J-S73019-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. DEVANTAE BENSON Appellant No. 213 WDA 2016

Appeal from the Judgment of Sentence January 12, 20 16 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0009546-2015
BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and JENK INS, J. MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 1, 2016 Devantae Benson appeals from the judgment of sente nce entered in the Court of Common Pleas of Allegheny County. Aft er careful review, we affirm. Benson entered a guilty plea to one count each of P ossession with Intent to Deliver (Heroin) 1 and Conspiracy. 2 The court sentenced Benson to one (1) year less one day to two (2) years less two days’ incarceration, followed by three years’ probation. After sentenci ng was pronounced, Benson orally sought to withdraw his plea, stating several times that he was

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1 35 P.S. § 780-113(a)(3).

2 18 Pa.C.S. § 903(c).J-S73019-16

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“confused” and did not understand what was going on . The trial court denied the motion. On appeal, Benson claims the court erred in denying his motion to withdraw. He argues that because “the plea was ent ered when Mr. Benson suffered from confusion from his mental illness” th at his plea was not knowing or intelligent and, therefore, this establi shed manifest injustice. We disagree. There is no absolute right to withdraw a guilty pl ea, and the decision as to whether to allow a defendant to do so is a ma tter within the sound discretion of the trial court. Commonwealth v. Muhammad , 794 A.2d 378, 382 (Pa. Super. 2002). After sentencing, “a showin g of prejudice on the order of manifest injustice” is required before wit hdrawal is properly justified. Commonwealth v. Shaffer , 446 A.2d 591, 593 (Pa. 1982), quoting Commonwealth v. Starr . 301 A.2d 592, 595 (Pa. 1973). “[A] manifest injustice occurs when a plea is not tender ed knowingly, intelligently, voluntarily, and understandingly.” Commonwealth v. Gunter , 771 A.2d 767, 771 (Pa. 2001). In determining wheth er a plea is valid, the court must examine the totality of the circumstance s surrounding the plea. Commonwealth v. Broaden , 980 A.2d 124, 129 (Pa. Super. 2009). Further, post-sentence motions for withdrawal are s ubject to higher scrutiny since courts strive to discourage the entry of guil ty pleas as sentencingtesting devices. Commonwealth v. Kelly , 5 A.3d 370, 377 (Pa. Super. 2010).J-S73019-16

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The Pennsylvania Rules of Criminal Procedure mandat e pleas be taken in open court and require the court to conduc t an on-therecord colloquy to ascertain whether a defendant is aware of his rights and the consequences of his plea. Under Rule 590, the court should confirm, inter alia , that a defendant understands: (1) the nature of the charges to which he is pleadi ng guilty; (2) the factual basis for the plea; (3) he is giving up his right to trial by jury; (4) [] the presumption of innocence; (5) h e is aware of the permissible ranges of sentences and fines possi ble; and (6) the court is not bound by the terms of the agreemen t unless the court accepts the plea. The reviewing Court will ev aluate the adequacy of the plea colloquy and the voluntariness of the resulting plea by examining the totality of the cir cumstances surrounding the entry of that plea.

Commonwealth v. Prendes , 97 A.3d 337, 352–53 (Pa. Super. 2014) (citations omitted). Thus, in order to establish manifest injustice, Ben son must show that his guilty plea was not knowing, intelligent or vol untary. Here, the court conducted a guilty plea colloquy on January 12, 201 6. The court asked Benson if he had taken any medications, drugs or al cohol in the last 24 hours that would impair his ability to understand o r respond to the court’s questions, or if he had any “mental illness, menta l infirmity and/or physical infirmity that would impair” his ability to unders tand or respond to the court’s questions. Benson replied, “No, Your Honor .” N.T. Guilty Plea and Sentencing, 1/12/16, at 5-6. Benson acknowledged that he faced a maximum sentenc e of 15 years imprisonment and/or a fine of $250,000 for each off ense. Id. at 6-7. Additionally, Benson signed an eleven-page guilty p lea colloquy form, initialed each page of the form, stated that he had read each question andJ-S73019-16

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understood each question, and stated that he answer ed the questions “honestly and truthfully.” Id. at 7-8. At the conclusion of the recitation of the facts t hat the Commonwealth was prepared to prove (undercover officers conducte d a controlled buy of $120 worth of heroin), Benson stated that he was en tering his guilty plea because he was, in fact, guilty. Id. at 10. The court proceeded immediately to sentencing. The court sentenced Benson to a county sentence of imprisonment of one (1) year less one day to two (2) years less two days. The court specifically noted it was “going below the mitigate d range,” id. at 23, in light of the fact that Benson’s counsel informed the cour t that Benson had several mental health diagnoses (bipolar disorder, depressi on, anxiety and posttraumatic stress disorder (PTSD)). Id. at 15. The court also sentenced below the mitigated range to accommodate Benson’s r elease after incarceration to a mental health/substance abuse co mmunity related rehabilitation program. Id. at 15-16, 23-24. As indicated above, Benson fully participated in a verbal and written colloquy and was represented by counsel throughout the plea proceedings. The court conducted a thorough colloquy and went ou t of its way to accommodate Benson with respect to his mental healt h issues. Benson admitted his guilt and acknowledged his understandi ng that he faced a sentence of up to fifteen years’ imprisonment on ea ch count. It was onlyJ-S73019-16

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after the court had pronounced the sentenced that Benson stated he was confused. Before withdrawal of guilty plea after sentencing i s justified, some demonstration must be made that the plea was not vo luntary or that the plea was entered without knowledge of the charge su ch that refusing to allow the petitioner to withdraw his plea would amo unt to a manifest injustice. Commonwealth v. Shaffer , 446 A.2d 591 (Pa. 1982). Benson has made no such showing. If a plea of guilty coul d be retracted with ease after sentencing, the accused might be encouraged t o plead guilty to test the weight of potential punishment, and withdraw th e plea if the sentence were unexpectedly severe. Starr , supra . Further, this Court has held that “a person who elects to plead guilty is bound by th e statements he makes in open court while under oath and he may not later as sert grounds for withdrawing the plea which contradict the statement s he made at his plea.” Commonwealth v. Turetsky , 925 A.2d 876, 880 (Pa. Super. 2007), citing Commonwealth v. Stork , 737 A.2d 789, 790-91 (Pa. Super. 1999). Here, there is no indication in the record before u s that Benson’s counseled written and oral pleas were involuntary. There is nothing in the record prior to sentencing that indicates Benson wa s confused about anything. It was only after pronouncement of sente nce that Benson claimed confusion. Benson’s post-sentence assertion that h is guilty plea was unknowing, unintelligent or involuntary is refuted by the record and,J-S73019-16

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therefore, we discern no manifest injustice that wo uld permit him to withdraw it. Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/1/2016