J-S36009-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

DERRICK COBBS

Appellant No. 1399 WDA 2021

Appeal from the Judgment of Sentence Entered October 28, 2021

In the Court of Common Pleas of Westmoreland County

Criminal Division at No: CP-65-CR-0002069-2010

BEFORE: STABILE, J., KING, J., and COLINS, J.*

MEMORANDUM BY STABILE, J.: FILED: March 28, 2023

Appellant, Derrick Cobbs, appeals from the October 28, 2021 judgment 

of sentence imposing an aggregate five to ten years of incarceration for rape, 

involuntary deviate sexual intercourse (“IDSI”), sexual assault, and 

aggravated assault.

1

 We affirm. 

The Commonwealth commenced this action by criminal complaint on 

May 7, 2010. A jury trial commenced on November 2, 2010 and ended in a 

mistrial the next day. The subsequent procedural history is lengthy, complex, 

and rife with irregularities. During the three years following the mistrial, the 

parties litigated Appellant’s motions for suppression of evidence, termination 

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* Retired Senior Judge assigned to the Superior Court.

1

 18 Pa.C.S.A. §§ 3121, 3123, 3124.1, and 2702. 
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of this prosecution for double jeopardy, and discovery of records. The trial 

court granted Appellant’s discovery motion but denied the others. 

On September 8, 2014, after an order setting trial for the November 

2014 term, Appellant pled guilty to the aforementioned offenses. Also on that 

date, the trial court imposed the term of incarceration set forth above and 

referred the matter to the Sexual Offenders Assessment Board (“SOAB”). The 

sentence was to run concurrently to other sentences Appellant was already 

serving—an aggregate 21 to 45 years of incarceration for aggravated assault 

of a prison guard and drug possession. N.T. Guilty Plea, 9/8/14, at 8-9; N.T. 

Hearing, 9/30/19, at 24-28. Plea counsel questioned whether imposition of 

the term of incarceration should await the conclusion of the SOAB assessment

and subsequent hearing to determine whether Appellant was a sexually violent 

predator (“SVP”),

2 but the trial court chose to impose the sentence of 

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2

 At a subsequent hearing on his alleged ineffectiveness, plea counsel 

explained: 

Because the court began doing it that way because we had 

cases where we reached an agreement where they would have 

been taken off the plea list. The person did the guilty plea but 

was never – never received a sentence would undergo the 

Megan’s Law assessment, then would come back, four, five, six 

months later and then the person would say, I want to withdraw 

my plea, and because they weren’t sentenced, it was supposed to 

be liberally granted, and it was wreaking havoc with those types 

of cases. 
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incarceration and proceed with the SVP determination afterward. N.T. Guilty 

Plea, 9/8/14, at 4. Many of the complications in this matter arise from this 

fact.

On September 29, 2014, Appellant filed a pro se motion to withdraw his 

guilty plea, alleging that defense counsel pressured him to plead guilty against 

his wishes. The trial court denied the motion by order of October 20, 2014, 

without prejudice to file a counseled motion, as Appellant remained 

represented at the time. 

On February 9, 2015, Appellant filed a premature pro se petition 

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. 

The trial court denied the petition by order of March 18, 2015, reasoning that

Appellant’s SVP status had yet to be determined and therefore his sentence 

was not final. The order did not reference the fact that Appellant remained 

represented by counsel when he filed the petition. 

An evidentiary hearing on Appellant’s SVP status was finally scheduled 

for March 27, 2017, but it was postponed at Appellant’s request. On April 6, 

2018, the trial court signed an order permitting Appellant to hire an expert, 

at the court’s expense, to assist him in the SVP proceeding. 

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So this was the courts’ response to try to bring some finality 

to not being able to just willy-nilly withdraw your plea simply 

because I want to. 

N.T. Hearing, 9/30/19, at 42. 
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Subsequently, plea counsel filed a motion to withdraw. That motion was 

the subject of a May 24, 2018, hearing at which trial court granted counsel’s 

motion and granted Appellant’s request to proceed pro se. On January 24, 

2019, however, the trial court appointed present counsel to assist Appellant 

in challenging his still-pending SVP determination. 

On August 2, 2019, counsel filed a (premature) PCRA petition, 

purportedly amending the prior pro se petition, in which Appellant challenged

the voluntariness of his plea, and asserted that prior defense counsel was 

ineffective for failing to file a motion to withdraw the plea. Even though

Appellant’s SVP determination remained outstanding, the trial court 

entertained the petition on the merits and conducted an evidentiary hearing 

on September 30, 2019. The trial court, after considering briefs from the 

parties, entered an order on December 23, 2020, directing the court 

administrator to schedule a hearing on Appellant’s SVP status. The trial court 

denied relief on Appellant’s challenges to the validity of his plea without 

prejudice to raise those issues again after the finalization of his judgment of 

sentence. 

Notwithstanding all the foregoing, Appellant filed a counseled motion to 

withdraw his guilty plea on September 8, 2021. That motion was the subject 

of a hearing on October 28, 2021. At that hearing, the trial court opined in 

part as follows: 
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I mean, there’s no doubt that, again there’s no easy way to 

say this, but this case has been a mess for a long time. And none 

of that was [Appellant’s] fault, as far as I can tell. [....]

The courts are very interested in whether – their [sic] 

concerned about using a plea as a sentence testing device. And 

year, I think it’s correct given the fact that the SVP designation 

wasn’t completed, it’s not a final sentence yet. But that – If I can 

choose my words carefully, the technical sense that – if you go to 

the substance of what the law is supposed to do – you may get 

the sentence, he got everything but the fact that he didn’t know 

if he had an SVP or not. 

So my concern here is allowing him to withdraw the plea 

here, I’m, in the subsequent sentence, allowing this to be used as 

a sentence testing device. 

N.T. Hearing, 10/28/21, at 12-13. 

The trial court denied Appellant’s motion to withdraw his plea, and the 

Commonwealth withdrew its request to have Appellant designated an SVP. 

Id. at 21. The trial court explained to Appellant that this brought the trial 

court proceedings to a close. Id. at 21-22. The trial court further explained 

that its order was not a re-sentencing, but a finalization of the sentence that 

had already been imposed more than seven years earlier.

3

 Id. at 25. The 

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3

 There is some confusion in the record as to whether Appellant served out 

his ten-year maximum term in this case prior to the October 28, 2021 hearing. 

Because the Commonwealth filed its criminal complaint in this matter in May 

of 2010, and because the trial court on September 8, 2014, imposed the 

present sentence to run concurrently with other, longer sentences Appellant 

was already serving, it is possible, depending on credit for time received, that 

Appellant has completed his sentence. The parties and the trial court 

acknowledged as much on the record but left the matter unresolved. N.T. 

Hearing, 10/28/21, at 4-5, 29-31. Proper computation of the running of 

Appellant’s sentence is not within the purview of this Court. Regardless, as 
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trial court nevertheless expressly reinstated Appellant’s post-sentence and 

appellate rights and explained those rights to him. Id. at 21-22; 27; 29. The 

trial court also noted that Appellant’s rape conviction carried with it a lifetime 

registration requirement. Id. at 32. 

Appellant filed this timely direct appeal on November 23, 2021. He 

presents two questions: 

I. Whether the lower court erred in its denial of the amended 

PCRA petition when it failed to find plea counsel ineffective 

for failing to withdraw [Appellant’s] guilty plea as 

[Appellant] requested him to do within the ten-day time 

frame? 

II. Whether the lower court erred in not allowing Appellant to 

withdraw his guilty plea nunc pro tunc? 

Appellant’s Brief at 4. 

The trial court addressed both questions and found that neither merited 

relief. Regarding Appellant’s first question presented, the court found that 

review of counsel’s effectiveness was appropriate on direct appeal in this case. 

In Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our Supreme Court 

reaffirmed that claims of ineffective assistance of counsel must be deferred to 

collateral review, with two limited exceptions. Pertinent for our purposes is 

the first of these: “[W]e appreciate that there may be extraordinary 

circumstances where a discrete claim (or claims) of trial counsel 

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this is a direct appeal, Appellant’s possible completion of the original sentence 

is no impediment to our review. 
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ineffectiveness is apparent from the record and meritorious to the extent that 

immediate consideration best serves the interests of justice[.]” Id. at 563. 

The Holmes Court gave trial courts discretion to review such claims. Id. 

Instantly, the trial court found extraordinary circumstances based upon 

the procedural history of this case. The trial court noted the multiple motions 

and petitions Appellant filed challenging his guilty plea, and the numerous 

delays in finalizing Appellant’s sentence, “which were in no way attributable 

to a lack of diligence on the part of [Appellant].” Trial Court Opinion, 2/2/22, 

at 12. “Thus, through no fault of his own, the [Appellant] suffered substantial 

delay in his ability to present issues of ineffective assistance of counsel and 

will suffer additional delay unless these issues are considered in this direct 

appeal.” Id. at 12-13. 

We are perplexed by this, inasmuch as Appellant filed a counseled 

motion to withdraw his guilty plea and a counseled, premature PCRA petition 

challenging the validity of his guilty plea. The trial court reviewed those filings

and denied them on the merits. We therefore conclude that prior counsel’s 

alleged ineffectiveness for failing to file a requested motion to withdraw 

Appellant’s guilty plea is not properly before us on this direct appeal.4 The 

trial court abused its discretion in concluding otherwise. 

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4

 Counsel’s failure to file a motion to withdraw the plea with in the “ten-day 

time frame,” Appellant’s Brief at 4, an apparent reference to the ten-day 

deadline for filing post-sentence motions (Pa.R.Crim.P. 720(A)), has no 
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We now turn to the merits of Appellant’s attempt to withdraw his guilty 

plea, which Appellant addresses in his second question presented.5 Rule 590

of the Pennsylvania Rules of Criminal Procedure governs guilty pleas and plea 

agreements, and the official comment thereto lists seven inquiries for the trial 

court to make at a plea colloquy. Pa.R.Crim.P. 590. Rule 591 permits 

withdrawal of a plea as follows: “At any time before the imposition of sentence, 

the court may, in its discretion, permit, upon motion of the defendant, [...] the 

withdrawal of a plea of guilty [...] and the substitution of a plea of not guilty.” 

Pa. R. Crim. P. 591(A). Thus, the standard for pre-sentence plea withdrawal 

is a very liberal one: 

(1) there is no absolute right to withdraw a guilty plea; (2) 

trial courts have discretion in determining whether a withdrawal 

request will be granted; (3) such discretion is to be administered 

liberally in favor of the accused; and (4) any demonstration by a 

defendant of a fair-and-just reason will suffice to support a grant, 

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bearing on the outcome of this appeal. As we discuss in more detail in the 

main text, Appellant’s motion to withdraw lacked merit, as it was a sentence 

testing device in this case. Moreover, the trial court and the parties treated 

Appellant’s sentence as non-final while the SVP hearing was pending. Thus, 

the ten-day period referenced in Appellant’s first question presented did not 

commence until October 28, 2021. And, in an abundance of caution, the trial 

court reinstated Appellant’s post-sentence and appellate rights on that date. 

5

 The question presented, quoted in the main text, challenges the trial courts’ 

refusal to permit plea-withdrawal nunc pro tunc. In substance, Appellant’s 

argument addresses the merits of the plea withdrawal issue without 

addressing why Appellant believes nunc pro tunc relief was necessary. 

Because Appellant attempted to withdraw his plea while jurisdiction remained 

with the trial court, and because the trial court addressed the issue on the 

merits, we confine our analysis to the merits of the issue. 
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unless withdrawal would work substantial prejudice to the 

Commonwealth.

Commonwealth v. Garcia, 280 A.3d 1019, 1023 (Pa. Super. 2022). 

The standard for post-sentence withdrawal of a plea is much stricter: 

[P]ost-sentence motions for withdrawal are subject to 

higher scrutiny since courts strive to discourage entry of 

guilty pleas as sentence-testing devices. A defendant must 

demonstrate that manifest injustice would result if the court were 

to deny his post-sentence motion to withdraw a guilty plea. 

Manifest injustice may be established if the plea was not tendered 

knowingly, intelligently, and voluntarily. In determining whether 

a plea is valid, the court must examine the totality of 

circumstances surrounding the plea. A deficient plea does not per 

se establish prejudice on the order of manifest injustice.

Commonwealth v. Kehr, 180 A.3d 754, 756–57 (Pa. Super. 2018)

(emphasis added). “Pennsylvania law presumes a defendant who entered a 

guilty plea was aware of what he was doing, and the defendant bears the 

burden of proving otherwise.” Commonwealth v. Kpou, 153 A.3d 1020, 

1024 (Pa. Super. 2016). 

Appellant believes we should consider his motion a pre-sentence motion 

to withdraw because his sex offender status was not final as of the dates of 

any of his various attempts to withdraw his plea. We disagree. The instant 

record reflects that Appellant never sought to withdraw his guilty plea until 

after the trial court imposed five to ten years of incarceration. Appellant’s SVP 

determination was outstanding at the time of his various attempts to withdraw 

his plea, but the Commonwealth ultimately withdrew its request to have 

Appellant declared an SVP. Thus, while the parties and the court were treating 
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Appellant’s judgment of sentence as nonfinal when he began seeking to 

withdraw his plea, he was aware of the term of incarceration. And the term 

of incarceration was never modified. Because the law discourages the use of 

guilty pleas as sentence-testing devices, and because Appellant did not seek 

to withdraw his plea in this case until after he was aware of his term of 

incarceration, we analyze his challenge under the post-sentence standard. 

The trial court assessed Appellant’s plea colloquy as follows: 

In [Appellant’s] case, a consideration of the totality of the 

circumstances leads to the conclusion that, despite an abbreviated 

colloquy, [Appellant] was fully cognizant of the nature of the guilty 

plea proceeding, the rights he was forfeiting by pleading guilty, 

and the consequences attendant to the entry of a guilty plea. 

Initially, it cannot be ignored that [Appellant’s] guilty plea followed 

his recent experiences in participating in two jury trials in other 

cases which went to verdict. [Appellant] was represented in all of 

his cases by the same trial counsel who was well familiar with 

[Appellant’s] concerns and intentions. [Appellant], having twice 

exercised his rights to a jury trial, did not require a detailed 

explanation of the process or nature of the constitutional right to 

a trial by jury. Focusing on the present case, [Appellant] had 

participated in the selection of a jury, listened to the court’s 

opening instructions and counsels’ opening arguments, and was 

able to observe the victim’s full testimony before a mistrial was 

declared. It, therefore, cannot be said that [Appellant] was 

unaware of the facts which would be considered as a basis for his 

plea, having sat through the victim’s detailed in-person testimony. 

Additionally, prior to [Appellant’s] entry of his plea, defense 

counsel reviewed with him the rights which are given up by 

pleading guilty, the nature of the charges, the possible defenses, 

and the consequences of entering a plea. At the time of 

[Appellant’s] plea, the court, who was familiar with [Appellant] 

from his previous court appearances, reviewed the penalties with 

[Appellant] and the elements of the crimes to which he was 

pleading guilty. The court then offered [Appellant] an opportunity 

to ask questions but he replied that he had none. Although 

[Appellant] testified at the evidentiary hearing that he was not 
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aware that he was entering a plea of guilty to rape, this is 

contradicted by the record which reflects that the court specifically 

explained to [Appellant] that he was entering a plea to rape and 

that the Commonwealth would have to prove that [Appellant] 

engaged in sexual intercourse with the victim by force or threat of 

force. When the court asked whether he had any questions about 

the charges, [Appellant] answered that he did not. 

Trial Court Opinion, 2/2/22, at 22-23. 

On review, the record supports the trial court’s conclusion that the 

totality of the circumstances reveals a knowing, intelligent, and voluntary 

plea. Though the colloquy was very short, Appellant was informed of the 

charges he was pleading to. Contrary to Appellant’s argument, the trial court 

informed him he was pleading guilty to rape and explained what the 

Commonwealth would have to prove to obtain a conviction on that charge. 

N.T. Guilty Plea, 9/8/14, at 6. Appellant’s claim that he believed he was 

pleading guilty to lesser offenses is belied by the record. Nor is there any 

evidence to support Appellant’s assertion that he was coerced into the plea. 

Further, defense counsel informed Appellant that, based on his past 

record, his guilty plea in this case would subject him to lifetime registration as 

a sex offender. N.T. Hearing, 9/30/19, at 31-32. Counsel explained to 

Appellant at the time of his plea that receiving his sentence prior to the SVP 

determination would make it more difficult to later withdraw his plea. Id. at 

42-43. Defense counsel also testified that that the victim’s testimony (which 

was complete before a mistrial was declared), played a role in the decision to 

plead guilty. N.T. Hearing, 9/30/19, at 23-24. 
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For these reasons, we believe, given the totality of the circumstances, 

that Appellant entered a knowing, intelligent, and voluntary plea. We discern 

no manifest injustice in the trial court’s decision to deny Appellant’s motion to 

withdraw his guilty plea. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/28/2023