Com. v. Cannon, R. ( 2017 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. :
:
RICK LAVAR CANNON, :
:
Appellant : No. 1680 MDA 2015
Appeal from the Judgment of Sentence August 26, 2015
in the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0000559-2014
BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 05, 2017
Rick Lavar Cannon (Appellant) appeals from the August 26, 2015
judgment of sentence of 50 to 100 years of imprisonment following his guilty
pleas to numerous offenses. We affirm.
On March 14, 2014, Appellant and two co-conspirators robbed and
shot two victims,1 fled from police, and, after a high-speed chase, were
apprehended in unlawful possession of cocaine and firearms. Appellant was
charged with numerous crimes, including homicide. On July 2, 2015,
Appellant entered into the following negotiated guilty plea: “The plea deal is
for 50 to 100 years and he must cooperate as necessary with the District
1
One of the victims, Marcus Antonio Ortiz, died as a result of his wounds;
the other, Keith Crawford, survived.
*Retired Senior Judge assigned to the Superior Court.
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Attorney’s Office regarding the two codefendants….”2 N.T., 7/2/2015, at 3.
Furthermore, Appellant agreed that the plea was irrevocable. Id. at 12.
When Appellant appeared for sentencing on August 26, 2015,
Appellant made an oral motion to withdraw his plea. The trial court denied
the motion and sentenced Appellant pursuant to the terms of the plea
agreement. N.T., 8/26/2015, at 5. Appellant timely filed a notice of appeal.
In this Court, Elizabeth Judd, Esquire, counsel for Appellant, filed a
petition to withdraw as counsel. Noting the absence from the record of the
transcript of the oral plea colloquy, we denied Attorney Judd’s petition and
remanded the case for the completion of the record and the filing of a new
brief. Memorandum, 5/24/2016. In August 2015, Appellant pro se filed
with this Court an application for the appointment of new counsel. We
denied Appellant’s request, but instructed Attorney Judd to comply with our
previous directive. However, the trial court subsequently allowed Attorney
Judd to withdraw as counsel and appointed Timothy T. Engler, Esquire, to
represent Appellant in this appeal.
With a now-complete record and briefs from both parties, the appeal is
ripe for our decision. Appellant presents one question for our review:
“Should Appellant have been allowed to withdraw his plea prior to
sentencing?” Appellant’s Brief at 3 (unnecessary capitalization omitted).
2
In its opinion, the trial court indicated that Appellant’s coconspirators were
convicted of 1st and 2nd degree murder in October 2015. It does not
mention whether Appellant was called to testify in that trial.
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Preliminarily, we recognize that at any time before the
imposition of sentence, the court may, in its discretion, permit,
upon motion of the defendant, or direct sua sponte, the
withdrawal of a plea of guilty or nolo contendere and the
substitution of a plea of not guilty. The Supreme Court of
Pennsylvania recently clarified the standard of review for
considering a trial court’s decision regarding a defendant’s pre-
sentence motion to withdraw a guilty plea:
[T]rial courts have discretion in determining whether
a withdrawal request will be granted; such discretion
is to be administered liberally in favor of the
accused; and any demonstration by a defendant of a
fair-and-just reason will suffice to support a grant,
unless withdrawal would work substantial prejudice
to the Commonwealth.
We will disturb a trial court’s decision on a request to withdraw a
guilty plea only if we conclude that the trial court abused its
discretion.
Commonwealth v. Blango, 150 A.3d 45, 47 (Pa. Super. 2016) (citations
and quotation marks omitted).3
During the plea colloquy in the instant case, Appellant acknowledged
his part in the murder conspiracy and accepted a sentence of less than life
imprisonment in exchange for his promise to testify against his co-
conspirators in October. N.T., 7/2/2015, at 10, 13-14. When Appellant
appeared for sentencing in August, Attorney Judd informed the trial court
3
This Court previously had held that the more stringent standard of
manifest injustice applicable for withdrawal of a plea after sentencing applied
any time a defendant sought to withdraw a plea bargain which included the
terms of the sentence. Commonwealth v. Prendes, 97 A.3d 337, 352
(Pa. Super. 2014) (relying upon Commonwealth v. Lesko, 467 A.2d 307,
310 (Pa. 1983)). However, our Supreme Court has since disapproved of
“Lesko’s idiosyncratic approach to presentence withdrawal.”
Commonwealth v. Hvizda, 116 A.3d 1103, 1106 (Pa. 2015).
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that Appellant wished to withdraw his guilty plea because he felt that
Attorney Judd “had coerced him in to pleading guilty and that was not really
the decision he wanted to make, but he was influenced by the things that
[Attorney Judd] had said to him.” N.T., 8/26/15, at 2. The trial court asked
Appellant if there was anything he wished to say on the matter, to which he
replied, “I mean, basically what she just said.” Id. at 3. The trial court then
offered the following explanation for its decision to deny Appellant’s motion.
I went through an extensive plea colloquy, much more
than would be required by any rules. I asked all the elements of
the offenses. I emphasized it was irrevocable. It couldn’t be
withdrawn for any reason even though there was a negotiated
time amount, minimum of 50 years, maximum 100 years. He
knew all of that, but also knew without equivocation that he
couldn’t withdraw it later. …
Now the allegation is that Attorney Judd bullied him or did
something. I reject that summarily for this reason. [Appellant]
could have raised any of that at that time. I remember giving
[him] multiple opportunities to tell me anything else. Any
problem, any hesitation I would have paused, and I didn’t.
N.T., 8/26/2015, at 5. In its Rule 1925(a) opinion, the trial court further
emphasized that Appellant’s claims of coercion “completely contradict
statements he made when he pled,” and that Appellant “did not assert his
innocence nor did he offer any other fair or just reason to withdraw the
guilty plea.” Trial Court Opinion, 10/28/2015, at 7.
We conclude that the trial court did not abuse its discretion in denying
Appellant’s motion. Although it is true that an “individual’s fundamental
right to a trial requires a liberal granting of pre-sentence motions to
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withdraw guilty plea,” it is also true that “there is no absolute right to a pre-
sentence withdrawal of a plea, and … that the denial of such a motion is
proper where the evidence before the court belies the reason offered.”
Commonwealth v. Tennison, 969 A.2d 572, 578 (Pa. Super. 2009).
Our review of the record shows that Appellant repeatedly
acknowledged that the agreement included the term that he could not
revoke his plea for any reason. N.T., 7/2/2015, at 4-5, 11-12. Moreover,
the transcript confirms that, before Appellant entered his plea, he stated
under oath that he was satisfied with Attorney Judd and her representation,
and answered in the negative when the court asked him if he had any
questions. Id. at 13. Appellant then indicated that he wished to plead
guilty, and the trial court found that Appellant’s decision was “freely,
voluntarily, and intelligently made, and that [he] had the advice of a
competent attorney with whom [he was] satisfied.” Id. at 14.
Under these circumstances, the trial court acted within its discretion in
rejecting Appellant’s implausible claim of coercion and denying his motion to
withdraw the guilty plea. See, e.g., Commonwealth v. Carrasquillo, 115
A.3d 1284, 1293 (Pa. 2015) (holding trial court acted within its discretion to
deny an implausible claim of innocence raised for the first time at the
sentencing hearing).
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/5/2017
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