J-A08011-13
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
ROBERT LINCOLN
Appellant No. 3632 EDA 2003
Appeal from the Judgment of Sentence October 27, 2003 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP# 0305-0501 1/1
BEFORE: GANTMAN, J., ALLEN, J., and OTT, J.
MEMORANDUM BY GANTMAN, J.: FILED OCTOBER 18, 2017
Appellant, Robert Lincoln, appeals nunc pro tunc from the judgment of
sentence entered in the Philadelphia County Court of Common Pleas, following
his negotiated guilty plea to attempted murder, aggravated assault, and
robbery.1 We affirm.
A prior memorandum decision of this Court sets forth the relevant facts
of this case as follows:
In November, 2002, [A]ppellant savagely beat a woman in whose home he was a guest, stole the proceeds of her social security checks, and left the victim and her two severely retarded children to fend for themselves. Unable to reach his sister by telephone, the victim’s brother came to the victim’s home, discovered her lying in a pool of blood, and her children sitting in a pile of their own feces.
____________________________________________
1 18 Pa.C.S.A. §§ 901 (2501 related), 2702, and 3701, respectively. J-A08011-13
Commonwealth v. Lincoln, No. 2746 EDA 2005, unpublished memorandum
at 1 (Pa.Super. filed June 19, 2006). Appellant provided the Commonwealth
with a signed confession. The victim was hospitalized for a month and
endured seven surgeries including one to treat an open skull fracture and
another for permanent removal of her badly damaged left eye. When the
victim was well enough, she identified Appellant as her assailant. The victim
said Appellant had used his fists and a radio to beat her to near death. A
previous trial court opinion continued as follows:
On October 27, 2003, following a guilty plea colloquy, [Appellant] entered a negotiated plea of guilty to Robbery, Aggravated Assault, and Attempted Murder. This [c]ourt sentenced [Appellant] to sixteen (16) to forty (40) years for Attempted Murder and twenty (20) years[’] probation for Robbery, to be served consecutive to the prison term. The sentence for Aggravated Assault merged with Attempted Murder for sentencing purposes. All other charges were nolle prosequi.
On November 23, 2003, [Appellant] filed a Notice of Appeal. On January 5, 2004, the appeal was withdrawn. On February 6, 2004, [Appellant] filed a Post Conviction Relief Act (“PCRA”) Petition. Counsel was appointed,[2] and on ____________________________________________
2 On May 26, 2005, counsel filed a “no merit” letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988), stating that the issues in Appellant’s pro se PCRA petition were without merit and counsel found no other meritorious issues to raise. In that petition, counsel reviewed and rejected the following claims: (1) whether counsel was ineffective for failing to file a motion to suppress as tainted complainant’s identification that formed the basis for Appellant’s arrest because the detectives investigating the case gave complainant a photo array of extra-large pictures due to complainant’s eye injury; (2) whether counsel was ineffective at the preliminary hearing for failing to file a motion to quash the transcript because complainant did not make an identification at the hearing (Appellant raised
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August 25, 2005, the Petition was dismissed…. On September 9, 2005, [Appellant] filed a pro se Notice of Appeal. On June 19, 2006, the Pennsylvania Superior Court affirmed the [PCRA] court. On July 31, 2006, [Appellant] filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court. On January 4, 2007, the Supreme Court denied [Appellant’s] petition.
(Trial Court Opinion, filed September 25, 2012, at 1). Appellant sought
habeas corpus relief in the federal court. On August 24, 2011, the United
States Court for the Eastern District of Pennsylvania granted Appellant a
conditional writ of habeas corpus, concluding Appellant had been denied
effective assistance of counsel on direct appeal, solely because Appellant’s
counsel had discontinued the direct appeal without consulting Appellant. The
writ stated Appellant would be released from custody unless the state
appellate court reinstated his direct appeal rights nunc pro tunc within 180
days. Nothing in the writ referred to the reinstatement of Appellant’s post-
sentence motion rights, and Appellant did not ask for that relief.
Instead, on October 17, 2011, Appellant filed an application to reinstate
his direct appeal nunc pro tunc, which this Court granted on December 9,
2011. The trial court ordered Appellant on July 10, 2012, to file a statement
of errors complained of on appeal, pursuant to Pa.R.A.P 1925(b); and
this claim notwithstanding the record stipulation, made for purposes of the preliminary hearing only, that Appellant was the person the victim had identified as her assailant, Robert); (3) whether prior counsel was ineffective generally; (4) whether Appellant’s plea was knowing, intelligent, and voluntary; (5) whether prior counsel was ineffective for failing to file a motion to withdraw the guilty plea.
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Appellant complied on August 21, 2012.
In Appellant’s first reinstated direct appeal, we concluded Appellant’s
challenge to the validity of his plea was procedurally waived because he failed
to move to withdraw the plea during the plea process or file a post-sentence
motion to withdraw the plea. See Commonwealth v. Lincoln, 72 A.3d 606
(Pa.Super. 2013), appeal denied, 624 Pa. 688, 87 A.3d 319 (2014). This
Court specifically advised Appellant to file a PCRA petition under the rubric of
ineffective assistance of counsel if he wished to seek a merits review of his
new and more specific issues regarding the validity of his plea. On February
27, 2014, our Supreme Court denied Appellant’s petition for allowance of
appeal.
Instead of filing the PCRA petition as directed, Appellant returned to
federal court, where he argued the district court’s 2011 order had required
this Court to address, on the merits, Appellant’s challenges to the validity of
his guilty plea. The federal district court agreed and, on April 2, 2014, it
entered an order granting Appellant a conditional writ of habeas corpus,
vacating his conviction and sentence, and releasing him from custody, unless
within ninety (90) days of that court’s order, Appellant’s state direct appeal
was again reinstated nunc pro tunc for review on the merits of his specific
claims
On April 4, 2014, Appellant filed with this Court an emergency
application for reinstatement of his second direct appeal nunc pro tunc. The
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Commonwealth opposed Appellant’s application in this Court while the
Commonwealth appealed the federal district court’s April 2, 2014 order to the
Third Circuit Court of Appeals. On June 30, 2014, this Court stayed Appellant’s
application for reinstatement, pending resolution of the federal appeal, and
directed the parties to apprise this Court of the federal appellate court decision
immediately upon its filing. The federal district court’s April 2nd order was also
stayed pending the federal appeal. The Third Circuit Court of Appeals affirmed
the district court’s order on December 12, 2014, and inexplicably directed the
Commonwealth to reinstate Appellant’s second direct appeal nunc pro tunc
by December 25, 2014.3
On December 15, 2014, the Commonwealth withdrew its opposition to
Appellant’s April 4, 2014 emergency application for reinstatement of his
second direct appeal nunc pro tunc. At the Commonwealth’s request, the
Court of Common Pleas reinstated Appellant’s direct appeal rights nunc pro
3 During the second round of federal court proceedings, the case suggests the Commonwealth waived any objection to Appellant’s failure to exhaust state statutory remedies under the PCRA, which he should have done, and as we had instructed, before again going to federal court for habeas corpus relief. See generally 28 U.S.C.A. § 2254 (providing: “(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that─(A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant”). We are, however, unable to confirm any waiver and can only presume it because the federal court accepted and reviewed Appellant’s second application for habeas corpus relief.
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tunc on December 22, 2014. On December 30, 2014, Appellant went back to
federal court demanding release from prison because the Commonwealth had
purportedly failed to reinstate Appellant’s direct appeal in the Superior Court.
Appellant had the duty to move to lift the stay in effect, but this Court lifted
its June 30, 2014 stay on Appellant’s emergency application for reinstatement
of his second direct appeal nunc pro tunc and resuscitated his direct appeal
for disposition on the merits.
Notwithstanding the reinstatement, Appellant yet again sought federal
court relief based on the Commonwealth’s purported non-compliance with the
Third Circuit Court of Appeals’ December 12, 2014 order and this Court’s
purported untimely reinstatement of his direct appeal on January 5, 2015.
The federal district court issued Appellant a writ of execution of habeas corpus
on March 23, 2015, mandating Appellant’s release, but stayed the writ
indefinitely until the Third Circuit Court of Appeals decided whether its
December 12, 2014 mandate superseded this Court’s June 30, 2014 stay
order.
On January 6, 2016, the Third Circuit Court of Appeals vacated the
federal district court’s March 23, 2015 writ of execution, which had been
stayed pending the federal appeal, and the case was returned to this Court
for direct appellate review on the merits. Meanwhile, pursuant to this Court’s
order, the Commonwealth filed a substituted brief to address Appellant’s
claims on the merits; Appellant subsequently filed a reply brief.
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As a significant prefatory matter, a substantial delay has occurred in the
resolution of this appeal, largely due to Appellant’s numerous federal court
petitions and counsel’s dissatisfaction with state process, as well as an
incomplete certified record. We observe that Appellant’s counsel is
responsible to review the certified record on appeal, to identify and obtain any
missing documents, and to provide the appellate court with a complete
certified record. See, e.g., Commonwealth v. Bongiorno, 905 A.2d 998
(Pa.Super. 2006) (en banc), appeal denied, 591 Pa. 688, 917 A.2d 844 (2007)
(stating: Pennsylvania “law is unequivocal that the responsibility rests upon
the appellant to ensure that the record certified on appeal is complete in the
sense that it contains all of the materials necessary for the reviewing court to
perform its duty. … Under [Pa.R.A.P.] 1926, an appellate court may direct
that an omission or misstatement shall be corrected through the filing of a
supplemental certified record. However, this does not alter the fact that the
ultimate responsibility of ensuring that the transmitted record is complete
rests squarely upon the appellant and not upon the appellate courts”). Yet,
despite this Court’s orders, and other informal requests to Appellant’s present
and prior counsel, and the trial court, Appellant’s current counsel declined to
take the matter seriously or show any initiative to locate and provide us with
a certified copy of Appellant’s written plea colloquy. Instead, counsel simply
denied “possession” of the document and declined to cooperate, as if our
orders and inquiries were just invitations. At this point, therefore, we will
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proceed without the written colloquy.4
Appellant raises three substantive claims for our review:
DID THE TRIAL COURT ERR WHEN, DURING THE PLEA COLLOQUY, IT MISINFORMED [APPELLANT] OF THE CORRECT MAXIMUM SENTENCE FOR THE OFFENSES HE FACED, OVERSTATING THE MAXIMUM BY 20 YEARS, THEREBY VIOLATING PENNSYLVANIA RULE OF CRIMINAL PROCEDURE 590 AND THE UNITED STATES CONSTITUTION AND CAUSING THE PLEA TO HAVE BEEN MADE UNKNOWINGLY AND INVOLUNTARILY IN VIOLATION OF THAT RULE AND THE CONSTITUTION?
DID THE TRIAL COURT ERR WHEN IT ENTERED A GUILTY PLEA ON THE CHARGES OF ATTEMPTED MURDER, DESPITE (I) [APPELLANT’S] DENIAL OF A FACT CRUCIAL TO ONE OF THE NECESSARY ELEMENTS OF THE OFFENSE AND (II) THE SUBMISSION OF FACTS ESTABLISHING AN AFFIRMATIVE DEFENSE TO THAT OFFENSE, THEREBY VIOLATING PENNSYLVANIA RULE OF CRIMINAL PROCEDURE 590 AND THE UNITED STATES CONSTITUTION AND CAUSING THE PLEA TO HAVE BEEN MADE UNKNOWINGLY AND INVOLUNTARILY IN VIOLATION OF THAT RULE AND THE CONSTITUTION?
DID THE TRIAL COURT ERR WHEN IT ENTERED A GUILTY PLEA WITHOUT INFORMING [APPELLANT] OF THE ELEMENTS OF THE OFFENSES OR OTHERWISE ENSURING THAT [APPELLANT] WAS SUFFICIENTLY AWARE OF THE NATURE OF THE OFFENSES, THEREBY VIOLATING PENNSYLVANIA RULE OF CRIMINAL PROCEDURE 590 AND THE UNITED STATES CONSTITUTION AND CAUSING THE PLEA TO HAVE BEEN MADE UNKNOWINGLY AND INVOLUNTARILY IN VIOLATION OF THAT RULE AND THE CONSTITUTION?
(Appellant’s Brief at 4).
4Any waiver that could result on this basis would fall squarely on Appellant’s current counsel for failure to comply with this Court’s directives.
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We outline Appellant’s issues together because they challenge the
validity of his guilty plea. Appellant’s principal complaint is that the trial court,
during the plea hearing, “repeatedly” misstated the potential maximum
sentence Appellant was facing as a total maximum sentence of eighty-five
(85) years’ incarceration. Appellant claims the court essentially “threatened”
him with a de facto life sentence, under the court’s mistaken belief that the
offenses of aggravated assault and attempted murder could support
consecutive sentences. Appellant complains the court failed to consider the
merger of aggravated assault and attempted murder, which actually made the
maximum possible sentence only sixty-five (65) years’ incarceration.
Appellant asserts the court did nothing to inform him of the correct maximum
sentence before his plea or confirm Appellant wanted to proceed with the plea
before sentencing in light of the corrected maximum stated during sentencing.
Appellant insists this error so “tainted” his plea process that he should be
permitted to withdraw his plea.
Next, Appellant says that, even if the court had correctly informed him
of the true possible maximum sentence, the court erred in two other important
respects, which also call the validity of the plea into question. First, Appellant
contends the court failed to verify a proper factual basis for the charge of
attempted murder. Appellant insists he had to admit he used the radio to
strike the victim in order to plead guilty to attempted murder; but at the guilty
plea hearing, he denied using the radio to beat the victim; Appellant claims
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his denial of this fact defeats any specific intent to kill. Appellant submits the
stipulated facts established only that Appellant struck the victim because she
had assaulted him, which represents a foundation for attempted manslaughter
only. Appellant complains the court should have rejected his plea to
attempted murder because the plea lacked a stipulated factual basis and
instead raised an affirmative defense.
Under the second alternative basis, Appellant asserts his guilty plea was
unknowing, unintelligent, and involuntary because the trial court did not
describe the elements of attempted murder and robbery. Appellant claims the
court could have, but did not: (1) state on the record the elements of the
offenses or (2) ensure by a totality of the circumstances that Appellant
understood those elements. Appellant concludes these claims individually and
collectively demonstrate such a manifest injustice that he should be allowed
to withdraw his plea and have the judgment of sentence vacated.
In response, the Commonwealth asserts Appellant’s particular
challenges to his oral plea colloquy warrant no relief because: (1) repeated
previous holdings in his case have declared his guilty plea was knowing,
intelligent, and voluntary; (2) the trial court’s failure to discuss the merger of
the offenses of aggravated assault and attempted murder for sentencing
purposes was unnecessary because the court was not required to “discuss”
the merger doctrine after accurately stating the “potential” statutory
maximum penalties for the offenses and, more importantly, the court did
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review merger before concluding the plea hearing and sentencing; (3)
Appellant did not dispute that he attacked the victim, there was evidence to
submit to a jury that Appellant did use a radio as a weapon, and there was
ample additional record evidence to support the charges, even without using
a weapon; (4) the court’s failure to list the elements of the offenses during
Appellant’s oral colloquy is mollified under the totality of the circumstances by
the use of a written guilty plea colloquy; (5) the most relief Appellant could
permissibly obtain would be a remand to develop the record on the
voluntariness of his plea. The Commonwealth submits the ultimate question
before this Court is whether, under the totality of the circumstances, Appellant
entered a valid and enforceable plea. The Commonwealth notes that, absent
evidence of the content of Appellant’s written guilty plea colloquy, discussions
with counsel, and other independent details, none of which Appellant has
provided, this Court has no reason to vacate Appellant’s judgment of
sentence. We agree with the Commonwealth’s contentions.
Appellate review in this case implicates the following legal principles.
When a defendant enters a guilty plea, he waives the right to “challenge on
appeal all non-jurisdictional defects except the legality of [the] sentence and
the validity of [the] plea.” Commonwealth v. Luketic, 162 A.3d 1149, 1159
(Pa.Super. 2017). A valid guilty plea must be knowingly, voluntarily and
intelligently entered. Commonwealth v. Pollard, 832 A.2d 517, 522
(Pa.Super. 2003). The Pennsylvania Rules of Criminal Procedure mandate
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that pleas be taken in open court and require the court to conduct an on-the-
record colloquy to ascertain whether a defendant is aware of his rights and
the consequences of his plea. Commonwealth v. Hodges, 789 A.2d 764
(Pa.Super. 2002) (citing Pa.R.Crim.P. 590). Specifically, the court must
confirm the defendant understands: (1) the nature of the charges to which he
is pleading guilty; (2) the factual basis for the plea; (3) his right to trial by
jury; (4) the presumption of innocence; (5) the permissible ranges of
sentences and fines possible; and (6) the judge is not bound by the terms of
the agreement unless he accepts the agreement. See Pa.R.Crim.P. 590
Comment; Commonwealth v. Watson, 835 A.2d 786 (Pa.Super. 2003).
Pennsylvania law presumes a defendant who entered a guilty plea was
aware of what he was doing, and the defendant bears the burden of proving
otherwise. Pollard, supra at 523. Regardless of the reason for entering a
guilty plea, 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. “[A] defendant who attempts to withdraw a guilty plea after
sentencing must demonstrate prejudice on the order of manifest injustice
before withdrawal is justified.” Commonwealth v. Pantalion, 957 A.2d
1267, 1271 (Pa.Super. 2008). “A plea rises to the level of manifest injustice
when it was entered into involuntarily, unknowingly, or unintelligently.” Id.
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(quoting Commonwealth v. Muhammad, 794 A.2d 378, 383 (Pa.Super.
2002)).
On appeal, this Court evaluates the adequacy of the plea colloquy and
the voluntariness of the resulting plea by looking at the totality of the
circumstances surrounding the entry of the plea. Id. at 383-84. Even with
omissions or defects in the oral guilty plea colloquy, a guilty plea will be
deemed valid if the totality of the circumstances surrounding the plea shows
the defendant had a full understanding of the nature and consequences of his
plea and entered the plea of his own accord. Commonwealth v. Fluharty,
632 A.2d 312, 315 (Pa.Super. 1993). Historically, the term “totality of the
circumstances” includes consideration of attendant circumstances and does
not focus solely on direct instruction by the court. Commonwealth v.
Anthony, 504 Pa. 551, 475 A.2d 1303 (1984). A defendant’s knowledge and
understanding of the charges against him are not tested solely by reference
to the on-the-record plea colloquy. Commonwealth v. Schultz, 505 Pa.
188, 192, 477 A.2d 1328, 1330 (1984) (recognizing abrogation of per se
approach to analyzing validity of guilty plea by limiting review solely to oral
plea colloquy). See also Commonwealth v. Eichinger, 631 Pa. 138, 155-
56, 108 A.3d 821, 832 (2014) (quoting Commonwealth v. Yeomans, 24
A.3d 1044, 1047 (Pa.Super. 2011)) (stating: “Even though there is an
omission or defect in the guilty plea colloquy, a plea of guilty will not be
deemed invalid if the circumstances surrounding the entry of the plea disclose
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that the defendant had a full understanding of the nature and consequences
of his plea and that he knowingly and voluntarily decided to enter the plea”).
Under Pennsylvania law, the reviewing court is free to consider a wide array
of relevant evidence in addition to the transcript of the actual plea colloquy,
under the totality-of-the-circumstances standard, to determine the validity of
a claim and plea agreement including, but not limited to, transcripts from
other proceedings, off-the-record communications with counsel, and written
plea agreements. Commonwealth v. Allen, 557 Pa. 135, 147, 732 A.2d
582, 589 (1999). See, e.g., Fluharty, supra (allowing reference to affidavit
of probable cause as substitute for formal recitation of factual basis for plea).
With regard to the trial court’s overstating the potential maximum
sentence during the guilty plea process, we observe:
Under certain circumstances, a defendant who enters a guilty plea after the court communicates an incorrect maximum sentence may be considered to have entered [his] plea unknowingly and involuntarily. Commonwealth v. Lenhoff, 796 A.2d 338 (Pa.Super. 2002). However, “every mistake in computing the possible maximum or advising the defendant of the possible maximum will [not] amount to manifest injustice justifying the withdrawal of a guilty plea; the mistake must be material to the defendant’s decision to plead guilty.” Commonwealth v. Barbosa, 819 A.2d 81, 83 (Pa.Super. 2003).
Commonwealth v. Pantalion, 957 A.2d 1267, 1271-72 (Pa.Super. 2008)
(emphasis added). As this Court explained in Barbosa:
This determination [of materiality] must be fact- and case- specific. Certainly, if a defendant were to plead guilty to avoid a death sentence when there is no possibility of a death sentence, then this mistake would clearly be material.
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On the other hand, suppose…the defendant [was] told that he faced a maximum sentence of 70 to 140 years rather than 65 to 130 years. If the plea negotiations resulted in a sentence of 5 to 10 years, then this mistake would not be material.
Barbosa, supra at 83 (citing these extreme examples for comparison). For
example, if a defendant enters a guilty plea and justifiably believes the
maximum sentence is actually less than what he could legally receive, he may
not withdraw that plea unless he receives a sentence greater than what he
was told. Commonwealth v. Warren, 84 A.3d 1092, 1096 (Pa.Super. 2014)
(quoting Barbosa, supra at 82). See also Commonwealth v. Carter, 540
Pa. 135, 142, 656 A.2d 463, 466 (1995) (holding defendant facing multiple
burglary and related offenses could not undo his plea, even though he did not
know court could impose consecutive sentences, where defendant’s aggregate
sentence was less than maximum sentence he could have legally received on
single burglary count; defendant was not sentenced to term that exceeded his
expectations). On the other hand, we have directed the withdrawal of pleas
if the defendant was justifiably unaware of or misled about the “compared to
what” of the maximum sentence. Barbosa, supra at 83. See
Commonwealth v. Persinger, 532 Pa. 317, 615 A.2d 1305 (1992) (holding
where defendant was informed of maximum sentence on each count but was
not informed that his sentences could be imposed consecutively, and he
received a sentence that was legal but higher than he thought possible,
defendant was entitled to withdraw his plea); Lenhoff, supra (vacating guilty
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plea, where defendant entered plea to avoid sentence for second degree
felony as charged, but his offense should have been graded as third degree
felony; plea negotiations were deemed fatally flawed); Hodges, supra
(holding where double murder defendant was fifteen years old at time of
offenses and entered guilty plea specifically to avoid death penalty, but death
penalty could not be legally imposed, defendant’s plea was tainted and
constituted manifest injustice). Significantly, these cases have one common,
unmistakable theme, i.e., they all depended on the specific facts and
circumstances of the case and definitely were not subject to a “per se”
manifest injustice analysis. See id.
Regarding the factual basis for a guilty plea, “before accepting a plea of
guilty, the trial court must satisfy itself that there is a factual basis for the
plea.” Fluharty, supra (quoting Commonwealth v. Maddox, 450 Pa. 406,
409-10, 300 A.2d 503, 505 (1973)). The factual-basis requirement, however,
does not mean the defendant must admit every element of his crimes.
Fluharty, supra.
In this respect, the United States Supreme Court has held:
[W]hile most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.
Nor can we perceive any material difference between
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a plea that refuses to admit commission of the criminal act and a plea containing a protestation of innocence when, as in the instant case, a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt.
North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 167, 27 L.Ed.2d 162, 171 (1970). See Commonwealth v. Cottrell, 433 Pa. 177, 179, 249 A.2d 294, 295 (1969) (“[W]here there is significant evidence of guilt…and the accused, after adequate consultation with his counsel, decides to plead guilty, that plea is not rendered invalid merely because the accused is unable or unwilling to detail the occurrence in court”).
It would appear, therefore, that a defendant may knowingly and voluntarily enter a guilty plea as a matter of strategy or expedience even though he…is unable or unwilling to admit guilt. Nevertheless, the Pennsylvania Supreme Court has observed that if a defendant pleads guilty to a criminal charge, and in the next breath contravenes the plea by asserting facts which, if true, would establish that he is not guilty, then his guilty plea is of no effect and should be rejected.
* * * Thus,
when a guilty plea is accompanied by the assertion of facts which make out a defense to the crimes charged, the plea may not be accepted unless the discrepancy is resolved. The defendant must be aware, and the record must show that he is aware, that his defense cannot be considered when he enters a guilty plea. The record must affirmatively demonstrate that he knows that by pleading guilty he waives the opportunity to assert facts which may establish the defense.
Fluharty, supra at 315-16 (internal citations omitted) (emphasis added).
Likewise, “There simply is no legal requirement that a factual basis be
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separately admitted after its recitation for entry of a valid guilty plea. The
guilty plea proceeding is the process by which the defendant admits that he
committed the actions outlined in the factual basis for the plea. Appellant
entered a guilty plea; ipso facto, he admitted to the details of the crimes
outlined in the factual basis.” Commonwealth v. Morrison, 878 A.2d 102,
106 (Pa.Super. 2005), appeal denied, 585 Pa. 688, 887 A.2d 1241 (2005).
Further, the factual discrepancy asserted must involve a complete defense to
the charge and, if true, establish that the defendant is not guilty.
Commonwealth v. Sampson, 445 Pa. 558, 285 A.2d 480 (1971). A possible
mitigating factor is not a complete defense for purposes of rendering a guilty
plea invalid. Id. The discrepancy must involve sufficient exculpatory evidence
to vitiate the plea. Id.
Regarding the elements of the crimes and nature of the offenses in the
context of a guilty plea, where ample, competent evidence supports a guilty
plea, allegations of manifest injustice arising from the guilty plea must go
beyond a mere claim of lack of technical recitation of the legal elements of the
crimes. Commonwealth v. Martinez, 499 Pa. 417, 453 A.2d 940 (1982).
“Even if the guilty plea colloquy lacks an explanation of the elements of the
crime[s] charged, no manifest injustice occurs if the circumstances
surrounding the entry of the plea indicate that the defendant understood the
nature of the charge[s] against him.” Commonwealth v. Schultz, 505 Pa.
188, 192, 477 A.2d 1328, 1330 (1984). Absent an assertion that the
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defendant did not actually understand the nature of the offenses charged, we
can presume the defendant had notice of the crimes in sufficient detail to
support the guilty plea. Martinez, supra at 556-57, 475 A.2d at 1306. Thus,
no “ritualistic litany of the formal legal elements” of the offense is required to
be read to the defendant at the hearing. Id.
A guilty plea is an acknowledgement by a defendant that he participated in the commission of certain acts with a criminal intent. He acknowledges the existence of the facts and the intent. The facts that he acknowledges may or may not be within the powers of the Commonwealth to prove. However, the plea of guilt admits that the facts and intent occurred, and is a confession not only of what the Commonwealth might prove, but also as to what the defendant knows to have happened.
A defendant may plead guilty for any reason: to shield others, avoid further exposure, to diminish the penalty, to be done with the matter, or any secret reason that appeals to his needs. What is generally and most objectively accepted is that a plea is offered to relieve conscience, to set the record straight and, as earnest of error and repentance, to accept the penalty.
Id. at 557-58, 475 A.2d at 1307. Moreover,
A guilty plea is not a ceremony of innocence, it is an occasion where one offers a confession of guilt. If a defendant voluntarily, knowingly, and intelligently wishes to acknowledge facts that in themselves constitute an offense, that acknowledgement is independent of the procedures of proving or refuting them. How they would be proved, what burdens accompany their proof, what privileges exist to avoid their proof, what safeguards exist to determine their accuracy, and under what rules they would be determined, by whom and how, are irrelevant. The defendant is before the court to acknowledge facts that he is instructed constitute a crime. He is not there to gauge the likelihood of their proof [or] to weigh them in the light of the available procedures for their proof. He is there to voluntarily say
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what he knows occurred, whether the Commonwealth would prove them or not, and that he will accept their legal meaning and their legal consequence.
Id. at 559, 475 A.2d at 1307-08.
As a whole, the plea-bargaining process is a significant part of the
criminal justice system; concerning 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.
Commonwealth v. Byrne, 833 A.2d 729, 735 (Pa.Super. 2003) (some
internal citations omitted). To allow an appellant to avoid his sentence after
he entered into a negotiated plea “would undermine the designs and goals of
plea bargaining” and “make a sham of the negotiated plea process.” Id.
(quoting Reichle, supra).
Instantly, Appellant entered a negotiated guilty plea for his involvement
in the brutal assault of the victim. Appellant failed to object to the validity of
his plea during the plea colloquy or file a post-sentence motion to withdraw
his plea. When Appellant sought habeas corpus relief in federal court, the
district court deemed defense counsel ineffective because counsel had failed
to consult Appellant before discontinuing his first direct appeal; and the federal
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court restored those direct appeal rights solely on that basis.
In his initial reinstated direct appeal, Appellant raised for the first time,
in his Rule 1925(b) statement, his complaint about the trial court’s
miscommunication of the possible maximum sentence and argued that
position in his reinstated direct appeal. The Commonwealth objected to
Appellant’s contention on the ground that he had waived his right to an
appellate decision on the merits for failure to follow proper state procedure,
i.e., objecting to the plea during the colloquy or filing a post-sentence motion
to withdraw the plea. When this Court held Appellant’s claims were
procedurally waived, we made clear that his current counsel should seek
merits review by filing a PCRA petition and arguing the issue under the rubric
of ineffective assistance of counsel. See Commonwealth v. Lincoln, 72
A.3d 606, 611 (Pa.Super. 2013).
Rather than follow this Court’s express directive, Appellant’s counsel
went instead straight back to federal court, seeking relief in the form of
reinstatement of Appellant’s direct appeal rights for the second time in order
to have his state-court claim addressed directly on the merits. This
fundamentally erroneous but strategic move cost Appellant over a year in
additional federal judicial review.5
5No doubt Appellant already enjoyed a sympathetic rapport with the federal court. On the other hand, if Appellant had observed this Court’s directive in 2013, then his claim(s) would have been addressed readily, albeit subject to
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Nevertheless, after a long delay largely of Appellant’s counsel’s making,
on January 5, 2015, this Court lifted the June 30, 2014 stay on Appellant’s
emergency application to reinstate his direct appeal nunc pro tunc for the
second time and reinstated his direct appeal on the merits. More delay ensued
due to Appellant’s dissatisfaction with the timing and manner in which his
appeal was reinstated, which complaints he again took to federal court. Upon
his return from federal court, we sought to complete the record for review,
but without any cooperation from Appellant’s counsel or success.
With respect to Appellant’s claim that his plea was tainted because the
court misstated the maximum sentence, Appellant’s oral plea colloquy and
sentencing transcript demonstrates: (1) the court did misstate the maximum
penalty when it said it could impose a total maximum sentence of eighty-five
(85) years’ incarceration, because the maximum sentence available in this
case was sixty-five (65) years’ incarceration; but (2) the court’s
a more rigorous examination under the three-pronged PCRA test for ineffective assistance of counsel. In essence, Appellant failed to exhaust his state remedies before he returned to the federal court for additional relief. Because Appellant was required to pursue PCRA review before heading to federal court, habeas relief probably should not have been extended to him at that time. Instead, the federal court should have dismissed his habeas corpus petition due to the availability of state corrective remedies. See generally 28 U.S.C.A. § 2254; Commonwealth v. Lambert, 765 A.2d 306 (Pa.Super. 2000). In any event, Appellant successfully did an end run around his state PCRA remedies, skirted the enhanced review required under the PCRA, and had the federal court order the second reinstatement of his direct appeal, this time clarifying that the state court must review Appellant’s claims on the merits.
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misstatements were eventually corrected and plainly immaterial to Appellant’s
plea.
Specifically, when Appellant initially came into court for the plea colloquy
and sentencing, which occurred at the same hearing, the court began by
outlining the maximum sentence for each principle offense charged: robbery,
aggravated assault, attempted murder, theft, and possession of an instrument
of a crime. In adding up the potential maximum sentences, the court
misstated the aggregate maximum sentence as eighty-five years, without
consideration of the merger of aggravated assault and attempted murder. The
court also reviewed Appellant’s statement admitting he did repeatedly hit the
victim and took money from her social security check. (See N.T., Oral Plea
Colloquy and Sentencing, 10/27/03, at 2-4.) Nevertheless, the transcript
makes very clear Appellant came into court already armed with the
Commonwealth’s offer of a sentence of twenty to forty years, which the court
right away acknowledged. (Id. at 4-7.) Appellant was permitted to consult
with his attorney at this point. After consultation, Appellant’s attorney relayed
something to the Commonwealth off the record, and the Commonwealth
agreed to amend its sentence offer to two options: (a) sixteen to forty years
or (b) seventeen and one half to thirty-five years, either one followed by a
term of probation for the court to decide, in exchange for a guilty plea to the
four charges of robbery, aggravated assault, attempted murder, and
possession of an instrument of crime. (Id. at 7.) Appellant offered to plead
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guilty to robbery and aggravated assault in return for sixteen to forty years.
(Id. at 8.) The plea colloquy continued, during which the court confirmed
Appellant’s understanding that he was waving his rights to a jury trial and the
presumption of innocence as well as his rights to pretrial motions and a speedy
trial. (Id. at 9-12.) The court also made sure Appellant understood the few
limited rights he would retain for appellate review, and Appellant affirmed he
was satisfied with his attorney’s representation. (Id. at 13-14.)
The Commonwealth then proceeded with a detailed summary of the
facts of the case, including the extent of the victim’s injuries and surgeries,
Appellant’s statement of provocation and how he hit the victim, and the
potential trial testimony of witnesses. (Id. at 14-20.) The court then asked
Appellant if he wanted to add, subtract, or change anything in the factual
recitation. (Id. at 20.) In that exchange, the court confirmed Appellant’s
agreement to the facts that Appellant hit the victim in the face a lot and took
her money. Appellant disputed the use of the radio. (Id. at 21-23.)
Ultimately, Appellant agreed to plead guilty to the three charges of
robbery, aggravated assault, and attempted murder only. (Id. at 24-25).
Before the court formally imposed the sentence, there was a sidebar off the
record, and the court stated:
[Court]: Okay, I had given you the sentence wrong. On 0305-501 charging you with attempted murder, I’m going to impose the recommended sentence of not less than 16, [or] more than 40 years in a state correctional institution.
Aggravated assault will merge, and on robbery I’m going to
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sentence you to 20 years[’] probation and that will be consecutive to that for the attempted murder charge. Your effective sentence here today is not less than 16 nor more than 40 years to be followed by 20 years’ probation. …
(Id. at 27). Appellant’s counsel apprised Appellant of his appellate rights on
the record, (id. at 28), and the proceedings ended by agreement and without
additions or objection.
When read in context, the plea/sentencing transcript demonstrates
Appellant came into the plea/sentencing proceedings with a deal in place.
Appellant fully participated in the proceedings and artfully reduced the charges
he pled to and renegotiated his original sentence deal from twenty to forty
years to sixteen to forty years, rejecting the other offer of seventeen and one
half to thirty-five years. The record shows Appellant’s focus on the lowest
possible minimum sentence dominated his plea bargaining. The transcript
also indicates the existence of a written plea colloquy, which is not in the
certified record. Following this Court’s orders and inquiries, current counsel
simply denied responsibility for procuring it without showing any effort to
obtain it. See Bongiorno, supra. The only inference we can draw from
counsel’s dismissive response is that the written colloquy would not have
actively supported Appellant’s contentions. Further, Appellant’s chosen
sentence was significantly less than the maximum possible sentence allowable
by law. See Warren, supra; Carter, supra. Therefore, we conclude the
court’s misstatements about the maximum sentence, which the court
corrected, were immaterial to Appellant’s guilty plea and did not render it
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unknowing, involuntary, or unintelligent. See Barbosa, supra.
In its opinion, the trial court addressed Appellant’s other complaints
concerning the factual basis for the plea, the elements of the crimes and the
nature of the offenses as follows:
[Appellant contends] that he should not have been able to enter a guilty plea on the charge of attempted murder because the issue as to whether he struck the victim with a radio was in dispute. Regardless [of] whether [Appellant] used a radio, he pled guilty after the District Attorney stated that she would present the following evidence, had there been a trial:
[A]t which point he flipped out. He then admits—he said, did you hit her? Yes. How many times? I don’t know. Was it a lot? Probably. Where did you hit her? In the face. What did you hit her with? My hands. … Your Honor, the victim would testify that she was not hit with just hands. She was also hit with a radio. That radio was confiscated and submitted to the police lab where a reddish-brown stain was on the back, along with droplets on the bottom edge, [the] top of the radio [was also] tested and tested positive for blood and human protein.
Given this recitation of the evidence as it would be presented to a jury, [Appellant] still opted to plead guilty. He did not agree that he utilized a radio in the commission of this crime, but this is not a necessary element of the crime of attempted murder. Under Pennsylvania law, a person “commits an attempt when, with the intent to commit a specific crime, he does any act which constitutes a substantial step towards the commission of the crime.” [18] Pa.C.S.A § 901(a). If a person takes a substantial step toward the commission of a killing, with the specific intent in mind to commit such an act, he may be convicted of attempted murder. Commonwealth v. Dale, 836 A.2d 150, 15[3] (Pa.Super. 2003). Nowhere in our crimes code does it mandate that, to be convicted of any degree of murder, a[n appellant] must use a weapon besides his own hands. This [c]ourt is unable to see how the issue of
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whether [Appellant] used the radio has any bearing on whether he attempted to kill his victim.
[Appellant] also contends that he submitted several facts which would have established an affirmative defense of “heat of passion.” This claim should likewise fail, as a negotiated plea deal is no place for an affirmative defense. A negotiated plea deal is just that—an agreement to a specific sentence based on [Appellant’s] agreeing to the facts as the prosecution lays them out. If [Appellant] did not agree to these facts, he was not required to accept the deal. He could have gone to trial and presented any evidence that he had which might [have] allow[ed] for a “heat of passion” defense. At that point, a jury would have determined whether he committed these crimes. Instead, however, he opted to accept the deal offered by the prosecution, which, in exchange for a shorter sentence, limited his trial rights. Further, this issue is not ripe for appeal as there is no place in the transcript which indicates that [Appellant] attempted to even raise this issue [before] this [c]ourt.
* * *
[Appellant] alleges that this [c]ourt erred when it did not list the elements of each offense or otherwise ensure that [Appellant] knew of the elements of each offense. There is likewise no merit to this claim. This [c]ourt ensured that [Appellant] knowingly, voluntarily, and intelligently waived his rights to a jury trial and pled guilty to the charges as they were presented to [him]. Specifically spelling out the elements of each crime is not necessary where it is clear that the [c]ourt explained the nature of the charges during the colloquy. …
It is clear from the transcript that [Appellant] was made aware of the nature of the charges against him, even if he was not clear on the specific elements of each charge. This [c]ourt meticulously confirmed that he knowingly, voluntarily, and intelligently pled guilty after the entire colloquy was completed, and this [c]ourt properly accepted that plea.
(Trial Court Opinion, filed September 25, 2012, at 3-5). The record supports
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the court’s analysis. See Muhammad, supra. Here, Appellant actively
participated in the plea-bargaining process which continued throughout the
plea proceedings, and he failed to raise a complete affirmative defense or
exculpatory matters which could call the validity of his plea into question. See
Sampson, supra (stating existence of possible mitigating factor is not
complete defense for purposes of rendering guilty plea invalid; claimed
discrepancy must involve sufficient exculpatory evidence to vitiate plea
completely).
Additionally, in preparation for his plea, Appellant had for his
information, inter alia, the criminal complaint and other charging documents
listing the elements of the offenses, the witnesses’ statements, the victim’s
medical records, and the preliminary hearing testimony. Thus, Appellant was
fully informed of the nature and elements of his offenses. See Schultz,
supra; Martinez, supra. Under the circumstances disclosed in the record as
provided, Appellant understood the factual predicate for his plea and the
nature of the offenses and charges against him. Thus, no “manifest injustice”
occurred on these grounds. Based upon the foregoing, we conclude
Appellant’s claims are insufficient to merit relief.6 Accordingly, we affirm.
Judgment of sentence affirmed. Judge Allen did not participate in the consideration or decision of this case. ____________________________________________
6 Even if Appellant’s claims had any merit, the proper relief would be to allow him to withdraw his guilty plea; he would not be entitled to release from custody.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/18/2017
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