Com. v. Sutton, C. ( 2023 )

J-S45037-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CORY SUTTON :
:
Appellant : No. 2498 EDA 2021
Appeal from the Judgment of Sentence Entered August 18, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at CP-51-CR-0009145-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CORY SUTTON :
:
Appellant : No. 2499 EDA 2021
Appeal from the Judgment of Sentence Entered August 18, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at CP-51-CR-0001710-2020
BEFORE: OLSON, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 22, 2023
Cory Sutton (Appellant) appeals from the judgment of sentence imposed
after he entered a negotiated guilty plea to two counts of strangulation and
one count of retaliation against a victim.1
The Commonwealth summarized the following facts at the plea hearing:
____________________________________________
1 18 Pa.C.S.A. §§ 2718 and 4953.
J-S45037-22
[O]n November 22, 2019, at about ten o’clock p.m.[, Appellant]
came to the complainant’s home on the 1300 block of Gilham
Street. The complainant had asked [Appellant] to come over to
get his belongings. They were in a romantic relationship at the
time. [Appellant] came to the 1300 block of Gilham Street, ran
at the complainant, put his hands around her neck and impeded
her breathing.
After this incident … the complainant obtained a protection
from abuse order, which was numbered 1911B7864. A protection
from abuse hearing was scheduled at Philadelphia Family Court
for November 26, 2019. [Appellant] and the complainant were
both aware of that hearing.
[O]n November 26, 2019, at about nine o’clock in the
morning at 15th and Cherry Streets here in the city and county of
Philadelphia outside of Family Court the complainant parked her
vehicle and was approaching Family Court when she was
approached by [Appellant], who again put his hands around her
neck, impeded her breathing, and stated to her, so this is what
we’re doing.
N.T., 8/18/21, at 11.
The Commonwealth charged Appellant with strangulation as to the
November 22, 2019, incident (CP-51-CR-0009145-2019), and strangulation
and retaliation relating to November 26, 2019, incident (CP-51-CR-0001710-
2020). The trial court consolidated the cases on November 13, 2020. See
Order, 11/13/20 (stating cases were consolidated “by agreement and the [trial
c]ourt’s ruling”).
The trial court explained:
On August 18, 2021, [Appellant] appeared with Plea
Counsel before th[e trial c]ourt to enter into a negotiated guilty
plea. [Appellant] completed the written colloquy forms … and
engaged in a lengthy oral colloquy with the [trial c]ourt.
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***
The Commonwealth then put on the record the facts, establishing
the offenses underlying the guilty plea. NT 8/18/21 at 11-12.
After hearing the Commonwealth’s facts, the [trial c]ourt asked,
“Are those the facts [on] which you’re basing the guilty plea?” to
which [Appellant] responded, “Yes.” The [trial c]ourt then stated,
“I do find a factual basis for the guilty plea has been established.
I’m satisfied [Appellant’s] decision to plead guilty is knowing,
intelligent, and voluntary. I will accept this plea.” NT 8/18/21 at
12. [Appellant] then entered pleas of guilty to the three charges
contained in two separate dockets. NT 8/18/21 at 13.
[Appellant] waived a pre-sentence investigation report, and
the parties agreed to move forward to sentencing immediately.
Id. The Complainant appeared and gave a victim impact
statement[;] the statutory sentencing guidelines were placed on
the record[;] Defense counsel spoke on [Appellant’s] behalf[;]
and when informed of his right of allocution, [Appellant] waived
his opportunity to make any statement on his own behalf. NT
8/18/21 at 17-18. [The trial court sentenced Appellant to an
aggregate 5 – 10 years in prison.]
Eight (8) days later, on August 26, 2021, [Appellant],
through new counsel, filed a motion to withdraw his guilty plea,
alleging that his plea was not knowing, intelligent, and voluntary,
due to coercion when Plea Counsel informed [Appellant] that “she
would need to withdraw from the case if it went to trial, as prior
counsel was mentioned in a text message between the
complainant and [Appellant’s] brother, which was shown to prior
counsel by the assigned prosecutor, and the text was going to be
part of the evidence in the case.”
A hearing was held on [Appellant’s] motion on November
19, 2021, during which [Appellant] testified on the morning of his
guilty plea, Plea Counsel came to see him after having
conferenced with the Commonwealth, and explained that there
was evidence that implicated both [Appellant’s] mother and
brother in illegal third-party communications with Complainant, as
well as text messages that mentioned Plea Counsel, and therefore
created a conflict of interest, requiring counsel to withdraw from
the case. NT 11/19/21 at 6-8. [Appellant] said, “so that’s when
she said I should just take the deal. That’s the best deal that I
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could take.” NT 11/19/21 at 7-8. After hearing [Appellant’s]
testimony and Counsel’s argument, the [c]ourt ruled:
All right. I have reviewed the petition. As
counsel stated earlier, everything in his written
motion is adopted as oral argument. As counsel notes
in this, there needs to be a pretty extraordinary bar
to withdraw a guilty plea after the sentence, which is
[ ] manifest injustice.
Given the fact that he was colloquied on the
record, he was sworn, I asked him if he was doing this
knowingly, intelligently, and voluntarily, which is the
whole purpose of the plea. And the fact that there’s
no (inaudible) claim of innocence anywhere in this
motion, which is what’s normally looked at to have
something withdrawn before sentencing, I’m going to
deny counsel’s motion to withdraw the guilty plea.
The sentence is to stand.
N.T. 11/19/21 at 15-16.
On December 1, 2021, [Appellant] filed a timely notice of
appeal. Th[e trial c]ourt ordered [Appellant] to file a concise
statement of matters complained of on appeal pursuant to
Pa.R.A.P.1925(b) on December 3, 2021. On December 20, 2021,
Defendant filed a timely 1925(b) statement.
Trial Court Opinion, 1/26/22, at 1, 3-4 (citations to exhibits omitted). This
Court consolidated the appeals sua sponte on December 27, 2021.
Appellant presents the following question for review:
Did the lower court err and abuse its discretion in denying
[Appellant’s] post-sentence motion to withdraw his guilty plea,
where he proved that the plea was not knowing and intelligent?
Appellant’s Brief at 7.
Appellant argues the trial court erred in denying his motion to withdraw
his plea because “the evidence proved his plea was not knowing or intelligent.”
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Appellant’s Brief at 10. Appellant references his testimony and evidence of
recorded phone calls he made “merely hours after he pled and was
sentenced.” Id. at 12. According to Appellant, these recordings “corroborated
the testimony revealing that [his] plea was not knowing or intelligent.” Id.
Appellant claims the conversations he had with his counsel “show that plea
counsel erroneously advised [Appellant] to enter a plea because otherwise
[Appellant’s] mother and brother could be in legal jeopardy.” Id. at 13.
Appellant further claims “he pleaded guilty because he thought that he would
have to go to trial in one day with an attorney that did not know his cases.”
Id.
The Commonwealth argues the trial court “did not abuse its discretion
when it denied [Appellant’s] post-sentence motion to withdraw his guilty plea
because the thorough colloquy established [his] plea was knowing, intelligent,
and voluntary.” Commonwealth Brief at 7, 12. The Commonwealth notes
that the two phone recordings Appellant relies upon were “one between
[Appellant] and his fiancé and the other between [Appellant] and his mother
and brother.” Id. at 4. The Commonwealth asserts,
even if the trial court believed [Appellant’s] unsupported claims
that he plead[ed] guilty because his plea attorney told him his
brother and mother would get in trouble for illegally contacting
the victim and that she (his plea attorney) would not be able to
represent him at trial, those facts are of no consequence to the
validity of [A]ppellant’s plea. He was permitted to accept the plea
for any reason he chose. That he was motivated by his attorney’s
statements do[es] not make his plea unknowing, unintelligent, or
involuntary. See Commonwealth v. Yager, 685 A.2d 1000 (Pa.
Super. 1996) (holding appellant’s guilty plea valid when he did so
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in hope of a more lenient sentence); Commonwealth v.
Rodriguez, 2018 WL 831950 (Pa. Super. 2018) (holding
appellant entered his guilty plea voluntarily, intelligently, and
knowingly even though appellant claims he plead guilty in hopes
that he would be released before his terminally-ill mother died and
he was afraid of the how the stress of a trial would impact his
mother); Commonwealth v. Freedman, 2015 WL 6872607 (Pa.
Super. 2015) (holding Appellant’s testimony that he plead guilty
because he wanted to go home does not invalidate the plea).
Commonwealth Brief at 11-12.
“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. Kehr, 180 A.3d 754, 757 (Pa. Super. 2018)
(citation omitted). Because “discretionary power can only exist within the
framework of the law,” a trial court must exercise discretion “on the foundation
of reason, as opposed to prejudice, personal motivations, caprice or arbitrary
action.” Id. (citation omitted). A trial court abuses its discretion when its
decision “represents not merely an error of judgment, but where the judgment
is manifestly unreasonable or where the law is not applied or where the record
shows that the action is a result of partiality, prejudice, bias or ill
will.” Id. (citation omitted). Because we recognize the trial court, “[a]s the
fact-finder, [is] in the best position to assess the credibility of the witnesses’
testimony,” we “will not reverse a trial court’s credibility determination absent
the court’s abuse of discretion as fact finder.” Commonwealth v. Moser,
921 A.2d 526, 530 (Pa. Super. 2007).
Further, Pennsylvania law presumes a defendant who enters a guilty
plea “was aware of what he is doing.” Commonwealth v. Pollard, 832 A.2d
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517, 523 (Pa. Super. 2003). He bears the burden of proving otherwise. Id.To prevail on a post-sentence motion to withdraw a guilty plea, a “defendant
must demonstrate that manifest injustice would result if the court were to
deny [the] motion[.]” Kehr, 180 A.3d at 756-57 (citation omitted). Manifest
injustice exists where “the plea was not tendered knowingly, intelligently, and
voluntarily.” Id. at 757 (citation omitted).
Before accepting a plea, the trial court must conduct an on-the-record
inquiry to determine whether the defendant understands and voluntarily
accepts the terms of the plea agreement. Pa.R.Crim.P. 590(B)(2). In
determining a plea’s validity, the trial court is not bound to consider only the
defendant’s testimony at the colloquy; rather, it “must examine the totality of
circumstances surrounding the plea.” Kehr, 180 A.3d at 757 (citation
omitted). This “include[s], but [is] not limited to[,] transcripts from other
proceedings, off-the-record communications with counsel, and written plea
agreements.” Commonwealth v. Fears, 836 A.2d 52, 64 (Pa. 2003).
Mindful of the foregoing law, we discern no error or abuse of discretion
by the trial court. The trial court held a hearing in response to Appellant’s
post-sentence motion to withdraw his plea. Appellant testified that he had
not planned to enter a guilty plea. N.T., 11/19/21, at 6. Appellant stated he
decided to plead guilty because his counsel at the time told him, “if we go to
trial she would have to come off my case, and I won’t have her as a lawyer.”
Id. at 8. Appellant also claimed plea counsel told him “I should just take the
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deal,” and “that’s the best deal that I could take.” Id. Appellant averred he
“was forced to take the deal.” Id. at 9.
Appellant explained that after he entered his negotiated plea, he called
his fiancé and mother. Id. at 10. He introduced the calls into evidence. See
id. at 11-12. Appellant did not present any other witnesses. After hearing
the evidence, the trial court addressed Appellant’s counsel, stating:
I have an assertion from [Appellant, who when he entered
his plea], swore under oath when I asked him whether he was
being forced to, coerced in any way to plead guilty, he said no.
So … my familiarity is what [Appellant] told me under oath,
Counsel. I heard this conversation. Just saying his lawyer said
this.
Id. at 13.
The trial court also referenced the law, observing that
there needs to be a pretty extraordinary bar to withdraw a guilty
plea after the sentence, which is the manifest injustice. Given the
fact [Appellant] was colloquied on the record, he was sworn, I
asked him if he was doing this knowingly, intelligently, and
voluntarily, which is the whole purpose of the plea. And the fact
that there’s no (inaudible) claim of innocence anywhere in this
motion, which is what’s normally looked at to have something
withdrawn before sentencing, I’m going to deny counsel’s motion
to withdraw the guilty plea.
Id. at 15-16.
Our review reveals no manifest injustice. Kehr, 180 A.3d at 756-57(petitioner seeking post-sentence withdrawal of guilty plea must demonstrate
manifest injustice would result from the court’s denial). As trial court
reasoned:
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The [trial c]ourt’s colloquy covered each of the six (6) required
elements, at the end of which the [c]ourt concluded [Appellant’s]
plea was “knowing, intelligent, and voluntary.” N.T., 8/18/21 at
12. … Here, [Appellant] has neither alleged innocence, nor any
evidence of having been coerced to plead guilty; rather Plea
Counsel communicated all the facts available to her to best inform
her client of the Commonwealth’s evidence against him and
recommended to him that his best disposition was by way of [a]
negotiated guilty plea. N.T., 11/19/21, at 6-8. Moreover,
[Appellant] confirmed both orally and in writing that he
understood the terms of his plea agreement, was satisfied with
his attorney, and had no further questions before proceeding.
See Exhibit A [(written colloquy forms)]. Therefore, [Appellant’s]
issue on appeal is without merit.
Trial Court Opinion, 1/26/22, at 6-7.
Upon review, we discern no error or abuse of discretion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2023
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