J-S33040-16

___________________________

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DWAYNE ROBERT MUSSOMELE

Appellant No. 1737 WDA 2015

Appeal from the Judgment of Sentence August 31, 2015

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0010592-2015

BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 14, 2016

Appellant, Dwayne Robert Mussomele, appeals from the judgment of 

sentence entered in the Allegheny County Court of Common Pleas, following 

his negotiated guilty plea to receiving stolen property.1 We affirm. 

The relevant facts and procedural history of this case are as follows. 

Beginning in or around March 2015, Appellant performed construction work 

on Mr. and Mrs. McAdoo’s home. In June 2015, Mrs. McAdoo noticed she 

was missing jewelry from her home. The McAdoos reported the missing 

jewelry to Nathan Ebaugh, who was in charge of the construction crew. Mr. 

Ebaugh spoke to his crew about the missing jewelry, and Appellant initially 

____________________________________________

1 18 Pa.C.S.A. § 3925. 
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denied having any knowledge about the missing items. Following 

Appellant’s conversation with Mr. Ebaugh, Appellant stopped reporting for 

work. Several weeks after their conversation, Appellant admitted to Mr. 

Ebaugh that Appellant was in possession of a wedding ring Mrs. McAdoo had 

reported missing. Appellant also admitted he had sold some of the missing 

jewelry to a pawnshop. Mr. Ebaugh called local pawnshops and was able to 

track down some of the jewelry. The pawnshop confirmed Appellant had 

sold some of the items reported missing, and that the pawnshop had already 

re-sold some items. As to the jewelry the pawnshop still had in its 

possession, Mr. Ebaugh purchased that jewelry to return to the McAdoos. 

The McAdoos filed a police report on July 18, 2015, accusing Appellant of 

stealing jewelry and other items missing from their home.

On July 19, 2015, Mr. Ebaugh arranged to meet Appellant to retrieve 

the missing items Appellant had in his possession. Appellant gave Mr. 

Ebaugh a green cloth bag containing a white gold wedding band, a yellow 

gold chain, and a gold plated bracelet. Police officers were dispatched to 

assist Mr. Ebaugh, and they subsequently detained Appellant and brought 

him to the police station for questioning. Appellant informed police that 

while he was working on the McAdoos’ home, Appellant was outside walking 

around and saw a green bag with a yellow string hanging from under a 

branch at a property near the McAdoos’ home. Appellant said he was unsure 

to whom the bag belonged, so he kept it. Appellant conceded he “made a 
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bad choice” by not turning in the bag to police. Appellant admitted he 

pawned some of the jewelry he found in the bag. Following the interview, 

police spoke with Mrs. McAdoo, who confirmed where her jewelry and other 

missing items had been stored inside the home before they went “missing.” 

The Commonwealth subsequently charged Appellant with receiving 

stolen property. On August 31, 2015, Appellant entered a negotiated guilty 

plea to that crime in exchange for twenty-four months’ probation and 

$4,355.00 in restitution. Appellant signed a plea offer sheet expressly 

stating the amount of restitution and the length of the negotiated sentence. 

Appellant also completed a written plea colloquy confirming his decision to 

plead guilty was knowing, intelligent, and voluntary. At the beginning of the 

guilty plea hearing, the clerk read on-the-record the terms of the negotiated 

guilty plea, including the amount of restitution and the length of the 

negotiated sentence. The parties stipulated to the facts as set forth in the 

criminal complaint and affidavit of probable cause. After conducting a full 

guilty plea colloquy, the court accepted Appellant’s plea as knowing, 

intelligent, and voluntary, and imposed the negotiated sentence of twentyfour months’ probation and $4,355.00 in restitution. 

On September 24, 2015, Appellant filed a petition for allowance to file 

a motion to withdraw his guilty plea nunc pro tunc. The court granted 

Appellant’s requested relief the next day. Appellant timely filed a postsentence motion to withdraw his guilty plea nunc pro tunc on September 30, 
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2015, claiming his guilty plea was invalid because Appellant was uninformed 

about the length of his sentence and the amount of restitution when he 

entered his plea. The court denied Appellant’s motion that day. Appellant 

timely filed a notice of appeal on October 30, 2015. On November 30, 2015, 

the court ordered Appellant to file a concise statement of errors complained 

of on appeal, and Appellant complied. 

Appellant raises one issue for our review:

WAS [APPELLANT’S] GUILTY PLEA NEITHER KNOWINGLY 

NOR INTELLIGENTLY MADE; THUS A MANIFEST INJUSTICE 

OCCURRED AND THE TRIAL COURT ERRED IN NOT 

ALLOWING [APPELLANT] TO WITHDRAW HIS PLEA?

(Appellant’s Brief at 4). 

Appellant argues he did not understand the terms of his negotiated 

plea agreement before he pled guilty. Appellant asserts he was unaware the 

court would sentence him to twenty-four months’ probation and impose 

restitution in the amount of $4,355.00. Appellant claims the plea offer sheet 

he signed was confusing because it indicated the value of the jewelry at 

issue as $1,220.00. Appellant contends the criminal complaint does not 

suggest the value of the jewelry is $4,355.00. Appellant insists the plea 

offer sheet was also unclear because in the space marked “months 

probation” the number “12” is written, crossed out with the number “24” 

written next to it. Appellant maintains the totality of the circumstances 

demonstrates his plea was unknowing, unintelligent, and involuntary. 

Appellant concludes he established prejudice demonstrating a manifest 
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injustice, and this Court must reverse the order denying Appellant’s postsentence motion to withdraw his guilty plea. We disagree.

“[A] defendant has no absolute right to withdraw a guilty plea; rather, 

the decision to grant such a motion lies within the sound discretion of the 

trial court.” Commonwealth v. Muhammad, 794 A.2d 378, 382 

(Pa.Super. 2002). Withdrawal of a guilty plea after sentencing requires “a 

showing of prejudice on the order of manifest injustice.... A plea rises to the 

level of manifest injustice when it was entered into involuntarily, 

unknowingly, or unintelligently.” Id. at 383 (internal citations and quotation 

marks omitted). A defendant’s disappointment with the sentence imposed 

does not represent a manifest injustice. Id. Pennsylvania law presumes a 

defendant who entered a guilty plea was aware of what he was doing and 

bears the burden of proving otherwise. Commonwealth v. Pollard, 832

A.2d 517 (Pa.Super. 2003). 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.

“This Court evaluates the adequacy of the guilty plea colloquy and the 

voluntariness of the resulting plea by examining the totality of the 

circumstances surrounding the entry of that plea.” Muhammad, supra at 

383-84. A guilty plea will be deemed valid if an examination of the totality 

of the circumstances surrounding the plea shows that the defendant had a 
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full understanding of the nature and consequences of his plea such that he 

knowingly and intelligently entered the plea of his own accord. 

Commonwealth v. Rush, 909 A.2d 805 (Pa.Super. 2006). 

Additionally, with respect to negotiated plea agreements:

[W]here the guilty plea agreement between the 

Commonwealth and a defendant contains a negotiated 

sentence, ...and where that negotiated sentence is 

accepted and imposed by the court, a defendant is not 

allowed to challenge the discretionary aspects of the 

sentence. Commonwealth v. Reichle, [589 A.2d 1140 

(Pa.Super. 1991)]. We stated, “If either party to a 

negotiated plea agreement believed the other side could, 

at any time following entry of sentence, approach the 

judge and have the sentence unilaterally altered, neither 

the Commonwealth nor any defendant would be willing to 

enter into such an agreement.” Id. at 1141. 

We find the reasoning of Reichle particularly pertinent in 

this case. Appellant entered a negotiated guilty plea and 

now seeks to avoid a specific term negotiated as part of 

that arrangement. If we allowed him now to avoid the 

term, it “would undermine the designs and goals of plea 

bargaining,” and “would make a sham of the negotiated 

plea process.” [Id.] 

Commonwealth v. Byrne, 833 A.2d 729, 735 (Pa.Super. 2003) (some 

internal citations and quotation marks omitted). 

Instantly, the trial court addressed Appellant’s request to withdraw his 

guilty plea as follows:

[Appellant] completed a written plea colloquy and engaged 

in an on-the-record colloquy with this [c]ourt. ... 

[Appellant] claims his plea was unknowing and involuntary 

because he was not informed of the details of the sentence 

before signing his plea. This claim is belied by the written 

plea offer that [Appellant] and his counsel signed, as well 
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as the transcript of the plea and sentencing hearing. 

[Appellant] was sentenced pursuant to his negotiated plea 

agreement and, after sentence was imposed, he stated 

that he understood his sentence and had no questions. At 

no time did [Appellant] object, question or inform the 

court that his guilty plea was anything other than 

knowingly and voluntarily entered. ... 

(Trial Court Opinion, filed December 2, 2015, at 2-3). We see no reason to 

disrupt the court’s analysis. See Muhammad, supra. 

The record makes clear Appellant understood he was pleading guilty to 

receiving stolen property and facing twenty-four months’ probation and 

$4,355.00 in restitution, pursuant to the parties’ negotiated plea agreement. 

The plea offer sheet expressly states the amount of restitution as $4,355.00 

with multiple circles drawn around that number. The plea offer sheet 

contains a notation stating “Jewelry $1,222.00,” written near the top of the 

page, but the record suggests that dollar amount correlates with the value of 

the jewelry actually recovered from Appellant on the day of his arrest, and 

not the total value of all jewelry stolen. Appellant ignores that the McAdoos 

reported other items stolen from their home as well. Regarding the length 

of sentence, the number “12” is crossed out with a slash through it; the 

number “24” is written next to it and circled in the space marked “months 

probation.” Appellant and his counsel both signed the plea offer sheet. 

Additionally, at the beginning of Appellant’s guilty plea hearing, the 

court clerk stated the terms of the negotiated sentence, indicating the length 

of the agreed-upon sentence and the amount of restitution. Appellant told 
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the court he understood the terms of his plea agreement and did not object 

following the court’s acceptance of his guilty plea or the imposition of 

sentence. When the court asked Appellant if he had any questions regarding 

his sentence, Appellant said no. The record shows Appellant had a full 

understanding of the nature and consequences of his plea. See Rush, 

supra. Further, allowing Appellant to renege on his end of the bargain at 

this juncture would run afoul of the concept of negotiating plea agreements. 

See Byrne, supra; Reichle, supra. Therefore, the court properly denied 

Appellant’s post-sentence motion to withdraw his guilty plea. Accordingly, 

we affirm.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/14/2016