J-S37021-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ANTONIO CARTER,

Appellant No. 1787 EDA 2014

Appeal from the Judgment of Sentence May 13, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0008902-2013

BEFORE: GANTMAN, P.J., SHOGAN, and LAZARUS, JJ.

MEMORANDUM BY SHOGAN, J.: FILED AUGUST 07, 2015

Appellant, Antonio Carter, appeals from the judgment of sentence 

entered on May 13, 2014, in the Philadelphia County Court of Common 

Pleas. We affirm.

In an opinion filed on October 16, 2014, the trial court set forth the 

relevant facts and procedural history of this matter as follows:

On June 21, 2013, Appellant was charged with rape, 

indecent assault, and other related charges. On May 13, 2014, 

prior to proceeding to trial, Appellant indicated his desire to 

enter a nolo contendere plea. Appellant, represented by 

Zachary Shaffer, Esquire, entered into a negotiated nolo 

contendere plea to indecent assault, a felony in the third degree. 

Appellant negotiated with the Commonwealth for a 

recommendation of sentence consisting of time served to 23 

months with immediate parole followed by five years reporting 

probation, tier III Megan’s law lifetime reporting, sex offender 

supervision, and no unsupervised contact with minors for the 

third-degree felony indecent assault plea. The Commonwealth 

entered a nolle prosequi on the other related charges.
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[The trial court] conducted a thorough colloquy of 

Appellant (N.T. 5/13/14, 4-8). During the colloquy, Appellant 

was specifically informed of the crime and facts to which he was 

pleading nolo contendere; he acknowledged that he understood 

them (N.T. 5/13/14, 5-8). In addition, Appellant in writing, again 

confirmed his nolo contendere plea (Written Nolo Contendere 

Colloquy, Appendix A). This Court then performed an oral 

colloquy, during which the Appellant responded affirmatively to 

all questions regarding whether or not he was knowingly, 

intelligently and voluntarily entering the plea (N.T. 5/13/14, 7-

8). This Court accepted Appellant’s nolo contendere plea. 

Defense counsel then agreed to immediate sentencing. (N.T. 

5/13/14, 9). Appellant did not file a motion to withdraw his plea 

prior to sentencing, or indicate any desire to do so. This Court 

then sentenced the Appellant to the negotiated sentence of time 

served to 23 months with immediate parole plus five years of 

sex offender probation, and tier III Megan’s Law lifetime 

reporting. (N.T. 5/13/14, 10-11).

On May 13, 2014, after sentencing, Appellant filed a Post 

Sentence Motion, namely a Petition to Withdraw Nolo 

Contendere Plea. In his Petition, Appellant claimed he is 

asserting his innocence. (Petition to Withdraw Nolo Contendere 

Plea, Appendix B). This Court denied the petition to withdraw the 

plea without a hearing in an Order dated June 6, 2014. (Order, 

6/6/14, Appendix C). On June 13, 2014, this Court received a 

Notice of Appeal to the Superior Court. On June 25, 2014, this 

Court issued an order pursuant to Pa.R.A.P. Rule 1925(b) 

requiring the Appellant to file a concise statement of matters 

complained of on appeal within 21 days. On July 9, 2014, 

Appellant filed his 1925(b) statement. 

Trial Court Opinion, 10/16/14, at 1-2 (unnumbered pages).

On appeal, Appellant claims that the trial court erred in denying his 

petition to withdraw his guilty plea. Appellant’s Brief at 4. Specifically, 

Appellant argues as follows:

[Appellant] attempted to withdraw his guilty plea, via a 

post sentencing motion. [sic] just hours after his plea was 

entered and he was sentenced. [Appellant] plead nolo 

contendere as part [of] a negotiated plea. [Appellant] 
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continuously asserted his innocence, knew precisely what 

sentence he would be receiving as part of a negotiated plea, and 

attempted to withdraw his plea hours after he plead. None of the 

traditional concerns of post-sentence withdrawals exist, because 

[Appellant] was not sentence-testing, nor did he ever admit 

guilt. Given that those concerns are not present[,] [Appellant’s] 

motion to withdraw should be analyzed under the pre-sentence 

standard.

Id. at 7.

Our standard of review is well settled:

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); 

Commonwealth v. Santos, 450 Pa. 492, 494, 301 A.2d 829, 

830 (1973). Although there is no absolute right to withdraw a 

guilty plea, properly received by the trial court, it is clear that a 

request made [b]efore sentencing ... should be liberally allowed. 

Commonwealth v. Forbes, 450 Pa. 185, 190, 299 A.2d 268, 

271 (1973). Thus, in determining whether to grant a presentence motion for withdrawal of a guilty plea, the test to be 

applied by the trial courts is fairness and justice. Id. at 191, 

299 A.2d at 271. 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. 

Commonwealth v. Prendes, 97 A.3d 337, 351-352 (Pa. Super. 2014) 

(internal quotation marks omitted), appeal denied, 105 A.3d 736 (Pa. 2014).

In contrast, after the court has imposed a sentence, a defendant 

can withdraw his guilty plea only where necessary to correct a 

manifest injustice. Commonwealth v. Starr, 450 Pa. 485, 

490, 301 A.2d 592, 595 (1973). Post-sentence motions for 

withdrawal are subject to higher scrutiny since courts strive to 

discourage the entry of guilty pleas as sentencing-testing 

devices. Commonwealth v. Kelly, 5 A.3d 370, 377 

(Pa.Super.2010), appeal denied, 613 Pa. 643, 32 A.3d 1276 

(2011). If the appellant knows the only possible sentence he 

can get for the crime to which he pled guilty, then any pre-
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sentence motion to withdraw the plea is akin to a post-sentence 

motion to withdraw the plea, and the manifest injustice standard 

will apply to the pre-sentence motion. Commonwealth v. 

Lesko, 502 Pa. 511, 517, 467 A.2d 307, 310 (1983).

Prendes, 97 A.3d 337 at 352 (internal quotation marks omitted and 

emphasis added).

Here, Appellant alleges that the trial court erred in applying the postsentence standard and, instead, should have applied the more relaxed presentence standard. Appellant endeavors to support this argument by 

highlighting that he plead nolo contendere to indecent assault as part of his 

negotiated plea agreement. Appellant’s Brief at 10. Appellant subsequently 

“rethought his decision to [enter a] plea, asserted his innocence, and filed 

post sentence motions with the trial court asking to withdraw his plea[.]” 

Id. As noted above, Appellant claims “there is no issue with with [sic] 

Appellant attempting to use his plea as a ‘sentence-testing 

device.’ . . . Appellant was well aware of his sentence as it had been 

previously explained to him by council [sic], was clearly detailed on his 

written guilty plea colloquy, and was discussed on the record by the trial 

court.” Id. at 10-11 (emphasis added, citations omitted). Appellant’s 

argument is inapposite. 

It is undisputed that Appellant’s plea agreement included a negotiated 

sentence of which he was fully aware. Appellant’s Brief at 10. “Because 

Appellant was fully aware of the sentence he would receive, the ‘manifest 

injustice’ standard applied.” Prendes, 97 A.3d at 354. Accordingly, 
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because the trial court applied the correct standard, we discern no error or 

abuse of discretion in the trial court’s order denying Appellant’s motion to 

withdraw his guilty plea. Therefore, we affirm appellant’s judgment of 

sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/7/2015