Com. v. Martin

• Decision Date: 22 June 1992
• Citation: 416 Pa.Super. 507,611 A.2d 731
• Parties: COMMONWEALTH of Pennsylvania v. James Alexander MARTIN, Jr., Appellant.
• Court: Pennsylvania Superior Court

Page 731

611 A.2d 731

416 Pa.Super. 507

COMMONWEALTH of Pennsylvania v. James Alexander MARTIN, Jr., Appellant.

Superior Court of Pennsylvania.

Submitted Nov. 25, 1991.

Filed June 22, 1992.

Steven B. Molder, Easton, for appellant.

Donald B. Corriere, Dist. Atty., Bethlehem, for Com., appellee.

Before OLSZEWSKI, KELLY and BROSKY, JJ.

OLSZEWSKI, Judge:

James Martin appeals the judgment of sentence for rape and simple assault, imposed on June 14, 1991, by the Court of Common Pleas of Northampton County. Appellant's conviction arose out of an incident which occurred May 17, 1990. Appellant lured his female victim to a secluded area, under the guise that appellant needed a ride to pick up his car in that area. When she sensed danger and attempted to flee, appellant forcibly detained the victim and raped her at knife point. Subsequent to the rape, appellant tied the victim's hands and feet together and pushed her over an embankment, into a creek. Appellant then fled. The victim was eventually able to free herself, went to a nearby home, and phoned the police.

On March 22, 1991, appellant appeared before the Court of Common Pleas of Northampton County, the Honorable Robert Freedberg presiding. Appellant, with counsel, entered a plea of guilty to simple assault and rape. ¹ Sentencing was deferred pending preparation of a pre-sentence investigation. On June 14, after reviewing the pre-sentence report and making it available for review by appellant and his counsel, the court sentenced appellant outside the sentencing guidelines, to a term of ten-to-twenty years imprisonment for the rape, and a consecutive term of one-to-two years for the simple assault. On June 24, 1991, appellant filed a motion for withdrawal of his guilty plea, claiming it was entered involuntarily. Appellant claimed that he was not aware of the factors which could (and did) take his case out of the sentencing guidelines, and that a manifest injustice would result if he could not withdraw his plea. On July 1, 1991, the motion to withdraw the plea and a motion to reconsider sentence were both denied. This appeal followed.

In the instant case, appellant presents four instances of trial court error:

1. that his guilty plea was not entered voluntarily;

2. that appellant's sentence is illegal because the simple assault charge merges with the rape charge;

3. that the court erred by issuing a sentence outside the sentencing guidelines, without sufficient basis or foundation;

4. that appellant's sentence was excessive.

Finding no merit to these allegations of error, we affirm the judgment of sentence.

First, appellant posits that his guilty plea was not entered voluntarily. Appellant argues that if he had known that the sentencing judge was able to, and intent on, sentencing outside the guidelines, he would not have entered his plea. Appellant contends that the sentencing judge ignored the pre-sentence report, and that the judge was required to make more than a "passing reference" to the mere advisory nature of the guidelines. Appellant's argument is misguided. We have noted that a "misplaced hope for a lighter sentence is not ground for withdrawal of a plea". Commonwealth v. O'Brien, 273 Pa.Super. 198, 203, 417 A.2d 236, 239 (1979). We do not require that a defendant be pleased with the outcome of his decision to plead guilty. We require that a guilty plea be knowing, intelligent and voluntary. We disagree with appellant's characterization of his guilty plea as anything less than knowing, intelligent and voluntary. To the contrary, the record reveals the care taken in the court's acceptance of appellant's guilty plea. The court informed appellant:

Q. When you plead guilty you give up all these rights I have just mentioned. ² You give up your right to a trial and you admit that you committed the crimes in this case, the crime of rape and secondly, the crime of simple assault. Do you understand that that is the effect of what you are doing here right now?

A. Yes, sir, your Honor.

Regarding the charge of rape, the following exchange occurred:

Q. It is an offense which is a felony of the first degree. It carries a possible prison sentence of up to 20 years in jail and a fine of up to $25,000.00. Do you understand that, sir?

A. Yes, sir, your Honor.

The court also advised appellant of the simple assault charge:

Q. ... Simple assault is a misdemeanor of the second degree and it carries a possible penalty of up to 2 years in jail and a $5,000.00 fine. Do you understand that, sir?

A. Yes, sir, your Honor.

Notes of testimony [N.T.], 3/22/91, at 6-7. In addition, the court advised appellant specifically about the court's discretion in sentencing:

Q. The sentences that I have just described can be served consecutively. It is within the discretion of the court to impose consecutive sentences for these offenses. Do you understand? I'm not saying I will do it but I can do it under the law.

A. I don't understand, your Honor.

Q. Well, I can impose a sentence for rape and another sentence for simple assault and make you serve one after the other or I can make you serve them both at the same time. [T]hat is called concurrent. Do you understand that, sir?

A. Yes, sir, your Honor.

Q. All right. I haven't decided what I'm going to do. I'm telling you ... that I can do that. Is that clear, sir?

A. Yes, sir. [A]ll right.

Id. at 7-8. Further, appellant was informed as follows:

Q. Has anybody promised you anything to get you to plead guilty?

A. No, sir, your Honor.

Q. Nobody has promised you what the sentence will be, have they?

A. No, sir.

Q. The reason they cannot do that is because the sentence is strictly up to me. I haven't decided what the sentence will be and I have made no commitment to anybody about how I'm going to sentence in this case. Is that clear, sir?

A. Yes, sir, your Honor.

Id. at 11.

Contrary to appellant's assertion, the record reveals that appellant was aware of a possible twenty-two years imprisonment. More importantly, the guilty plea colloquy ably conducted by Judge Freedberg illustrates that appellant was fully aware of the implications of his decision to tender a plea. It was not error to deny appellant's motion to withdraw it. We have held that a defendant will be permitted to withdraw a guilty plea only if he is able to show prejudice which results in a manifest injustice to the defendant. Commonwealth v. Vance, 376 Pa.Super. 493, 546 A.2d 632 (1988). To prove manifest injustice, a criminal defendant must show that his plea was involuntary or was entered without knowledge of the charge. Commonwealth v. Fenton, 388 Pa.Super. 538, 566 A.2d 260 (1989). In the instant case, appellant fails to demonstrate that he has suffered any prejudice which could even remotely be characterized as a manifest injustice. As demonstrated by the hearing excerpt set forth above, appellant's plea was entered voluntarily and with full knowledge of the charges and the consequences of his decision. Appellant's first argument fails.

Appellant's second assertion of error is that his sentence is illegal. Appellant theorizes that the simple assault charge merges with the rape charge, and that it was error to sentence for both crimes. We disagree. Under the circumstances of the instant case, the simple assault and rape charges do not merge because there are separate factual predicates for each offense. The simple assault in this case is a separate crime because it occurred after, not in the course of the rape, and involves a separate set of actions accomplished outside of the rape.

Our Supreme Court has held that offenses merge where the elements of one offense are identical to and capable of being wholly contained within the elements of the other offense, and where the factual predicate for the lesser included offense is part of the factual predicate required to establish the greater offense. Commonwealth v. Weakland, 521 Pa. 353, 555 A.2d 1228 (1989). Clearly, the factual predicate for simple assault is not part of the rape in the instant case. When appellant bound the victim's hands and feet together and pushed her over an embankment, the rape was already completed. The simple assault was not an essential part of the crime of rape; it was a separate crime for which a separate charge and sentence were properly imposed. See also Commonwealth v. Dotter, 403 Pa.Super. 507, 589 A.2d 726 (1991) (panel held that charges for aggravated assault and rape did not merge, because assault occurred after rape was completed). Accordingly, appellant's second assertion of error cannot succeed.

Third and fourth, appellant requests our review of the discretionary aspects of his sentence. More specifically, appellant's third allegation of error is that the court erred because it sentenced appellant without sufficient basis or foundation. ³ Appellant's fourth argument is that his sentence is excessive. We reiterate that we are not compelled to address every question set before this Court regarding discretionary aspects of sentencing. Rather,

[t]o reach the merits of a discretionary sentencing issue, we conduct a four part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 1410, Commonwealth v. Boone, 467 Pa. 168, 354 A.2d 898 (1975); Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987) (en banc ); Commonwealth v. Duffy, 341 Pa.Super. 217, 491 A.2d 230 (1985); (3) whether appellant's brief has a fatal defect, Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), Pa.R.A.P. 2119(f); Commonwealth v. Williams, 386 Pa.Super. 322, 562 A.2d 1385 (1989); Commonwealth v. Ziegler, 379 Pa.Super. 515, 550 A.2d 567 (1988), Krum, supra; and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b). We are...