Opinion
J-S24012-15 No. 2318 EDA 2014
07-08-2015
COMMONWEALTH OF PENNSYLVANIA Appellee v. DAESEAN BERNARD SMITH Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence April 21, 2014
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0004021-2013
BEFORE: GANTMAN, P.J., ALLEN, J., and MUSMANNO, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Daesean Bernard Smith, appeals from the judgment of sentence entered in the Bucks County Court of Common Pleas, following his open guilty plea to burglary, conspiracy to commit burglary, two counts of robbery, two counts of conspiracy to commit robbery, four counts of kidnapping for ransom, four counts of conspiracy to commit kidnapping for ransom, four counts of kidnapping to facilitate a felony, four counts of conspiracy to commit kidnapping to facilitate a felony, criminal attempt (theft), conspiracy to commit theft, criminal attempt (theft by extortion), conspiracy to commit theft by extortion, four counts of false imprisonment, four counts of conspiracy to commit false imprisonment, persons not to possess firearms, and possessing instruments of crime. We affirm Appellant's convictions but vacate and remand for resentencing.
18 Pa.C.S.A. §§ 3502(a)(1); 903 (3502(a)(1) related); 3701(a)(1)(ii) and (a)(1)(iii); 903 (3701(a)(1)(ii) and (a)(1)(iii) related); 2901(a)(1); 903 (2901(a)(1) related); 2901(a)(2); 903 (2901(a)(2) related); 901 (3921 related); 903 (3921 related); 901 (3923 related); 903 (3923 related); 2903; 903 (2903 related); 6105; 907, respectively.
In its opinion, the trial court set forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them.
The correct citations for the statutes for the offenses of kidnapping of a minor for ransom and kidnapping of a minor to facilitate a felony are 18 Pa.C.S.A. § 2901(a.1)(1) and 18 Pa.C.S.A. § 2901(a.1)(2), respectively. The Commonwealth initially charged Appellant with these crimes at six counts but requested the court to enter nolle prosequi as to these six counts (not seven counts, as stated in the court's opinion) prior to Appellant's guilty plea. Additionally, the Commonwealth did not charge Appellant with conspiracy to commit persons not to possess firearms or conspiracy to commit possessing instruments of crime, and Appellant did not plead guilty to those crimes.
Appellant raises two issues for our review:
WHETHER THE TRIAL COURT ERRED IN DENYING [APPELLANT] THE RIGHT TO WITHDRAW HIS GUILTY PLEA?(Appellant's Brief at 4).
WHETHER THE TRIAL COURT DENIED [APPELLANT] OF HIS RIGHT TO [A] FAIR TRIAL?
Appellant makes no separate argument as to his second issue on appeal. Instead, Appellant contends that the court's denial of his motion to withdraw his guilty plea also deprived Appellant of his right to a full and fair trial. Thus, we address Appellant's issues together.
"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." Pa.R.Crim.P 591(A). Although there is no absolute right to withdraw a guilty plea, properly received by the trial court, a pre-sentence request should be liberally allowed. Commonwealth v. Forbes , 450 Pa. 185, 190, 299 A.2d 268, 271 (1973). "If the trial court finds 'any fair and just reason', withdrawal of the plea before sentence should be freely permitted, unless the prosecution has been 'substantially prejudiced.'" Id. at 191, 299 A.2d at 271. Our Supreme court recently modified what had been increasingly interpreted as a bright-line rule regarding pre-sentence requests to withdraw a plea:
Presently, we are persuaded by the approach of other jurisdictions which require that a defendant's innocence claim must be at least plausible to demonstrate, in and of itself, a fair and just reason for presentence withdrawal of a plea. ... More broadly, the proper inquiry on consideration of such a withdrawal motion is whether the accused has made some colorable demonstration, under the circumstances, such that permitting withdrawal of the plea would promote fairness and justice. The policy of liberality remains extant but has its limits, consistent with the affordance of a degree of discretion to the common pleas courts.Commonwealth v. Carrasquillo , ___ A.3d ___, 2015 WL 3684430 at *8 (Pa. June 15, 2015) (holding there is no per se rule regarding pre-sentence requests to withdraw pleas; court should consider plausibility, sincerity, motivation, and timing of request; courts must also consider whether allowing withdrawal of plea will prejudice Commonwealth). Thus, the decision to allow or deny a pre-sentence motion to withdraw a guilty plea rests within the sound discretion of the trial court absent substantial prejudice to the Commonwealth. See generally id.
After a thorough review of the record, the briefs of the parties, the applicable law, and the reasoned opinion of the Honorable Albert J. Cepparulo, we conclude Appellant's issues merit no relief. The trial court opinion discusses and properly disposes of the questions presented. ( See Trial Court Opinion, filed September 5, 2014, at 10-15) (finding: Appellant's assertion of innocence was questionable; court believed Appellant engaged in contrived plot to withdraw guilty plea as direct result of learning that Commonwealth's key witness/victim (Ms. Gasden) had died and would be unavailable to testify at trial; record showed Appellant possessed ulterior motive for request to withdraw guilty plea; further, permitting Appellant to withdraw his plea would substantially prejudice Commonwealth; Ms. Gasden died after Appellant had entered guilty plea and Appellant was aware of this fact; Ms. Gasden was very cooperative with police throughout investigation, and Commonwealth had total confidence in her testimony; defense intended to challenge at trial credibility of other witness/victim, Ms. Jones, as actually having participated in hostage events (not victim of hostage events); Ms. Gasden is now unavailable to corroborate Ms. Jones' account of events; due to overwhelming prejudice to Commonwealth, denial of Appellant's motion to withdraw plea, made for first time at initially scheduled sentencing hearing, was proper under facts of case). Accordingly, we affirm the court's denial of Appellant's pre-sentence motion to withdraw his guilty plea on the basis of the trial court's opinion.
Appellant pled guilty on October 22, 2013. Ms. Gasden died on December 6, 2013. On December 17, 2013, the date originally scheduled for sentencing, Appellant made an oral motion to withdraw his guilty plea. Appellant admitted he learned of Ms. Gasden's death before moving to withdraw his plea.
Nevertheless, we are mindful of the United States Supreme Court's decision in Alleyne v. United States , ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), in which the Court expressly held that any fact increasing the mandatory minimum sentence for a crime is considered an element of the crime to be submitted to the fact-finder and found beyond a reasonable doubt. Id. Here, the court imposed a mandatory minimum ten (10) year sentence for Appellant's burglary conviction under 42 Pa.C.S.A. § 9714 (sentences for second and subsequent offenses), and a mandatory minimum five (5) year sentence for one of Appellant's first-degree robbery convictions under 42 Pa.C.S.A. § 9712 (sentences for offenses committed with firearms). Consequently, we elect to review the legality of Appellant's sentence sua sponte. See Commonwealth v . Edrington , 780 A.2d 721 (Pa.Super. 2001) (explaining challenge to application of mandatory minimum sentence is non-waiveable challenge to legality of sentence, which this Court can raise sua sponte, assuming jurisdiction is proper).
Section 9714 sets forth a mandatory minimum sentence of ten (10) years' imprisonment where a defendant has previously been convicted of a crime of violence. See 42 Pa.C.S.A. § 9714(a). Section 9714(d) of this statute states that its provisions shall not be an element of the crime and applicability of the statute shall be determined by the court at sentencing by a preponderance of the evidence. 42 Pa.C.S.A. § 9714(d). Section 9712 sets forth a mandatory minimum sentence of five (5) years' imprisonment where a defendant has been convicted of a crime of violence if the person visibly possessed a firearm or a replica of a firearm that placed the victim in reasonable fear of death or serious bodily injury during the commission of the offense. See 42 Pa.C.S.A. § 9712(a). Section 9712(b) of this statute states that its provisions shall not be an element of the crime and applicability of the statute shall be determined by the court at sentencing by a preponderance of the evidence. 42 Pa.C.S.A. § 9712(b).
In Commonwealth v. Newman , 99 A.3d 86 (Pa.Super. 2014) (en banc), this Court addressed the constitutionality of a mandatory minimum sentencing statute containing language similar to Section 9714(d) and Section 9712(b). Relying on Alleyne , Newman held that Section 9712.1 (sentences for certain drug offenses committed with firearms) can no longer pass constitutional muster as it "permits the trial court, as opposed to the jury, to increase a defendant's minimum sentence based upon a preponderance of the evidence that the defendant was dealing drugs and possessed a firearm, or that a firearm was in close proximity to the drugs." Newman , supra at 98. This Court further held that the subsections of Section 9712.1 are so "essentially and inseparably connected" that severance of the statute is not possible, rendering the entire statute unconstitutional. Id. at 102. Thus, this Court vacated Newman's sentence for possession of a controlled substance with the intent to deliver and remanded for resentencing without imposition of the mandatory minimum under Section 9712.1. See also Commonwealth v. Valentine , 101 A.3d 801 (Pa.Super. 2014) (extending logic of Alleyne and Newman to Sections 9712 and 9713 and holding those sections are likewise unconstitutional insofar as they permit automatic increase of defendant's sentence based on preponderance of evidence standard).
This Court also made clear that Alleyne is subject to limited retroactivity; in other words, Alleyne is applicable only to criminal cases still pending on direct review. Id. at 90. Because Newman's case was still pending on direct appeal, the holding in Alleyne applied.
The Alleyne Court carved out a narrow exception where a defendant's prior conviction is the "fact" triggering application of a mandatory minimum sentence. Alleyne , supra at ___ n.1, 133 S.Ct. at 2160 n.1, 186 L.Ed.2d at ___ n.1. See also Commonwealth v. Reid , ___ A.3d ___, 2015 PA Super 135 (filed June 9, 2015) (explaining Alleyne did not overturn prior precedent that prior convictions are sentencing factors and not elements of offenses; because Section 9714 provides mandatory minimum sentences based on prior convictions, that statute is not unconstitutional under Alleyne; court's imposition of mandatory minimum sentence under Section 9714 was lawful); Commonwealth v. Miller , 102 A.3d 988, 995 n.5 (Pa.Super. 2014) (explaining fact of prior conviction does not need to be submitted to fact-finder and found beyond reasonable doubt; Alleyne does not prohibit mandatory minimum sentence based on fact of prior conviction).
In this case, the court imposed a ten (10) year mandatory minimum sentence for Appellant's burglary conviction under 42 Pa.C.S.A. § 9714 (sentences for second and subsequent offenses), and a five (5) year mandatory minimum sentence for one of Appellant's first-degree robbery convictions under 42 Pa.C.S.A. § 9712 (sentences for offenses committed with firearms). With respect to Appellant's mandatory minimum sentence for his burglary conviction, the record shows Appellant had a prior conviction for first-degree robbery in October 2009, for which Appellant received a sentence of three and one-half (3½) to seven (7) years' imprisonment, plus four (4) years' probation. Because the court imposed the ten (10) year mandatory minimum sentence based on Appellant's prior conviction of a crime of violence, the court's imposition of the mandatory minimum sentence under 42 Pa.C.S.A. § 9714 was lawful. See Alleyne , supra ; Reid , supra ; Miller , supra. See also 42 Pa.C.S.A. § 9714(g) (defining first-degree robbery as "crime of violence" for purposes of statute).
Regarding the mandatory minimum sentence related to Appellant's robbery conviction, the record makes clear Appellant possessed a gun throughout the events at issue. Specifically, Appellant and one of his cohorts held the victims hostage at gunpoint for approximately nine hours during the evening of April 21, 2013 into the morning of April 22, 2013; on the morning of April 22, 2013, Appellant and his cohorts forced one of the victims to attempt to withdraw approximately $80,000.00 from a PNC Bank. Notwithstanding Appellant's guilty plea to these events, based on this Court's decision in Newman and its progeny that Section 9712 is unconstitutional in its entirety, the trial court's imposition of the mandatory minimum sentence under that statute was unlawful. See Newman , supra ; Valentine , supra. Accordingly, we affirm Appellant's convictions, but we vacate the judgment of sentence and remand for resentencing without imposition of the mandatory minimum sentence under 42 Pa.C.S.A. § 9712.
The court imposed the mandatory minimum sentence for Appellant's robbery conviction at Count 3. See 18 Pa.C.S.A. § 3701(a)(1)(ii) (explaining person is guilty of robbery if, in course of committing theft, he threatens another with or intentionally puts him in fear of immediate serious bodily injury). This first-degree robbery conviction constitutes a "crime of violence" for purposes of Section 9712. See 42 Pa.C.S.A. § 9712(a) (referring to Section 9714(g) for definition of crimes which constitute crimes of violence). See also 42 Pa.C.S.A. § 9714(g).
Judgment of sentence vacated; case remanded for resentencing. Jurisdiction is relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2015
Image materials not available for display.