Com. v. Muhammad

• Decision Date: 01 March 2002
• Citation: 794 A.2d 378
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Kaazim MUHAMMAD, Appellant.
• Court: Pennsylvania Superior Court

794 A.2d 378

COMMONWEALTH of Pennsylvania, Appellee, v. Kaazim MUHAMMAD, Appellant.

Superior Court of Pennsylvania.

Submitted October 15, 2001.

Filed March 1, 2002.

Michale P. Marryshow, Philadelphia, for appellant.

Catherine L. Marshall, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.

Before McEWEN, P.J.E., STEVENS, J., and HESTER, J.

STEVENS, J.

¶ 1 This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Philadelphia County on October 14, 1999, following Appellant's plea of guilty to charges of aggravated assault,¹ burglary,² and criminal conspiracy,³ and a plea of nolo contendere to possession with intent to deliver a controlled substance.⁴ Herein, he contends that the trial court abused its discretion in failing to allow him to withdraw his guilty plea. We affirm.

¶ 2 On December 10, 1998, Appellant and Abdul Salaam, co-defendant and brother of Appellant, brutally kicked and beat Ms. Camella Rainey into unconsciousness.⁵ On August 11, 1999, Appellant appeared before the trial court and entered an open guilty plea to aggravated assault, burglary, and criminal conspiracy. Following a colloquy conducted by the court, the court accepted Appellant's plea and deferred imposition of sentence pending a pre-sentence investigation. N.T. 8/11/99 at 32.

¶ 3 On October 12, 1999, Appellant's sentencing proceeding began with counsel for Appellant informing the court that Appellant did not wish to go forward with his plea and wanted to withdraw his plea. N.T. 10/12/99 at 4-5. When questioned by the court as to the basis for the withdrawal of his plea, Appellant responded, "Because I feel as though, you know, I was coerced to do that because my attorney, he telling me I'm getting a hundred and something years, $200,000 and —". Id. at 5. The court explained to Appellant that it was his attorney's obligation to inform him of the maximum penalties. The court proceeded to question Appellant as follows:

THE COURT: Are you telling me that you did not kick this lady[, Ms. Rainey]?

DEFENDANT MUHAMMAD: Yes.

THE COURT: Are you telling me that you did not beat this lady up senseless?

DEFENDANT MUHAMMAD: Yes.

THE COURT: Are you telling me you did not chase this lady up the street?

DEFENDANT MUHAMMAD: Yes.

Id. at 8. Following Appellant's responses, the court stated that the plea would be withdrawn and the case set for trial. Id.

¶ 4 As the proceeding continued, however, counsel for the Commonwealth indicated that the Commonwealth was in a different posture than it was when Appellant's plea was initially entered, because of events that transpired the previous week. Counsel went on to call upon Ms. Rainey, who testified, inter alia, that on October 5, 1999, she was kidnapped at gunpoint by a male named Shannon, and held for a period of approximately 20 hours. Id. at 13-19. After hearing this testimony, the court, in an attempt to clear the record, indicated that Appellant was scheduled to be sentenced the previous week, specifically, October 6, 1999; however, on that day, Appellant wanted to withdraw his plea. Id. at 24. The court stated it was later informed Appellant again wanted to proceed by way of guilty plea; hence, the present proceeding was scheduled, adding "and now again this morning he wants to withdraw his plea." Id. Following an exchange between the court, Appellant, and Appellant's attorney, the court said to Appellant, "There is one question before you. Do you wish to withdraw your guilty plea in Ms. Rainey's case?" Appellant responded, "No, ma'am." Id. at 28.

¶ 5 The court stated it was advised that Appellant wished to enter a plea of guilty to a pending charge of possession with intent to deliver a controlled substance. Following discussion with Appellant, Appellant entered a plea of nolo contendere to this charge. As to the incident concerning Ms. Rainey, the court heard from Appellant's mother, Appellant's counsel, Ms. Rainey, and Appellant, who acknowledged what he did was wrong. Id. at 86. Appellant went on to state as follows: "I apologize to Ms. Rainey for doing what I was doing...." Id. at 88. The court then spoke to Appellant and the following relevant exchange transpired:

The Court: I am going to sentence you to 10 to 20 years incarceration on the aggravated assault against Camella Rainey, and I am going to sentence you to two-and-a-half to five on the drug case.

Defendant Muhammad: Excuse me, your Honor.

The Court: Yes.

Defendant Muhammad: If you was going to sentence me to this, you know, I might as well, you know —

The Court: You want to go before a jury?

Defendant Muhammad: Yes.

Id. at 93-94. The court stated that it would allow Appellant to think about his decision and return to court the next morning.

¶ 6 The following day, Appellant appeared and informed the court that he wished to go to trial on the charges regarding Ms. Rainey. N.T. 10/13/99 at 2. Counsel for Appellant also requested time to file a formal motion to withdraw Appellant's plea. The court stated that Appellant was going to trial on these charges, but that it was necessary to return to court the next day so that Commonwealth counsel Steve Collier, who previously had been involved in the matter, could be present and state his position on the matter.⁶ Id. at 4.

¶ 7 The following day, October 14, 1999, Appellant presented to the court a Motion to Withdraw Guilty Plea. The court conducted a hearing on the Motion, at which time Appellant was asked his reason for withdrawing his guilty plea. Appellant responded as follows: "Because my attorney Mike Contos is like, when I talked to him, he tell me he can't win a case, or when we talk, he get mad at me. You going to get found guilty and do a lot of years." 10/14/99 at 5. Appellant added, "Then the other attorney talking about it's going to be—big dudes going to, you know, do things to you in that jail, like talking." Id. Appellant further stated that he felt his attorney was forcing him to do something he did not want to do. Id. at 7.

¶ 8 During the hearing, the court questioned Appellant as follows:

Q: Do you remember telling the Judge that you're sorry about what happened? This was during your sentencing part. Do you remember that?

A: Yeah. I am sorry about what happened, but I never said I did it. I just said I am sorry about what happened.

Id. at 14.

¶ 9 After hearing from Appellant, the court stated, in part, as follows:

Very good. Mr. Muhammad, the standard by which the law allows me to accept the withdrawal of a guilty plea is manifest injustice. I find no basis for manifest injustice in this situation.

....

The standard, the legal standards for manifest injustice have not been made out in this case. You have had more than ample time to consider your situation and your decision. You have told me multiple times what you wish to do. I believe that your efforts at this point are an outgrowth of your desire to manipulate the Court. I see no basis for withdrawing the guilty plea.

Id. at 15-16.

¶ 10 We agree with the trial court's above assessment of Appellant, in that Appellant's representations and actions clearly evidence an attempt to manipulate the court.

¶ 11 The trial court went on to reiterate the sentence previously imposed on October 12, 1999: a ten (10) to twenty (20) year term of imprisonment for aggravated assault⁷ and two and one-half (2 ½) to five (5) year term for the drug charge. Id. at 16. Appellant filed a Motion to Modify Sentence, which was denied by the court on October 18, 1999. The present appeal followed.⁸

¶ 12 Herein, Appellant contends that the court abused its discretion in failing to allow him to withdraw his guilty plea, which he claims was entered into unknowingly and involuntarily. Specifically, he argues that: he was not advised on the record of the nature of the charges against him; he did not read the written plea colloquy at the time of his plea; his counsel coerced him into pleading guilty; he twice proclaimed his innocence; and he requested to withdraw his plea prior to sentencing.⁹

¶ 13 We begin with the principle that a defendant has no absolute right to withdraw a guilty plea; rather, the decision to grant such a motion lies within the sound discretion of the trial court. Commonwealth v. Hutchins, 453 Pa.Super. 209, 683 A.2d 674, 675 (1996). In the seminal case of Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973), the Supreme Court set forth the standard for determining when a motion to withdraw a guilty plea prior to sentencing should be granted. The Court stated that "[a]lthough there is no absolute right to withdraw a guilty plea, properly received by the trial court, it is clear that a request 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 provided a "fair and just reason" for withdrawal of his plea; and (2) the Commonwealth will not be "substantially prejudiced in bringing the case to trial." Id.

¶ 14 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 was entered into involuntarily, unknowingly, or unintelligently." Commonwealth v. Stork, 737 A.2d 789, 790 (Pa.Super.1999) (citation omitted).

¶ 15 A showing of manifest injustice is required after imposition of sentence since, at this stage of the proceeding, permitting the liberal standard enunciated in Forbes might encourage the entrance of a plea as a "sentence testing device." Commonwealth v. Muntz, 428 Pa.Super. 99, 630 A.2d 51, 53 (1993) (citing Commonwealth v. Starr, ...