Commonwealth v. Bishop

• Docket Number: 342 WDA 2023,J-S34025-23
• Decision Date: 28 December 2023
• Parties: COMMONWEALTH OF PENNSYLVANIA v. JOSHUA KEITH BISHOP Appellant
• Court: Pennsylvania Superior Court

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COMMONWEALTH OF PENNSYLVANIA v. JOSHUA KEITH BISHOPAppellant

No. 342 WDA 2023

J-S34025-23

Superior Court of Pennsylvania

December 28, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURTO.P. 65.37

Appeal from the Judgment of Sentence Entered January 28, 2022 In the Court of Common Pleas of Erie County Criminal Division at No CP-25-CR-0001758-2021

BEFORE: LAZARUS, J., STABILE, J., and MURRAY, J.

MEMORANDUM

STABILE, J.

AppellantJoshua Keith Bishop, appeals from the judgment of sentence imposed on January 28, 2022 in the Court of Common Pleas of Erie County following entry of his open guilty plea to aggravated assault, 18 Pa.C.S.A. § 2702(a)(4).Appellant contends that the trial court erred by failing to permit him to withdraw his guilty plea prior to sentencing and that his sentence was manifestly excessive because the court failed to consider his ability to pay costs.Following review, we affirm.

The record reflects that on April 28, 2021, Appellant was charged in an eight-count complaint with, inter alia, attempted murder as well as aggravated assault as both a first- and second-degree felony.The charges stemmed from a shooting on April 27, 2021 that followed a verbal altercation between Appellant and his victim, Nicholas Keesling.The complaint reflects that Appellant'was in possession of a .38 caliber revolver which he did fire one shot into the floor . . . and an additional shot which did strike Keesling in the chest.Keesling did require immediate life saving medical procedures[.]"Criminal Complaint (Brief Summary of Facts), 4/28/21, at 1-2(unnumbered).We note that Appellant was licensed to carry the firearm.

At a hearing held on October 28, 2021, Appellant entered into an open guilty plea to one count of aggravated assault as a second-degree felony.The Commonwealth proposed a state sentence of one-to-two years in prison.At the conclusion of the hearing, the trial court ordered a pre-sentence investigation report.Appellant's sentencing hearing was conducted on January 28, 2022.

With regard to Appellant's guilty plea, the trial court explained:

A review of the record shows that on January 19, 2022, [Appellant] sent a letter to his plea counsel requesting to withdraw his guilty plea because he was "not guilty of the charge(s)."No motion to withdraw guilty plea was filed.

. . .

In this case, no motion to withdraw guilty plea was filed.[Appellant's] sole basis, in his letter, for requesting to withdraw the plea was based on a claim of innocence.At the time of his sentencing, the court discussed the matter thoroughly with [Appellant].

Trial Court Opinion, 3/1/23, at 1-2.

In an excerpt from the sentencing hearing quoted in the trial court's opinion, the court explained that Appellant sent his letter requesting withdrawal of the guilty plea to the Erie County Clerk of Courts.The court advised Appellant that "when you have an attorney, that's not going to work.You have to go through your attorney, and your attorney has to file a motion to withdraw the plea."Id. at 3(quoting Notes of Testimony, Sentencing ["N.T."], 1/28/22, at 7).

The trial judge proceeded to explain that he would permit Appellant to file a motion to withdraw his plea, in which case a hearing would be held on the motion.Further discussion ensued, during which it was explained that the filing of a motion to withdraw the plea would prompt the withdrawal of the plea deal offered to Appellant.The deal was a "global deal" that included a separate domestic case.The prosecutor explained, "They are separate cases.It's just we gave you a very large break on one of them, due to you pleading on the other one.So, if the consideration to us goes away, we can't give you that benefit anymore.So, just want to make you[] aware of that.Id. at 4(quotingN.T., 1/28/22, at 11).The court then asked Appellant what he wanted to do, to which Appellant responded, "I'm going to go through with this.I'm going to go through with sentencing with both pleas."Id. at 5(quoting N.T., 1/28/22, at 11).The court then imposed the sentence of one-to-two years in prison, with credit for time served, followed by concurrent sentences of probation on both dockets.In addition, the court imposed costs totaling $6,511.75.

No direct appeal was taken but Appellant later sought, and was awarded, reinstatement of his direct appeal rights and an appeal was subsequently filed with this Court.Both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant presents two issues for our consideration:

The trial court erred in failing to allow [Appellant] to withdraw his plea when he requested that trial counsel file a motion to withdraw his plea prior to sentencing[.]

The sentence in this case was manifestly excessive and clearly unreasonable and was illegal, when the trial court failed to consider during his sentencing his ability pay fines or court costs[.]

Appellant's Briefat 2.

In his first issue, Appellant contends that the trial court erred by failing to permit him to withdraw his guilty plea prior to sentencing.As this Court observed in Commonwealth v. Hart, 174 A.3d 660(Pa. Super.2017), "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."Id. at 664.However, as noted above, "[i]n this case, no motion to withdraw guilty plea was filed."Trial Court Opinion, 3/1/23, at 2.Nevertheless, Appellant claims that he did not have an opportunity "to share with the trial court his reasons for requesting a withdrawal of his plea, as trial counsel did not heed his request in his letter by filing a motion to withdraw."Appellant's Briefat 6.

The record belies Appellant's assertion.The trial judge specifically stated, "I'll allow you to file the motion.I'm not saying that we'll let you withdraw the pleas.But I'll at least allow you to file the motion, and we'll have a hearing on it.Umm, but that's up to you and your counsel."N.T., 1/28/22, at 7.Subsequently, after being advised that his plea deal would be withdrawn if he sought to withdraw his plea, Appellant stated, "I'm going to go through with this.I'm going to go through with sentencing with both pleas."Id. at 11.

Because Appellant did not file a motion to withdraw his guilty plea, he cannot complain that the trial court erred in "failing to allow [him] to withdraw his plea."Appellant's Briefat 4.Appellant's first issue fails.

In his second issue, Appellant asserts that his sentence was manifestly excessive, unreasonable, and illegal because the trial court failed to consider his ability to pay costs imposed at the time of sentencing.He does not challenge the length, reasonableness, or legality of the term of his incarceration or the probationary sentences imposed.Rather, he"argues that his sentence was manifestly excessive and clearly unreasonable due to the fact that the costs lodged against him . . . was beyond his ability to pay and is an excessive punishment."Appellant's Briefat 4.

As this Court explained in Commonwealth v. Mulkin, 228 A.3d 913(Pa. Super.2020):

In addition to the sentencing alternatives under section 9721(a), the Sentencing Code provides for mandatory restitution to the victim and mandatory payment of costs.Unlike restitution imposed under 42 Pa.C.S. §§ 1106,9721(c), and unlike fines, which are both part of a defendant's sentence, 42 Pa.C.S. § 9726(a), (b)(1)-(2), "a direction to pay costs in a criminal proceeding is not part of the sentence, but is an incident of the judgment.Costs do not form a part of the penalty imposed by the statutes providing for the

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