Com. v. Belcher, K. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KEVIN BELCHER
Appellant No. 320 EDA 2016
Appeal from the Judgment of Sentence June 9, 2015
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000373-2015
BEFORE: PANELLA, J., LAZARUS, J., and FITZGERALD, J.*
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 30, 2016
Kevin Belcher appeals from the judgment of sentence, entered in the
Court of Common Pleas of Monroe County, following his conviction of two
counts of retail theft.1 18 Pa.C.S.A. § 3929(a). After review, we affirm.
Belcher entered a plea of guilty to two counts of retail theft, both of
which were graded as misdemeanors of the first degree. 18 Pa.C.S.A. §
3929(a).2 The court sentenced Belcher to consecutive terms of
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. § 3929(a).
2
Section 3929(b)(1) provides:
(1) Retail theft constitutes a:
(Footnote Continued Next Page)
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imprisonment of twelve (12) to thirty (30) months on each count. Belcher
filed a motion for reconsideration of sentence, which was denied. On appeal,
Belcher raises the following issues:
1. Did the trial court err and abuse its discretion by accepting
[Belcher’s]guilty plea . . . and sentencing him to consecutive
sentences thereon where such plea was entered on the promise
of the sentences for his two pleas running concurrently?
2. Did the trial court err and abuse its discretion by
sentencing [Belcher] to consecutive sentences partially based on
an incident which was exaggerated and never demonstrated to,
in fact, have happened?
Appellant’s Brief, at 6.
In order to permit withdrawal of a guilty plea after sentence has
been entered, there must be a showing of prejudice that results
in a manifest injustice to the defendant. To prove manifest
injustice, a criminal defendant must show that his plea was
involuntary or was entered without knowledge of the charge.
However, once a defendant has entered a plea of guilty, it is
presumed that he was aware of what he was doing, and the
burden of proving involuntariness is upon him. Post-sentencing
attempts to withdraw a guilty plea must sustain this more
substantial burden of demonstrating manifest injustice because
of the recognition that a plea withdrawal can be used as a
sentence-testing device. It is axiomatic that a disappointed
expectation regarding a sentence does not constitute grounds for
withdrawing a guilty plea. If a plea of guilty could be retracted
with ease after sentencing, the accused might be encouraged to
plead guilty to test the weight of potential punishment, and
withdraw the plea if the sentence were unexpectedly severe.
_______________________
(Footnote Continued)
(iii) Misdemeanor of the first degree when the offense is a
first or second offense and the value of the merchandise is
$150 or more.
18 Pa.C.S.A. § 3929(b)(1)(ii).
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Commonwealth v. McClendon, 589 A.2d 706, 707 (Pa. Super. 1991)
(citations and quotations omitted).
Here, Belcher signed a Guilty Plea and Colloquy form, which states:
Commonwealth agrees to nolle pros charges at 356 CR 2015-
Defendant will pay restitution in the amount owed to Walmart in
356 CR 2015; Commonwealth agrees to nolle pros 372 CR 2015-
However as a condition defendant agrees to pay restitution;
Commonwealth agrees to concurrent sentencing in this
matter if court is so inclined; Commonwealth and defendant
stipulate that plea to both counts have OGS of “2” 1st/2 nd
offense – Defendant will pay restitution in all three cases to be
assessed by probation at time of sentencing. All restitution to
Walmart.
Guilty Plea and Colloquy, 4/9/15, at ¶ 4 (emphasis added). Additionally,
paragraph 8 of the Guilty Plea and Colloquy form provides:
NO SENTENCING AGREEMENT. I acknowledge that there are no
agreements for sentencing except as may be set forth in
paragraph 4 above. I understand that any agreement for
sentencing is not binding on the Court and I have not
been guaranteed a specific sentence in exchange for this
plea. The Court retains the power to decide my sentence.
Id. at ¶ 8 (emphasis added).
Belcher signed the Guilty Plea and Colloquy Form, affirming that he
had read it in its entirety and understood it; Belcher’s attorney also signed
the form, indicating that he had explained the agreement to Belcher. See
id., at ¶ 14. The sentencing court was aware of the plea and colloquy form
and was informed by a presentence investigation (PSI). The PSI indicated
Belcher had a criminal history spanning 30 years, which included 14
convictions. Additionally, the court was aware of an incident in county jail
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while Belcher was awaiting sentencing that resulted in a punishment of 28
days in restrictive housing.
Pursuant to the express terms of the agreement, the Commonwealth
was not required to affirmatively request or recommend that concurrent
sentences be imposed. The colloquy form provided in clear terms that the
court was not bound by any agreement and that no specific sentence was
guaranteed. The colloquy form specifically stated that the Commonwealth
was not opposed to concurrent sentences if the judge were so inclined. Id.
at ¶ 4. Where the terms of a plea agreement state specifically that the court
is not to be bound by the Commonwealth's sentencing recommendation, the
defendant acquires no right to have his plea withdrawn if a more severe
sentence is imposed. McClendon, supra.In order to establish manifest injustice, Belcher must demonstrate that
the plea was not voluntary or that it was entered without knowledge of the
charge. Commonwealth v. Shaffer, 446 A.2d 591 (Pa. 1982). Belcher
has made no such showing; in fact he has never contended that his plea was
involuntary or made without knowledge of the charges. Instead, he has
claimed that the court was bound to sentence him concurrently under the
terms of the plea agreement. This argument is belied by the express terms
of the written guilty plea colloquy form. We cannot ignore the colloquy form
in this case as to do so would render the document superfluous and
meaningless. Williams got nothing less than what he bargained for. Cf.
Commonwealth v. Gunter, 771 A.2d 767 (Pa. 2001) (nolo contendere plea
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was involuntary, and thus, denial of defendant’s post-sentencing motion to
withdraw plea was manifest injustice; there was no oral colloquy and written
colloquy did not explain to defendant effect of nolo contendere plea).
We conclude, therefore, that Belcher has made no showing of manifest
injustice. McClendon, supra.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2016
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