal of his guilty plea before the trial court, Appellant was
    entitled to do so. However, he needed to develop upon remand that his plea
    was invalid. Appellant, however, cannot now claim that he wants to withdraw
    his plea for the first time on appeal. Moreover, if Appellant believed that the
    guilty plea colloquy was “fatally flawed from the beginning,” he was required
    to raise that precise issue in his original PCRA petition, which he did not do.
    As such, Appellant has waived his current claim.
    Regardless, Appellant’s assertion is otherwise without merit.          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. Although no
    absolute right to withdraw a guilty plea exists in Pennsylvania, the
    standard applied differs depending on whether the defendant
    seeks to withdraw the plea before or after sentencing. When a
    defendant seeks to withdraw a plea after sentencing, he must
    demonstrate prejudice on the order of manifest injustice. A
    ____________________________________________
    3 We note that, “where a sentence of specific duration has been made part of
    a plea bargain, it would clearly make a sham of the negotiated plea process
    for courts to allow defendants to later challenge their sentence; this would, in
    effect, give defendants a second bite at the sentencing process.”
    Commonwealth v. Dalberto, 
    648 A.2d 16
    , 21 (Pa. Super. 1994). As the
    record reflects, Appellant agreed to a specific sentence on remand; the
    Commonwealth recited the agreement and both Appellant and his counsel
    confirmed the agreement. The court then performed a colloquy to ensure
    Appellant understood the proposed sentence.          N.T., 2/2/2017, at 3-6.
    Appellant stated that it was his intention to accept the agreement to amend
    his sentence and resolve the matter. 
    Id. at 4-5.
    It is meritless for Appellant
    to now claim he should be allowed to withdraw his plea.
    -7-
    J-S64026-18
    defendant may withdraw his guilty plea after sentencing only
    where necessary to correct manifest injustice.
    *            *            *
    Manifest injustice occurs when the plea is not tendered knowingly,
    intelligently, voluntarily, and understandingly. In determining
    whether a plea is valid, the court must examine the totality of
    circumstances surrounding the plea. Pennsylvania law presumes
    a defendant who entered a guilty plea was aware of what he was
    doing, and the defendant bears the burden of proving otherwise.
    Inter alia, the law imposes a stricter standard for post-sentence
    withdrawal motions in order to balance the tension between the
    individual's fundamental right to a trial and the need for finality in
    the proceedings.
    Additionally, a defendant is bound by the statements which he
    makes during his plea colloquy. Therefore, a defendant may not
    assert grounds for withdrawing the plea that contradict
    statements made when he pled guilty, and he may not recant the
    representations he made in court when he entered his guilty plea.
    Moreover, the law does not require that a defendant be pleased
    with the outcome of his decision to plead guilty. The law requires
    only that a defendant's decision to plead guilty be made
    knowingly, voluntarily, and intelligently.
    *            *            *
    This Court has established six topics that must be covered by a
    valid plea colloquy: 1) the nature of the charges, 2) the factual
    basis for the plea, 3) the right to a jury trial, 4) the presumption
    of innocence, 5) the sentencing ranges, and 6) the plea court's
    power to deviate from any recommended sentence.
    Commonwealth v. Jabbie, 
    2018 WL 6332328
    , at *4–5 (Pa. Super.
    December 5, 2018).
    As previously mentioned, Appellant’s original guilty plea hearing was
    bifurcated. The trial court accepted Appellant’s guilty plea in June of 2013.
    However, because there was no negotiated sentencing agreement, and the
    -8-
    J-S64026-18
    sentence was open for the court to decide, the trial court held sentencing later.
    Thereafter, in the prior appeal from the denial of PCRA relief, this Court
    determined that Appellant presented a colorable claim that his guilty plea was
    potentially influenced by the implication of an unconstitutional mandatory
    minimum sentence. In essence, our prior decision only addressed whether
    Appellant’s guilty plea was defective with regard to the permissible sentencing
    ranges Appellant potentially faced and the court’s power to deviate from any
    recommended sentence, the fifth and sixth inquiries as set forth above.
    Importantly, however, we did not vacate Appellant’s judgment of sentence.
    Thus, we may look at the prior plea proceedings in examining the totality of
    the circumstances surrounding the plea. At the original guilty plea hearing,
    Appellant acknowledged that he understood the nature of the charges, the
    factual basis for the plea, his right to a jury trial, and his presumption of
    innocence. See N.T., 6/10/2013, at 5-14. Those statements bind Appellant.
    Furthermore, at no time has Appellant presented the trial court with a
    challenge that its colloquy was defective with regard to these four required
    inquiries. There was simply no reason for the trial court to colloquy Appellant
    again on areas that were already covered, accepted, and remained
    unchallenged.      Apart from the mandatory minimum sentencing issue,
    Appellant   does    not   identify   anything   he   had   questions   about   or
    misunderstood, he simply claims he was entitled to a new plea colloquy.
    However, the only issue for resolution by the court on remand was
    resentencing.      Finally, it is clear that before Appellant accepted his new
    -9-
    J-S64026-18
    sentence, he was fully informed and knew that the Commonwealth could not
    seek a mandatory minimum sentence. Therefore, at the time he agreed to
    enter his newly negotiated sentence, Appellant already received a plea
    colloquy (with many parts unchallenged) and litigated an Alleyne claim.
    Hence, based upon a totality of the circumstances, Appellant has not identified
    grounds for finding his plea was unknowing, unintelligent, or involuntary in
    order to establish a manifest injustice permitting him to withdraw his guilty
    plea. Accordingly, Appellant’s current appellate challenge to the plea colloquy
    is waived, but otherwise without merit.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/12/19
    - 10 -
    

Document Info

Docket Number: 2266 EDA 2017

Filed Date: 2/12/2019

Precedential Status: Precedential

Modified Date: 2/12/2019