J-S25027-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DUPREE BENTLEY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 21 EDA 2023

Appeal from the Judgment of Sentence Entered July 15, 2022

In the Court of Common Pleas of Montgomery County

Criminal Division at CP-46-CR-0001567-2021

BEFORE: NICHOLS, J., MURRAY, J., and McCAFFERY, J.

MEMORANDUM BY MURRAY, J.: FILED AUGUST 16, 2023

Dupree Bentley (Appellant) appeals from the judgment of sentence 

imposed after he pled guilty to one count each of robbery, attempted robbery 

of a motor vehicle, and persons not to possess a firearm.

1

 We affirm.

The trial court summarized the following case history:

[Appellant] admitted as part of [his] open plea that on January 

22, 2021, while in the Norristown, Montgomery County, home of 

Austin Lindsey, he pointed a firearm at Lindsey and stole Lindsey’s 

cell phone and Xbox gaming system. (N.T., 4/12/22, pp. 18-19). 

[Appellant] asked where Lindsey’s wallet and credit cards were[,]

and Lindsey responded that they were in Lindsey’s vehicle. Id. at 

19. [Appellant] left the residence, driving off in Lindsey’s vehicle, 

and eventually led police on a chase through Bridgeport and 

Conshohocken. Id. He crashed the vehicle while driving on 1-76, 

ran from the vehicle into traffic[,] and forcibly attempted to take 

control of another vehicle on the highway before being 

apprehended. Id.

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1 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 901(a), and 6105(a)(1).
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[The trial] court subsequently sentenced [Appellant] to 6 -

12 years in prison for robbery, a consecutive 3 - 6 years in prison 

for the firearms offense[,] and a concurrent 2 - 4 years in prison 

for the attempted robbery of a motor vehicle. [Appellant,] 

through plea counsel, filed a timely post-sentence motion 

requesting that the sentence imposed for the firearms offense be 

set to run concurrently rather than consecutively. [The trial] court 

denied the motion on November 17, 2022.

Trial Court Opinion, 3/15/23, at 1-2 (footnotes omitted).

Appellant timely appealed. After a brief delay caused by a change of 

counsel, Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant presents a single issue for review: 

Did the [trial] court err in accepting [Appellant’s] guilty plea since 

the plea was not knowingly and voluntarily entered because 

[Appellant] was informed at the time of his plea that the court 

would apply a sentencing guideline range of 40 - 60 months +/-

12 [months] for count 1: robbery, when, in fact, at sentencing the 

court applied a deadly weapon[s enhancement] range of 66 - 70 

months +/- 12 [months] for count 1: robbery?

Appellant’s Brief at 3 (capitalization altered).

“It is well-settled that the decision whether to permit a defendant to 

withdraw a guilty plea is within the sound discretion of the trial court.” 

Commonwealth v. Hart, 174 A.3d 660, 664 (Pa. Super. 2017). The term 

discretion,

imports the exercise of judgment, wisdom and skill so as to reach 

a dispassionate conclusion, and discretionary power can only exist 

within the framework of the law[,] and is not exercised for the 

purpose of giving effect to the will of the judges. Discretion must 

be exercised on the foundation of reason, as opposed to prejudice, 

personal motivations, caprice or arbitrary action. Discretion is 

abused when the course pursued represents not merely an error 

of judgment, but where the judgment is manifestly unreasonable 
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or where the law is not applied or where the record shows that 

the action is a result of partiality, prejudice, bias or ill will.

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

omitted).

There are different standards for reviewing requests to withdraw a guilty 

plea before and after sentencing. Commonwealth v. Flick, 802 A.2d 620, 

623 (Pa. Super. 2002). Pre-sentence, the trial court administers its discretion 

liberally in favor of the accused, and “any demonstration by a defendant of a 

fair-and-just reason will suffice to support a grant, unless withdrawal would 

work substantial prejudice to the Commonwealth.” Commonwealth v. 

Carrasquillo, 115 A.3d 1284, 1292 (Pa. 2015).

In contrast,

post-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 postsentence 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. Broaden, 980 A.2d 124, 129 (Pa. Super. 2009) (citations 

omitted). We presume when a defendant has entered a guilty plea, he was 

aware of what he was doing; it is his burden to prove the plea was involuntary. 

See Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa. Super. 2001). 

Where the record demonstrates the trial court conducted a guilty plea colloquy 
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and the defendant understood the nature of the charges against him, the plea 

is voluntary. See id.

A valid plea colloquy examines:

1) the nature of the charges, 2) the factual basis for the plea, 3) 

the right to a jury trial, 4) the presumption of innocence, 5) the 

sentencing ranges, and 6) the plea court’s power to deviate from 

any recommended sentence.

Commonwealth v. Morrison, 878 A.2d 102, 107 (Pa. Super. 2005) (citation 

omitted). 

Here, the record reflects that Appellant waived his claim that his plea 

was not voluntary. We have explained:

[T]o preserve an issue related to a guilty plea, an appellant must 

either “object[ ] at the sentence colloquy or otherwise raise [ ] the 

issue at the sentencing hearing or through a post-sentence 

motion.” Commonwealth v. D’Collanfield, 805 A.2d 1244, 

1246 (Pa. Super. 2002). See Pa.R.Crim.P. 720(A)(1), 

(B)(1)(a)(i); see also Pa.R.A.P. 302(a) (“Issues not raised in the 

lower court are waived and cannot be raised for the first time on 

appeal.”).

Commonwealth v. Monjaras-Amaya, 163 A.3d 466, 468–69 (Pa. Super. 

2017).

The transcript of the sentencing hearing reveals Appellant did not seek 

to withdraw or otherwise challenge his guilty plea. See N.T., 7/15/22, at 1-

26. Appellant subsequently filed a post-sentence motion, but did not seek to

withdraw his guilty plea; he requested only that the trial court reconsider his 

sentence. See Motion to Reconsider Sentence, 7/20/22, at 1-2

(unnumbered). Appellant first claimed his plea was involuntary in his Rule 
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1925(b) statement. See Concise Statement of Errors Complained of on 

Appeal, 3/8/23, at 1 (unnumbered). 

Appellant argues his plea was unknowing and involuntary because he 

was not “informed at the time of his plea that the court would apply ... a deadly 

weapon [enhancement].” Appellant’s Brief at 4. Because Appellant first raised 

this claim in his Rule 1925(b) statement, it is waived. See Monjaras-Amaya, 

163 A.3d at 468-69; see also Commonwealth v. Lincoln, 72 A.3d 606, 

609-10 (Pa. Super. 2013) (“A defendant wishing to challenge the 

voluntariness of a guilty plea ... must either object during the plea colloquy or 

file a motion to withdraw the plea within ten days of sentencing. Failure to 

employ either measure results in waiver.” (citations omitted)); 

Commonwealth v. Coleman, 19 A.3d 1111, 1118 (Pa. Super. 2011) (issues 

raised for first time in a Rule 1925(b) statement are waived); Pa.R.A.P. 

302(a); Pa.R.Crim.P. 720(B)(1)(a)(i). 

In the absence of waiver, the claim would not merit relief. Appellant’s 

oral and written colloquies met the standards set forth in Morrison. See N.T., 

4/12/22, at 3-20; Written Guilty Plea Colloquy, 4/11/22, at 1-10; see also 

Morrison, 878 A.2d at 107. 

At sentencing, the trial court addressed the application of the deadly 

weapon enhancement, stating that it was “based upon the facts that were 

established by the factual basis of the plea, that a firearm was used[.]” N.T., 

7/15/22, at 14. Appellant did not object. Id. at 15. Also, in his post-sentence 
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motion, Appellant conceded “the parties agreed that the applicable guidelines 

range for sentencing” included the deadly weapon enhancement. Motion to 

Reconsider Sentence, 7/20/22, at 2 (unnumbered). 

The sentencing court “has no discretion to refuse to apply the deadly 

weapon enhancement when it is appropriate.” Commonwealth v. Solomon, 

151 A.3d 672, 677 (Pa. Super. 2016) (citation omitted). In Commonwealth 

v. Septak, 518 A.2d 1284 (Pa. Super. 1986), the trial court refused to apply 

the deadly weapon enhancement after finding that the Commonwealth had 

failed to adequately notify the defendant of its application. Id. at 1286-87. 

This Court found that the trial court erred. We stated:

We know of no case law that requires that a defendant be advised 

of the specific Sentencing Guidelines which are applicable to his 

case prior to the court’s acceptance of his guilty plea nor is such 

notice specifically required by statute.

Id. at 1287. See also Commonwealth v. Pokorny, 520 A.2d 511, 512 (Pa. 

Super. 1987) (vacating and remanding for resentencing where the trial court 

refused to apply the deadly weapon enhancement based on the 

Commonwealth’s failure during the plea colloquy to state it was seeking the 

enhancement). 

Recently, in Commonwealth v . Midgley, 289 A.3d 1111 (Pa. Super. 

2023), the appellant claimed his plea was unknowing and involuntary because 

counsel failed to inform him that the sentencing court would apply the deadly 

weapon enhancement. Midgley, 289 A.3d at 1118. We rejected appellant’s

claim, observing that he had
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demonstrated his understanding during the plea colloquy that 

there was no agreement as to sentencing and that his maximum 

total sentencing exposure was nine years. Because the court 

imposed an aggregate sentence of four and a half to nine years, 

we cannot say that his plea was unknowing or involuntary.

Id. at 1120.

Similarly, the record in this case, including Appellant’s responses in his

written and oral plea colloquies, establishes Appellant’s understanding of the 

nature and consequences of his guilty plea. For example, Appellant 

acknowledged he faced a possible maximum sentence of 60 years in prison. 

N.T., 4/12/22, at 6; see also Written Guilty Plea Colloquy, 4/11/22, at 4; 

Addendum to Guilty Plea Colloquy, 4/22/22, at 10. Appellant also confirmed 

that there was no agreement regarding his sentence, which would be 

determined by the trial court. Id. at 15. Under these circumstances, 

Appellant cannot show that his plea was involuntary. Midgley, supra at 

1120; see also Septak, supra at 1286-87. In the absence of waiver, 

Appellant would not be entitled to relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/16/2023
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