Com. v. Gesuale, J.

• Court: Superior Court of Pennsylvania
• Decided: January 5, 2022
• Docket: 1305 WDA 2020
• Status: Unpublished

Opinion

J-S24004-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : JENNIFER LYNN GESUALE : No. 1305 WDA 2020

Appeal from the Order Entered November 4, 2020 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0004392-2018

BEFORE: DUBOW, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.: FILED: JANUARY 5, 2022

The Commonwealth appeals from the Order granting Appellee Jennifer

Lynn Gesuale’s post-sentence Motion to Withdraw her negotiated guilty plea

to one count of Simple Assault.1 After careful review, we affirm.

We glean the following factual and procedural history from the trial

court’s opinion and the certified record. On September 9, 2018, officers from

the Murrysville Police Department responded to a domestic violence report at

Appellee’s address. When they arrived, Appellee’s husband told them that

Appellee had hit him about his face, scratched him, and choked him during an

argument. The police immediately took Appellee into custody. On December

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* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 2701(a)(1). J-S24004-21

7, 2018, the Commonwealth filed an information charging Appellee with

Simple Assault and Strangulation.2 Appellee was released on an unsecured

bond.

Richard H. Galloway, Esq., entered his appearance as Appellee’s counsel

on December 31, 2018. The court originally set trial for June 2019 but granted

multiple continuances in response to court delays and Appellee’s motions,

eventually scheduling trial for December 2, 2019.

In June 2019, Appellee and her husband appeared in a divorce hearing

under a separate docket. Three months later, during a dispute with court staff

regarding her request for transcripts from the June hearing, Appellee

surreptitiously recorded several telephone conversations with members of the

court staff and posted them on the internet. The court staff discovered the

recordings, and in response, the Commonwealth charged Appellee with

violations of the Wiretap Act under a separate docket.

As a result of the wiretap violations, the court revoked Appellee’s bond

on October 21, 2019, and she returned to jail. In November 2019, the court

granted Attorney Galloway’s Motion to Withdraw, and appointed new counsel,

Emily Smarto, Esq. After the court continued the trial in the instant matter to

February 2020, Appellee filed a motion to reinstate her bond. The court

granted the motion on December 23, 2019, and Appellee was released from

jail. ____________________________________________

2 18 Pa.C.S. §§ 2701(a)(1) and 2718(a)(1), respectively.

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On February 5, 2020, the court continued the case until April due to

court delays, and subsequently continued the case several more times in

response to the Covid-19 judicial emergency. On July 27, 2020, on

Defendant’s motion, the court granted an additional continuance and removed

the case from the trial list to allow for plea negotiations.

At an October 27, 2020 Plea Hearing held by the Hon. Timothy Krieger,

Appellee’s counsel announced that Appellee had agreed to plead guilty to

misdemeanor Simple Assault in exchange for the dismissal of the felony

Strangulation charge and a recommended sentence.3 The Commonwealth

then informed the court that it recommended a term of incarceration of “not

less than 79 days, nor more than 23 months[, with] credit for 79 days

previously served,” and stated that it had “no objection to her being paroled

forthwith[.]” N.T. Plea and Sentencing, 10/27/20, at 2-3.

The court asked Appellee to confirm if the above terms were “what [she

was] promised[,]” and Appellee replied “Yes.” Id. at 4. The court then asked

if there was “[a]nything else promised . . . that wasn’t mentioned today[.]”

3 Appellee also submitted a written, signed colloquy in which she acknowledged that she understood her rights and the potential consequences of the plea. However, the written colloquy itself did not actually contain within it a thorough explanation of the consequences of her plea. Rather, attached to the back of the written colloquy is a standardized form entitled “General Conditions Governing Probation, Parole and Intermediate Punishment.” See attachment to Guilty Plea Petition, dated 10/27/20. Although this form states that “[a]s a part of your negotiated plea agreement, you will be sentenced to a period of supervision,” neither Appellee nor her attorney signed or initialed this attachment. The record from the plea hearing contains no indication that Appellee was aware of this annexed statement. See N.T. Plea, 10/27/20.

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Id. In an extended, rambling reply, Appellee answered that she believed that

the Commonwealth had abandoned an earlier agreement to a global plea

bargain that would have also disposed of her wiretap charges, and described

the terms of yet another abandoned plea deal that her prior counsel had

negotiated with the Commonwealth. Id. at 4-5. Appellee concluded by airing

general frustrations regarding her divorce. Id. at 8-10. In response, the trial

court reviewed the history of the plea negotiations with Appellee’s counsel and

explained to Appellee that her divorce was a separate matter over which it

had no authority.

The court then engaged Appellee in a colloquy to determine whether her

plea was knowing, intelligent, and voluntary. The court explained that the

maximum sentence under the Simple Assault statute was two years

imprisonment and a $5,000 fine. It then explained the elements of the simple

assault offense, and asked Appellee if she understood that charge. Appellee

replied that she did. At no point during the colloquy did the court ask Appellee

to confirm that she understood the possible range of sentences under the plea

or that her sentence could include a period of parole following incarceration.

At the conclusion of this colloquy, the court asked Appellee “are you

pleading guilty?” Id. Appellee replied “I guess that’s my choice today, yes.”

Id. at 11. The court instructed Appellee that she also had the right to plead

not guilty and that the decision was ultimately hers, and asked again if she

chose to plead guilty. This prompted another extended discussion, during

which Appellee expressed ambivalence over whether she should “just take it

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to trial” or whether she should accept the plea so that the matter could “be

over with[.]” Id. at 12-13.

At the close of this exchange, Appellee asked the trial court “[s]o just

go ahead and do it? You think that’s my best interest to?” Id. at 14. The court

explained that it would not answer that question for her, after which she

responded, “that’s fine, yes.” Id. The court then announced that, “based on

your statements . . . I’ll accept your plea as in your best interest.” Id.

The court immediately proceeded to sentencing. It adopted the

Commonwealth’s recommendation and sentenced Appellee to 79 days to 23

months incarceration with credit for time served, and directed that Appellee

be “paroled forthwith[.]” Id. at 14. The court then directed Appellee to meet

with a probation officer, and counsel for both Appellee and the Commonwealth

left the courtroom.4 Soon after leaving, Appellee returned to the courtroom

alone and explained to Judge Krieger that she did not understand that her

sentence would include a period of parole and requested to withdraw her guilty

plea. He advised Appellee to discuss the matter with counsel and, if

appropriate, file a motion to withdraw the plea.

Two days later, on October 29, 2020, Appellee filed a Motion to

Withdraw her guilty plea. In the motion, Appellee averred that “she was

4 Because Appellee’s sentence was less than 24 months, the common pleas court retained the authority to grant parole, and the Westmoreland County Adult Probation and Parole Department, not the Pennsylvania Board of Probation and Parole, was responsible for supervising her parole. 42 Pa.C.S. § 9776(a), Fross v. Cty. of Allegheny, 20 A.3d 1193, 1196 n.3 (Pa. 2011).

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unaware that her sentence included a period of parole” and that, therefore,

“she did not make a knowing, voluntary, or intelligent plea[.]” Motion to

Withdraw Guilty Plea, dated 10/29/20, at ¶¶ 2-3. The court granted the

motion on the same day. Neither the plea withdrawal motion nor the court’s

order appeared on the docket until November 4, 2020.

On November 10, 2020, the Commonwealth filed a Motion for

Reconsideration, noting that it was not aware that any post-sentence motion

to withdraw the plea had been filed until November 4, 2020, after the court

had granted it. In response, the court scheduled a hearing on the

Commonwealth’s motion for November 23, 2020.

At the hearing, Attorney Smarto stated that Appellee had contacted her

“immediately” after the hearing to request to withdraw her plea. N.T.

Reconsideration, 11/23/20, at 4. She also told the court that she believed that

Appellee did not understand that her sentence would include a period of

parole. She explained that when she told Appellee “you’re not getting any

additional time,” Appellee “misconstrued” this to mean that her plea did not

include any additional period of supervision. Id. Appellee herself stated that,

at the time she entered her plea, she believed that her negotiated sentence

did not include any period of supervision following the sentence of time served.

Id. at 8.

Judge Krieger observed that, based on his experience with Appellee, he

understood her to be “generally confused in this courtroom,” and that

Appellee’s testimony at the plea hearing demonstrated that “at the time, she

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wasn’t sure what she wanted to do.” Id. at 5, 15. He also described how

“almost immediately after” the initial hearing, Appellee reentered his

courtroom alone and tried to withdraw her plea after learning that her

sentence included a period of parole. He considered this act to be additional

evidence that she did not understand the terms of her sentence when she

entered her plea. Id. at 5.

At the conclusion of the hearing, the court denied the Motion for

Reconsideration, announcing “that, based on both [Appellee’s] statements

today, based on my recollections, and also the transcript, she was very

undecided about what to do, based on my observation, however, and based

on the fact that she came down almost immediately after, the plea was not

entered knowingly or intelligently at the time.” Id. at 16.

The Commonwealth filed a timely Notice of Appeal. Both the

Commonwealth and the trial court have complied with Pa.R.A.P. 1925.

The Commonwealth presents the following question:

Whether the court below erred in granting Appellee’s post- sentence Motion to Withdraw Guilty Plea where the lower court conducted a proper colloquy, Appellee completed a guilty plea petition with her attorney and Appellee failed to carry her burden to demonstrate prejudice on the order of manifest injustice?

Appellant’s Br. at 5 (unnecessary capitalization omitted).

“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. Kehr, 180 A.3d 754, 757 (Pa. Super. 2018) (citation

omitted). We therefore review a trial court’s decision on a motion to withdraw

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a guilty plea for abuse of discretion. Id. Because “discretionary power can

only exist within the framework of the law,” a trial court must exercise it “on

the foundation of reason, as opposed to prejudice, personal motivations,

caprice or arbitrary action.” Id. (citation omitted). A trial court abuses its

discretion when its decision “represents not merely an error of judgment, but

where the judgment is manifestly unreasonable 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.” Id. (citation omitted). Because we recognize that the trial

court, “[a]s the fact-finder, [is] in the best position to assess the credibility of

the witnesses’ testimony[,]” we “will not reverse a trial court’s credibility

determination absent the court’s abuse of discretion as fact finder.”

Commonwealth v. Moser, 921 A.2d 526, 530 (Pa. Super. 2007).

To prevail in a post-sentence motion to withdraw a guilty plea, a

“defendant must demonstrate that manifest injustice would result if the court

were to deny [the] motion[.]” Kehr, 180 A.3d at 756-57 (citation omitted).

Manifest injustice exists where “the plea was not tendered knowingly,

intelligently, and voluntarily.” Id. at 757 (citation omitted).

Before accepting a plea, the court should conduct on an on-the-record

inquiry to determine whether the defendant understands and voluntarily

accepts the terms of her plea agreement. Pa.R.Crim.P. 590(B)(2). In the

course of the colloquy, the court should, inter alia, inquire into whether the

defendant understands the range of possible sentences for the charges to

which she is pleading guilty. Commonwealth v. Morrison, 878 A.2d 102,

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107 (Pa. Super. 2005). In determining a plea’s validity, the trial court is not

bound to consider only the defendant’s testimony at the colloquy; rather, it

“must examine the totality of circumstances surrounding the plea.” Kehr,

180 A.3d at 757 (citation omitted). This “include[s], but [is] not limited to[,]

transcripts from other proceedings, off-the-record communications with

counsel, and written plea agreements.” Commonwealth v. Fears, 836 A.2d

52, 64 (Pa. 2003).

Pennsylvania law presumes that a defendant who enters a guilty plea is

aware of what she is doing. Commonwealth v. Pollard, 832 A.2d 517, 523

(Pa. Super. 2003). Although a defendant who pleads guilty is bound by the

statements she makes in open court and cannot later assert grounds for

withdrawing the plea that contradict the statements she made at her plea

colloquy, the “law does not establish a per se rule that may be applied rigidly

with no consideration of the nature of the averments made at the guilty plea

colloquy in comparison to the claims raised on appeal.” Id. at 524.

In the instant case, the trial court granted Appellee’s Motion to Withdraw

upon concluding, as a matter of fact, that Appellee did not understand the

terms of her negotiated plea. As it explained in its 1925(a) Opinion, it found

Appellee’s plea not knowing, intelligent, and voluntary because, “although she

expressed that she understood the sentencing aspect of her negotiated plea,

she did not correctly and fully appreciate the meaning of the terms of the

sentence to be imposed by the court.” Trial. Ct. Op. at 6. The court explained

that it based this conclusion on Appellee’s demeanor during the original plea

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hearing and Appellee’s “swift and immediate return to the courtroom after

meeting with her probation/parole officer in order to express her confusion

and to request to withdraw her guilty plea.” Id. Accordingly, “her plea . . .

was not intelligent, knowing, and voluntary and manifest injustice would result

from a denial of [Appellee’s] request to withdraw her plea of guilty.” Id. at

10.

Our review of the record supports the court’s conclusion that Appellee

did not enter her plea knowingly, voluntarily, or intelligently. As the factfinder,

the trial court was permitted to take into account the totality of the

circumstances surrounding the plea, not just Appellee’s sworn testimony

during the plea colloquy, in considering the motion to withdraw. The evidence

presented at both the plea hearing and the reconsideration hearing, including

the trial court’s observation on the record of Appellee’s immediate post-

sentence behavior, supports the court’s finding. See generally N.T. Plea,

10/27/20; N.T. Reconsideration Hearing, 11/23/20, at 16.

The Commonwealth argues that the trial court abused its discretion and

erred as a matter of law by allowing Appellee to withdraw her plea post-

sentence because “Appellee is bound by the statements she made in open

court.” Commonwealth’s Br. at 21. The Commonwealth further asserts that

because Appellee “offered no testimony under oath” at the reconsideration

hearing, “Appellee did not establish that a manifest injustice occurred.” Id. at

21-22, 27. We disagree.

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The Commonwealth essentially asks us to make a de novo factual

determination based on the record. This demonstrates a misunderstanding of

our standard of review set forth above. As we have concluded that there is

support in the record for the trial court’s finding, we may not reweigh the

record evidence to reach a different factual determination. The

Commonwealth’s argument fails to convince us that the trial court abused its

discretion in reaching its conclusion.

A factual finding that a plea was not entered knowingly, voluntarily, and

intelligently means, as a matter of law, that the court’s acceptance of such a

plea is itself a manifest injustice. Kehr, 180 A.3d at 757. Thus, we cannot

agree with the Commonwealth’s contention that the court committed legal

error in allowing Appellee to withdraw her plea.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 01/05/2022

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