Opinion
J-S62041-16 No. 352 MDA 2016
10-06-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. DEVON SMITH Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence October 15, 2015
In the Court of Common Pleas of Northumberland County
Criminal Division at No(s): CP-49-CR-0001279-2014 BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Devon Smith, appeals from the judgment of sentence entered in the Northumberland Court of Common Pleas, following his open guilty plea to aggravated assault and aggravated harassment by prisoner. We affirm.
18 Pa.C.S.A. § 2702(a)(3) and 18 Pa.C.S.A. § 2703.1, respectively.
We draw the relevant facts and procedural history of this case from the certified record as follows. On or about July 15, 2014, Appellant kicked a uniformed maintenance worker, while in the performance of his duty, in the lower leg and knowingly spat on a corrections officer. As a result of this incident, the Commonwealth charged Appellant with one count of aggravated assault and one count of aggravated harassment by prisoner. Appellant was already serving an aggregate sentence of one (1) year and six (6) months to seventeen (17) years of incarceration on unrelated offenses, with a minimum sentence that expired on September 19, 2011, and a maximum sentence that is set to expire on December 21, 2021. Appellant entered into an open plea agreement with the Commonwealth; the Commonwealth agreed to recommend the two new sentences to run concurrently to each other, and in the standard range, with the remaining terms of the sentence left to the court's discretion.
On October 15, 2015, Appellant pled guilty to both new charges, after the court conducted a colloquy on the record. The court sentenced Appellant on the same day to two (2) to four (4) years' imprisonment on each charge to run concurrently with each other, but consecutive to the sentence he was already serving on his unrelated crimes. Appellant timely filed a post-sentence motion on October 16, 2015, alleging he believed the new sentences would run concurrently with the unrelated state sentence he was also serving, and asked to withdraw his guilty plea as unintelligent or unknowing. On February 18, 2016, the court denied Appellant's post-sentence motion by operation of law. Appellant timely filed a notice of appeal on February 26, 2016. On March 1, 2016, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), which Appellant timely filed.
Appellant raises the following issue for our review:
WHETHER THE COURT ERRED IN DENYING [APPELLANT'S] MOTION TO WITHDRAW HIS PLEA ON THE BASIS THAT IT WAS NOT INTELLIGENTLY OR KNOWINGLY ENTERED WHEN IT WAS HIS UNDERSTANDING THAT HIS SENTENCES WOULD BE CONCURRENT TO THE CURRENT STATE SENTENCE HE WAS SERVING.(Appellant's Brief at 6).
Appellant argues he entered into this plea agreement with a different understanding as to his sentence, which establishes a manifest injustice allowing him to withdraw his guilty plea. Through communications with his counsel, Appellant believed he would serve his new sentences concurrently with the state sentence he was already serving. Appellant reasons his plea was flawed because the court sentenced him to serve his new sentences consecutively to the one he was already serving, which cause his plea to be unknowing or unintelligent. Appellant concludes we must vacate his sentences and allow him to withdraw his guilty plea. We disagree.
A valid guilty plea must be knowingly, voluntarily and intelligently entered. Commonwealth v. Pollard , 832 A.2d 517 (Pa.Super. 2003). The Pennsylvania Rules of Criminal Procedure mandate that 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 (Pa.Super. 2002). Specifically, the court must affirmatively demonstrate a defendant understands: (1) the nature of the charges to which he is pleading guilty; (2) the factual basis for the plea; (3) his right to trial by jury; (4) the presumption of innocence; (5) the permissible ranges of sentences and fines possible; and (6) that the judge is not bound by the terms of the agreement unless he accepts the agreement. Commonwealth v. Watson , 835 A.2d 786 (Pa.Super. 2003). This Court 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 bears the burden of proving otherwise. Pollard , supra. A defendant who decides to plead guilty is bound by the statements he makes while under oath, "and he may not later assert grounds for withdrawing the plea which contradict the statements he made at his plea colloquy." Id. at 523.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Paige Rosini, we conclude Appellant's issue merits no relief. The trial court opinion comprehensively discusses and properly disposes of the question presented. ( See Trial Court Opinion, filed April 15, 2016, at 2-4) (finding: plea agreement provided Appellant's sentences on two new charges would run concurrently to each other; agreement made no mention of whether new sentences would run concurrently to any other sentences Appellant was already serving; even if Appellant contemplated possibility of all sentences running concurrently, that concept was not part of plea agreement; therefore, Appellant failed to show plea constituted manifest injustice). We agree. At Appellant's plea hearing, the court conducted an adequate plea colloquy and determined Appellant understood the nature of the charges to which he is pleading guilty; the factual basis for the plea; his right to trial by jury; the presumption of innocence; the permissible ranges of sentences and fines possible; and that the judge was not bound by the terms of the agreement unless she accepts it. Further, the Commonwealth stated on record the exact terms of the plea agreement, which included a recommendation that the sentences on both new counts would run concurrently to each other, be in the standard range, and the remaining terms of the sentence would be left to the discretion of the court. We see no reason to disturb the court's decision to deny Appellant the relief he requested. Accordingly, we affirm on the basis of the trial court opinion.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/6/2016
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