J-S55030-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. BRANDON WILLIAM GROVER, Appellant No. 440 WDA 2015

Appeal from the Judgment of Sentence Entered August 12, 2014

In the Court of Common Pleas of Potter County Criminal Division at No(s): CP-53-CR-0000055-2013

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and S TRASSBURGER, J. * MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 29, 2015 Appellant, Brandon William Grover, appeals from th e judgment of sentence of an aggregate term of 3 to 6 years’ impr isonment, imposed after he pled guilty to aggravated assault, accidents inv olving death or personal injury, and recklessly endangering another person. Appellant asserts that the trial court abused its discretion in denying hi s post-sentence motion to withdraw his guilty plea. We affirm.

The trial court summarized the relevant facts and procedural history in its Pa.R.A.P. 1925(a) opinion as follows: On January 30, 2013[,] charges, being 19 counts inc luding 4 felonies, were filed against [Appellant] concerning an incident where it is alleged that [Appellant] did strike two individuals with his vehicle. On August 12, 2014, after being sched uled for jury

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* Retired Senior Judge assigned to the Superior Cour t.J-S55030-15

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selection on several occasions, [Appellant] pled gu ilty to Count 3 – Aggravated Assault; Count 5 – Accidents Involving Death or Personal Injury[;] and Count 11 – Recklessly Endang ering Another Person. Also on August 12, 2014, [Appellan t] was sentenced in accordance with his binding Plea Agree ment with an agreed upon sentence of 3-6 years of incarcerati on. The sentence[,] which was reduced to a written Order of Sentence[,] was signed on August 13, 2014, and filed on August 14, 2014. Subsequently on August 14, 2014, [Appellant] filed a Motion Challenging the Validity of Guilty Plea alleging th at Defense Counsel, Daniel Stefanides[,] and the District Atto rney, Andy Watson[,] coerced him into entering a guilty plea. Attorney Stefanides filed a Motion to Withdraw at the same t ime as [Appellant’s] Motion Challenging the Validity of [ ] Guilty Plea. On November 12, 2014[,] Attorney Richard McCoy was appointed to represent [Appellant] in the Motion Ch allenging the Validity of Guilty Plea. On December 12, 2014[,] a rgument was heard on both the Motion Challenging the Validity o f Guilty Plea and the Motion to Withdraw. Attorney Stefanides wa s granted leave to withdraw. [Appellant] provided testimony as to the reasoning behind his decision to enter a Plea. [Ap pellant] reported that prior to entry of the Plea, [ ] he di scussed the case with the District Attorney and his Attorney, Dan St efanides[,] and that his counsel advised him that he could be f acing 15 to 30 years of incarceration if he did not accept the Plea. Thereafter, [Appellant] acknowledged that he signed a binding Plea which included a sentence of 3-6 years of inca rceration. [Appellant] admits that he understood the 3-6 year recommended sentence. [Appellant] testified that h e obtained his GED and attended some education through Boces i n NY. The Court engaged with [Appellant] in an extensive coll oquy at the time of the Plea proceeding and [Appellant] acknowl edged that his Plea was knowing and voluntary. [Appellant’s] former counsel, Daniel Stefanides[,] testified that he met [Appellant] at the jail on Friday, Augu st 6, 2014[,] to discuss the Plan. Attorney Stefanides reported that he had advised [Appellant] they could go to trial if he de sired to do so. Additionally, Mr. Stefanides advised [Appellant] th at the Plea would result in three of the felonies being nolle prossed

. Attorney Stefanides testified that he reviewed the Plea documents with [Appellant] line by line. Attorney Stefanides report[ed] that [Appellant] never made any mention that he feltJ-S55030-15

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coerced and Counsel was not aware of any threats be ing made to [Appellant]. The Court finds Attorney Stefanide s credible and [Appellant] to no[t] be credible based upon the tes timony and the contents of the Plea and Sentencing hearings. Trial Court Order (TCO), 2/11/15, at 1-2 (unpaginat ed). The trial court denied Appellant’s motion challeng ing the validity of his guilty plea by order of court dated February 5, 201 5. Appellant timely filed a notice of appeal on March 6, 2015, followed by a ti mely court ordered statement of errors complained of on appeal. Appel lant now presents one

issue for our review: “Did the trial court err in denying [Appellant’s] postsentence motion to withdraw his guilty plea because [Appellant] testified that he felt coerced into entering his guilty plea and was denied the opportunity to discuss extraneous issue[s] during h is allocution?” Appellant’s Brief at 2. We begin by noting the standard for withdrawal of a guilty plea, which we previously explained in detail as follows: [A] defendant has no absolute right to withdraw a g uilty plea; rather, the decision to grant such a motion lies wi thin the sound discretion of the trial court. Commonwealth v. Hutchins , 453 Pa. Super. 209, [212,] 683 A.2d 674, 675 (1996). I n the seminal case of Commonwealth v. Forbes , 450 Pa. 185, 299 A.2d 268 (1973), the Supreme Court set forth the st andard for determining when a motion to withdraw a guilty plea prior to sentencing should be granted. The Court stated tha t “although there is no absolute right to withdraw a guilty ple a, properly received by the trial court, it is clear that a req uest made before sentencing ... should be liberally allowed.” 450 Pa. at 190, 299 A.2d at 271. The Court then outlined the now well- established two prong test for determining when to grant a pre- sentence motion to withdraw a plea: (1) the defendant has pr ovided a “fair and just reason” for withdrawal of his plea; and (2) theJ-S55030-15

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Commonwealth will not be “substantially prejudiced in bringing the case to trial.” Id. The standard for withdrawal of a guilty plea after imposition of sentence is much higher; a “showing of prejudice on the order of manifest injustice is required before withdrawal is properly justified.” Commonwealth v. Carpenter , 555 Pa. 434, 454, 725 A.2d 154, 164 (1999) (quoting Commonwealth v. Shaffer , 498 Pa. 342, 346, 446 A.2d 591, 593 (1982)). “A plea rises to the level of manifest injustice when it wa s entered into involuntarily, unknowingly, or unintelligently.” Commonwealth v. Stork , 737 A.2d 789, 790 (Pa. Super. 1999) (citation omitted). Commonwealth v. Muhammad , 794 A.2d 378, 382-383 (Pa. Super. 2002). As we explained in Muhammad , the higher “manifest injustice” standard is applied to a post-sentence withdrawal o f a guilty plea in an effort to discourage the entrance of a plea as a “sentence testing device.” Id. We further note that “disappointment by a defendant in the sentence actually imposed does not represent manifest injustice.” Id. Here, Appellant asserts that he “suffered a manife st injustice in this case” because he was pressured by his attorney to e nter into a guilty plea

based on the false assurance that he would have the right to read a prepared statement to the court. Appellant’s Brief at 7. Appellant claims that, instead, the court prevented him from reading his entire statement, thereby denying him a full and complete opportunity to exercise his right of

allocution. Id. As explained by the trial court in its Rule 1925(a ) opinion: On the same date as the Plea, being August 12, 2014 , [Appellant] was sentenced in conformity with the bi nding Plea Agreement. During that proceeding[, Appellant] rea d a portion of a written statement to the [c]ourt. The subject of theJ-S55030-15

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statement was [Appellant’s] other case (47 of 2013) and [Appellant’s] belief that Judge Leete who was presi ding over that case should recuse himself. The [c]ourt informed [ Appellant] that it was only considering matters pertinent to t he present case. [Appellant] then indicated that for the pres ent case he was satisfied with his Plea, satisfied with his att orney’s representation, and that he understood his Plea. [ Appellant] then indicated there was nothing else the [c]ourt n eeded to know about [Appellant] or his life prior to sentenc ing. When asked if they had any questions regarding the sente nce of the [c]ourt[,] both Defense Counsel and [Appellant] ind icated that they did not. TCO at 4 (unpaginated). In order to establish manifest injustice, Appellan t must show that his plea was entered into involuntarily, unknowingly, o r unintelligently. To ascertain whether Appellant entered his plea in suc h a manner, we must examine the guilty plea colloquy. The coll oquy must inquire into the following areas: (1) the nature o f the charges; (2) the factual basis of the plea; (3) the right to trial by jury; (4) the presumption of innocence; (5) the permissible r ange of sentences; and (6) the judge’s authority to depart from any recommended sentence. This Court evaluates the ade quacy of the guilty plea colloquy and the voluntariness of t he resulting plea by examining the totality of the circumstances surrounding the entry of that plea. Id. at 383-384 (internal quotation marks and citations omitted). The record clearly reflects a guilty plea colloquy by the trial court addressing all of the aforementioned areas. See N.T. Plea/Sentencing Hearing, 8/12/14, at 2-7. Moreover, the record ind icates that the trial court specifically asked Appellant regarding his guilty p lea: “Now, have you had enough time to fully discuss this matter, and is yo ur decision something that you’ve reached and you believe it is a knowing and voluntary decision?” Id.J-S55030-15

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at 6. Appellant responded, “Yes.” Id. It was not until the hearing on the post-sentence motion to withdraw his guilty plea th at Appellant claimed to have been coerced into accepting the guilty plea. N.T. Post-Sentence Motion Hearing, 3/16/15, at 2. “[O]ne is bound by one’s s tatements made during a plea colloquy, and may not successfully assert clai ms that contradict such

statements.” Muhammad , 794 A.2d at 384. See also Commonwealth v.

Barnes , 687 A.2d 1163, 1167 (Pa. Super. 1996). Additiona lly, Appellant’s former counsel, Attorney Stefanides, stated during the plea proceeding that he believed Appellant’s guilty plea to be a knowing and voluntary decision. N.T. Plea/Sentencing Hearing at 7. The trial court found Attorney Stefanides’ testimony to be credible. TCO at 2 (un paginated). At the hearing on Appellant’s post-sentence motion, Attorney Stefanides further testified that he went over the plea agreement with Appellant line by line, Appellant seemed to underst and the agreement, and Appellant never complained about feeling coerced in to entering the plea agreement. N.T. Post-Sentence Motion Hearing at 23 -24. Moreover, the trial court indicated that during the post-sentence motion hearing, it “did not find [Appellant] to be credible when he testified t hat his counsel and the Commonwealth coerced him into entering a guilty ple a. No mention of said

coercion was made at the time of the Plea Sentencin g proceedings.” TCO at 4 (unpaginated). “On issues of credibility ... an ap pellate court defers to the findings of the trial judge, who has had the opport unity to observe theJ-S55030-15

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proceedings and demeanor of the witnesses.” Commonwealth v. Cunningham , 805 A.2d 566, 572 (Pa. Super. 2002). We disagree with Appellant’s assertion that he suff ered a “manifest injustice” because the trial court prevented him fr om reading his prepared statement in its entirety at the sentencing hearing . As we noted in

Commonwealth v. Jacobs , 900 A.2d 368 (Pa. Super. 2006), “[a]llocution is governed by Pa.R.Crim.P. 704(C)(1), which states : At the time of sentencing, the judge shall afford the defendant th e opportunity to make a

statement in his or her behalf and shall afford cou nsel for both parties the opportunity to present information and argument relative to sentencing .”

Commonwealth v. Jacobs , 900 A.2d at 375. (internal quotations omitted and emphasis added). “The significance of allocuti on lies in its potential to sway the court toward leniency prior to imposition of sentence.” Commonwealth v. Hague , 840 A.2d 1018, 1020 (Pa. Super. 2003). Although Pennsylvania courts have not specifically addressed the limits of the right to allocution, the Third Circuit provi ded the following guidance in

U.S. v. Ward , 732 F.3d 175 (3d. Cir. 2013): Under existing jurisprudence, the defendant’s right of allocution is not unlimited. The sentencing judge has always retained the discretion to place certain restrictions on what ma y be presented during an allocution. ... [A] sentencing judge may im pose procedural limitations during an allocution, so lon g as the judge personally addresses the defendant and offers him t he opportunity to address the court before the sentenc e is pronounced. Id. at 182-183. (internal citations omitted).J-S55030-15

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Here, the trial court did give Appellant the opport unity to read his prepared statement prior to sentencing. See N.T. Plea/Sentencing Hearing at 7. However, Appellant’s statement focused prima rily on a separate prior case and his grievances with the prior judge. Id. at 18-19. The presiding trial court judge interrupted Appellant to explain to him that he was not sentencing him based on what happened in the prior case and that there were other avenues by which he could pursue his cla ims against the prior judge. Id. at 19-21. The court then inquired whether there w as anything Appellant wanted the court to know about himself or whether there were changes he wanted to make in his life that would af fect the court’s determination regarding his sentence. Id. Even after Appellant responded by continuing to reference the prior case, it is cl ear by the following colloquy that the trial court attempted to give Appellant ev ery chance to exercise his right of allocution: THE COURT: ... Just talking about this case, my unde rstanding is you’re satisfied with your plea today in this matte r, you’re satisfied with your attorney in this matter, you un derstand this plea, all of that is true, is that correct? [APPELLANT]: Yes. THE COURT: Is there anything else I should know ab out you, [Appellant], about your life, about what you want t o do with your life that would be important to me in making d ecisions on this case? [APPELLANT]: No, Your Honor. N.T. Plea/Sentencing Hearing at 21-22.J-S55030-15

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After careful review of the record, we conclude tha t Appellant failed to demonstrate that his guilty plea was entered in an involuntary, unknowing, or unintelligent manner. Therefore, he did not est ablish the manifest injustice necessary for the post-sentence withdrawa l of his guilty plea. Accordingly, the trial court did not err in denying Appellant’s motion to withdraw his plea. Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/29/2015