Com. v. Myers
| Decision Date | 26 May 1994 |
| Citation | 642 A.2d 1103,434 Pa.Super. 221 |
| Parties | COMMONWEALTH of Pennsylvania v. Ernest MYERS, Jr., Appellant. |
| Court | Pennsylvania Superior Court |
Marilyn J. Gelb, Philadelphia, for appellant.
Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
Before CAVANAUGH, WIEAND and OLSZEWSKI, JJ.
On November 15, 1991, Ernest Myers, Jr. entered a negotiated plea of guilty to a charge of rape, in return for which the Commonwealth agreed to nol pros other charges and recommend a sentence of imprisonment for not less than three (3) years and not more than six (6) years. 1 The plea was accepted after an extensive colloquy, and Myers was sentenced the same day in accordance with the plea agreement. On November 22, 1991, however, Myers filed a petition to withdraw his guilty plea, alleging that he was innocent of the rape charge and that his plea had been involuntarily entered because he had been under emotional distress at the time. Myers' petition to withdraw his guilty plea was denied on June 30, 1992, after hearing. A direct appeal was filed, but this was later dismissed for failure to file an appellate brief. Myers then filed a petition under the Post Conviction Relief Act, and, pursuant thereto, was granted leave to file an appeal nunc pro tunc. In his nunc pro tunc appeal, Myers argues that the trial court erred by denying his petition to withdraw his plea of guilty because he asserted his innocence and because the Commonwealth would not have been prejudiced thereby. After careful review, we affirm the judgment of sentence.
Where a defendant moves to withdraw a plea of guilty prior to the imposition of sentence, the motion should be liberally granted for any fair or just reason, so long as the Commonwealth will not be substantially prejudiced thereby. See: Commonwealth v. Forbes, 450 Pa. 185, 190-191, 299 A.2d 268, 271 (1973). Indeed, a defendant's mere assertion of innocence may constitute a fair and just reason for allowing the pre-sentence withdrawal of a guilty plea. Commonwealth v. Forbes, supra at 191-192, 299 A.2d at 272. However, where a defendant seeks to withdraw a plea of guilty after sentence has been imposed, he must demonstrate that a manifest injustice will result if he is not allowed to withdraw the plea. See: Commonwealth v. Schultz, 505 Pa. 188, 191, 477 A.2d 1328, 1329-1330 (1984); Commonwealth v. Shaffer, 498 Pa. 342, 346-347, 446 A.2d 591, 593 (1982).
Instantly, appellant did not move to withdraw his guilty plea until after sentencing. He argues, nevertheless, that the pre- sentence standard should apply because he entered a plea of guilty and was sentenced on the same day and, thus, never had an opportunity to move to withdraw his plea prior to sentencing. We reject this argument. A similar argument was considered in Commonwealth v. Refile, 353 Pa.Super. 190, 509 A.2d 400 (1986), allocatur denied, 518 Pa. 655, 544 A.2d 1342 (1988), where the Superior Court reasoned as follows:
Pa.R.Crim.P. 320 provides that "[a]t any time before sentence, the court may, in its discretion, permit or direct a plea of guilty to be withdrawn and a plea of not guilty substituted." (Emphasis added.) Under this Rule, " '[i]f the court finds "any just reason," withdrawal of the plea should be freely permitted, unless the prosecution has been "substantially prejudiced." ' " Commonwealth v. Middleton, 504 Pa. 352, 355, 473 A.2d 1358, 1359 (1984), quoting Commonwealth v. Forbes, 450 Pa. 185, 191, 299 A.2d 268, 271 (1973). A post-sentence motion to withdraw a plea pursuant to Pa.R.Crim.P. 321, on the other hand, will be granted only upon a showing of prejudice on the order of manifest injustice. Commonwealth v. Middleton, supra.
Appellant does not dispute that his request to withdraw the plea of guilty was made after sentence had been imposed. He argues, however, that he should have been permitted to proceed under the pre-sentence standards of Rule 320 because he was not given an opportunity to withdraw his guilty plea prior to the imposition of sentence. Appellant has cited no authority for the principle, implicit in his argument, that one who enters a plea of guilty must be given a period of ten days within which to reconsider his plea of guilty and file a motion to withdraw the plea before he can be sentenced. Our own research, similarly, has disclosed no support for such a principle of law. Rule 320 does not contain a mandatory waiting period before the imposition of sentence, and we discern no sound reason for reading the rule as implying such a requirement. Appellant's argument to the contrary is rejected.
Id. 353 Pa.Super. at 192-193, 509 A.2d at 401-402. The Refile Court's rationale is equally applicable to the instant case. In order to be permitted to withdraw his guilty plea after sentencing, therefore, it was essential that appellant demonstrate prejudice in the nature of a manifest injustice. 2
In Commonwealth v. McClendon, 403 Pa.Super. 467, 589 A.2d 706 (1991) (en banc), allocatur denied, 528 Pa. 622, 597 A.2d 1151 (1991), the Superior Court observed:
"In order to permit the withdrawal of a guilty plea after sentence has been entered, there must be a showing of prejudice that results in a manifest injustice to the defendant." Commonwealth v. Vance, 376 Pa.Super. 493, 499, 546 A.2d 632, 635 (1988). See also: Commonwealth v. Schultz, 505 Pa. 188, 191, 477 A.2d 1328, 1329-1330 (1984); Commonwealth v. Muller, 334 Pa.Super. 228, 233-234, 482 A.2d 1307, 1310 (1984). "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, 542, 566 A.2d 260, 262 (1989). See also: Commonwealth v. Jones, 389 Pa.Super. 159, 162, 566 A.2d 893, 895 (1989); Commonwealth v. Campbell, 309 Pa.Super. 214, 219, 455 A.2d 126, 128 (1983). However, "[o]nce a defendant has entered a plea of guilty, it is presumed that he was aware of what he was doing, and the burden of proving involuntariness is upon him." Commonwealth v. West, 336 Pa.Super. 180, 186, 485 A.2d 490, 493 (1984). See also: Commonwealth v. Phillips, 374 Pa.Super. 219, 222, 542 A.2d 575, 576 (1988); Commonwealth v. Brown, 242 Pa.Super. 240, 244, 363 A.2d 1249, 1251 (1976).
Id. 403 Pa.Super. at 469-470, 589 A.2d at 707.
The law does not require that a defendant be pleased with the outcome of his decision to enter a plea of guilty. All that is required is that the defendant's decision to plead guilty be knowingly, voluntarily and intelligently made. Commonwealth v. Martin, 416 Pa.Super. 507, 512, 611 A.2d 731, 733 (1992).
Pennsylvania has constructed its guilty plea procedures in a way designed to guarantee assurance that guilty pleas are voluntarily and understandingly tendered. See: Pa.R.Crim.P. 319 and comment thereon. The entry of a guilty plea is a protracted and comprehensive proceeding wherein the court is obliged to make a specific determination after extensive colloquy on the record that a plea is voluntarily and understandingly tendered. A guilty plea colloquy must include inquiry as to whether (1) the defendant understood the nature of the charge to which he is pleading guilty; (2) there is a factual basis for the plea; (3) the defendant understands that he has the right to a jury trial; (4) the defendant understands that he is presumed innocent until he is found guilty; (5) the defendant is aware as to the permissible range of sentences; and (6) the defendant is aware that the judge is not bound by the terms of any plea agreement unless he accepts such agreement. Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977). Inquiry into these six areas is mandatory in every guilty plea colloquy. Commonwealth v. Glaze, 366 Pa.Super. 517, 531 A.2d 796 (1987); Commonwealth v. Moore, 365 Pa.Super. 65, 528 A.2d 1364 (1987). See also: Commonwealth v. Johnson, 355 Pa.Super. 123, 512 A.2d 1242 (1986).
Commonwealth v. Cole, 387 Pa.Super. 328, 335-336, 564 A.2d 203, 206-207 (1989) (en banc). Commonwealth v. Fluharty, 429 Pa.Super. 213, 219, 632 A.2d 312, 314 (1993), quoting Commonwealth v. Broadwater, 330 Pa.Super. 234, 244, 479 A.2d 526, 532 (1984). "Therefore, '[w]here the record clearly demonstrates that a guilty plea colloquy was conducted, during which it became evident that the defendant understood the nature of the charges against him, the voluntariness of the plea is established.' " Commonwealth v. Miller, 432 Pa.Super. 619, 630, 639 A.2d 815, 820 (1994), quoting Commonwealth v. Lewis, 430 Pa.Super. 336, 341, 634 A.2d 633, 635 (1993).
Our review of the record in the instant case discloses that, prior to accepting appellant's guilty plea, the trial court engaged appellant in an extensive colloquy in which it was explained to him all of the rights he would be giving up by pleading guilty. During the colloquy, appellant denied that he had been threatened or coerced into pleading guilty and said that he was doing so of his own free will. When the trial court asked appellant a second time whether his decision to plead guilty had been a voluntary one, he responded, "Absolutely." Thereafter, following the prosecutor's summary of the factual basis for the plea, appellant, after a tearful hesitation, responded affirmatively that he had forced the victim to have sex with him. 3 At the conclusion of the colloquy, however, the following occurred:
THE COURT: I see some people here besides the lawyers and the court personnel.
Do you mind telling me who you are?
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