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COMMONWEALTH OF PENNSYLVANIA,
Appellant
v.
RAFAEL MARTI JR.,
Appellee
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IN THE SUPERIOR COURT OF
PENNSYLVANIA
No. 1119 MDA 2011
Appeal from the Order Entered June 21, 2011
In the Court of Common Pleas of York County
Criminal No(s).: CP-67-CR-0000736-2008, CP-67-CR-0002818-2008
BEFORE: BOWES, COLVILLE*, and FITZGERALD**, JJ.
MEMORANDUM BY FITZGERALD, J.:
FILED JUNE 28, 2013
Appellant, Rafael Marti, Jr., appeals from the order entered in the York
County Court of Common Pleas, dismissing his first petition filed pursuant to
the Post Conviction Relief Act1 (“PCRA”). This case returns to us after we
denied counsel’s petition to withdraw from representation and remanded to
have counsel file an advocate’s brief or a renewed Turner/Finley2 petition
to withdraw. Counsel has now filed an advocate’s brief. We affirm.
On direct appeal, this Court set forth the facts:
*
Retired Senior Judge assigned to the Superior Court.
**
Former Justice specially assigned to the Superior Court.
1
2
42 Pa.C.S. §§ 9541-9546.
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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In 2007, [Appellant] and his girlfriend were arrested
after large amounts of cocaine and marijuana were
discovered at [Appellant]’s residence.
[Appellant, in
exchange for leniency3 to his co-defendant girlfriend,
entered an open plea of] guilty to two counts of delivery of
a controlled substance, two counts of possession with
intent to deliver, criminal conspiracy, and receiving stolen
property.
Commonwealth v. Marti, No. 1882 MDA 2009 (unpublished memorandum
at 1) (Pa. Super. Nov. 17, 2010) (“Marti I”).
On December 17, 2008,
Appellant completed a written guilty plea colloquy and discussed it with his
counsel.
N.T. Guilty Plea, 12/17/08, at 4.
On the same day, Appellant’s
girlfriend pleaded guilty to misdemeanors and was sentenced to twelve
months’ probation.4
On December 26, 2008, Appellant filed a presentence motion to
withdraw his guilty plea.
At the January 20, 2009 hearing on Appellant’s
motion—more than thirty days after December 17, 2008—the following
exchange transpired:
[Appellant’s counsel]: Your Honor, at the time of the
plea, Your Honor, immediately following my client was very
dissatisfied with the fact that he had pled. He did not want
to, but he felt that he was in essence forced into it. He
didn’t have enough time to consider all of his options.
Prior to the plea, and I was speaking with the [assistant
district attorney, I] advised [Appellant] that I did not think
it was wise for him to plead, but he decided to at that
3
We discuss the leniency in further detail, below.
4
The record does not reflect the date she was sentenced and whether she
appealed.
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point do so. Immediately proceeding [sic], Your Honor, he
was indicating to me that he didn’t do some of the offenses
listed, and that he wished to have a trial. I indicated to
him that our only other option at that point was to file a
motion to withdraw our plea and leave it up to the
discretion of the Court. That’s why we are here today,
Your Honor, and we are asking that he be allowed to have
a jury trial.
The Court: There was no plea agreement?
[Appellant’s counsel]: There was no plea agreement,
however, he did receive some consideration, Your Honor,
in two points, and in the motion issue No. 9 the last
sentence, [Appellant] does state that part of the reason he
pled was so the Commonwealth would be lenient on the
co-defendant girlfriend/wife. That did happen. She did
receive or plea to misdemeanor as opposed to felonies and
received probation. Second part of the leniency is, Your
Honor, in regard to 736 of ’08, he pled guilty to Count I,
delivery of cocaine.
In exchange for that, the
Commonwealth did agree not to file the mandatory on that
charge, and the Commonwealth has not done so.
*
*
*
The Court: Okay. Sir, obviously if you are innocent,
you didn’t do this, you go to trial. That’s the end of the
discussion. However, if you did, you should be aware that
the plea agreement that was reached semi sort of a plea
agreement you would lose the benefit of it.
[Appellant]: I understand.
The Court: And at this point if you go to trial and as a
result of the Judge [sic] hearing, and it won’t be me, by
the way, this will be going back I guess to Judge Snyder.
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The Court: [Judge Snyder] would decide what the
appropriate sentence was, but it’s been my experience that
somebody that enters a guilty plea gets a benefit out of
accepting responsibility plus the Judge doesn’t hear all the
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details, the dirty details. When he has a trial, he sits there
and listens to everything in detail, while plea it is just a
summary presentation, and it’s [sic] been my experience
that you end up getting more time under those
circumstances occasionally, not always, but sometimes. In
addition, you also lose the benefit of the plea agreement
for girlfriend.
[Commonwealth]: Girlfriend or wife.
The Court: In any event, the Commonwealth would
be permitted to have her sentence and plea vacated,
and she would again face the original charges she
faced, and she would potentially go to jail for the
maximum sentence on whatever her charges were.
[Appellant’s
counsel]:
Your
Honor,
it
is
understanding that she had already been sentenced.
my
The Court: Doesn’t matter. If [the] agreement was
that she got sentenced on the basis of his plea and
he withdraws his plea, then she is back to where she
was. If you want to—
[Appellant’s counsel]: Let me—
The Court: You can’t have the benefit of that and
withdraw your plea.
[Appellant’s counsel]: Your Honor, after conferring with
[Appellant], even though he is reluctant, he understands
that he doesn’t want his significant other to be tried again
or for her sentence to be vacated. So at this point, Your
Honor, we will be withdrawing our motion.
The Court: Okay. And do you want to finalize the case
today and have the sentence by the agreement that the
Commonwealth offered, or do you want to continue to
have the possibility that go higher or lower?
N.T. Mot. to Withdraw Plea, 1/20/09, at 1-5 (emphases added). Appellant’s
plea counsel responded that Appellant had numerous questions, and thus
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counsel wanted to speak with Appellant before responding to the court’s
query. Id. at 6. The court acknowledged counsel’s request, announced that
Appellant had withdrawn his motion, and concluded the hearing. Id.
On February 9, 2009, Appellant was sentenced to seven-and-a-half to
fifteen years in prison. He subsequently filed a PCRA petition, had his direct
appeal rights reinstated, and obtained a six-month reduction of his sentence
to seven to fifteen years in prison. Appellant timely appealed, and the Marti
I Court affirmed on November 17, 2010.
On March 30, 2011, Appellant timely filed his first pro se PCRA petition
and supporting memorandum of law.5
Appellant claimed his plea counsel
was ineffective for failing to object to the trial court’s participation in plea
negotiations and for advising him that he would receive a three to six year
sentence. On May 16, 2011, the court appointed PCRA counsel, who did not
file an amended PCRA petition.
A hearing was held on June 21, 2011, at
which Appellant and plea counsel testified.
The PCRA court denied
Appellant’s petition.
Appellant timely appealed and timely filed a court-ordered Pa.R.A.P.
1925(b) statement. As stated above, PCRA counsel also filed with this Court
5
Because Appellant’s “earlier PCRA petition served only to reinstate [his]
rights to a direct appeal,” the instant PCRA petition is considered his first.
See Commonwealth v. Karanicolas, 836 A.2d 940, 942 (Pa. Super.
2003).
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a petition to withdraw on September 6, 2011.
As set forth in our
memorandum remanding this case, Appellant raised the following issues:
Whether the PCRA court erred in finding that Appellant’s
trial counsel did not induce his guilty plea with a promise
of a lower sentence than what he actually received?
Whether the PCRA court erred in finding that Appellant’s
trial counsel was not ineffective for failing to object to the
sentencing court’s participation in plea negotiations
between the Commonwealth and Appellant?
Commonwealth v. Marti, 119 MDA 2011 (unpublished memorandum at 7)
(Pa. Super. Dec. 20, 2012).
This Court denied relief on Appellant’s first
issue and granted relief on his second issue. See id. Accordingly, this Court
denied counsel’s petition to withdraw, and remanded to have counsel file an
advocate’s brief or a renewed petition to withdraw regarding the second
issue. See id.
Appellant’s counsel elected to file an advocate’s brief, and the
Commonwealth filed a responsive brief.
The PCRA court did not file a
supplemental opinion. This issue is now ripe for disposition.
In his advocate’s brief, Appellant raises the following issue:
Whether a plea court actively participates in plea
negotiations when it provides erroneous information to a
defendant [i.e., Appellant,] who wants to withdraw his
plea?
Appellant’s Brief at 4.
Appellant contends that the plea court gave Appellant erroneous
information: the Commonwealth could vacate his girlfriend’s plea to
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misdemeanor offenses.
He argues that this erroneous information caused
him to withdraw his motion to withdraw his guilty plea in order to not affect
his girlfriend’s plea bargain.
Appellant insists that the Commonwealth
cannot establish substantial prejudice or any other basis to deny his request
to withdraw his guilty plea.
The Commonwealth counters that Appellant’s plea was voluntary and
that the trial court did not exercise undue persuasion.
Rather, the
Commonwealth claims, the trial court enlightened Appellant about the
potential consequences of withdrawing his guilty plea. It insists that it would
incur substantial prejudice if Appellant withdrew his guilty plea because it
complied with the plea agreement.
The Commonwealth observes that the
trial court could have altered or modified Appellant’s girlfriend’s sentence
after thirty days had elapsed if fraud occurred. It alleges that if Appellant
did not fulfill his end of the plea agreement, then he would have committed
fraud in order to obtain a shorter sentence for his girlfriend.
We hold
Appellant is not entitled to relief.
“On appeal from the denial of PCRA relief, our standard and scope of
review is limited to determining whether the PCRA court’s findings are
supported by the record and without legal error.” Commonwealth v. AbuJamal, 941 A.2d 1263, 1267 (Pa. 2008).
[C]ounsel is presumed to have provided effective
representation unless the PCRA petitioner pleads and
proves that: (1) the underlying claim is of arguable merit;
(2) counsel had no reasonable basis for his or her conduct;
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and (3) Appellant was prejudiced by counsel’s action or
omission. To demonstrate prejudice, an appellant must
prove that a reasonable probability of acquittal existed but
for the action or omission of trial counsel. A claim of
ineffective assistance of counsel will fail if the petitioner
does not meet any of the three prongs. Further, a PCRA
petitioner must exhibit a concerted effort to develop his
ineffectiveness claim and may not rely on boilerplate
allegations of ineffectiveness.
Commonwealth
v.
Perry,
959
A.2d
932,
936
(Pa.
Super.
(punctuation marks and citations omitted).
A decision regarding whether to accept a defendant’s
pre-sentence motion to withdraw a guilty plea is left to the
discretion of the sentencing court. Pennsylvania Rule of
Criminal Procedure 591 provides:
At any time before the imposition of sentence,
the court may, in its discretion, permit, upon
motion of the defendant, or direct, sua sponte,
the withdrawal of a plea of guilty or nolo
contendere and the substitution of a plea of not
guilty.
Pa.R.Crim.P. 591(A) (emphasis added).
There is no absolute right to withdraw a guilty plea.
Nevertheless, prior to the imposition of sentence, a
defendant should be permitted to withdraw his plea for any
fair and just reason, provided there is no substantial
prejudice to the Commonwealth.
We will not disturb the decision of the sentencing court
absent an abuse of discretion. An abuse of discretion is
not merely an error judgment. Discretion is abused when
the law is overridden or misapplied, or the judgment
exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias, or ill-will, as shown by the
evidence or the record.
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Commonwealth v. Broaden, 980 A.2d 124, 128 (Pa. Super. 2009)
(citations and quotation marks omitted). An assertion of innocence is a “fair
and just” reason.
Commonwealth v. Forbes, 299 A.2d 268, 272 (Pa.
1973).
Our review of caselaw reveals no particular test for identifying
substantial prejudice to the Commonwealth when considering a defendant’s
motion to withdraw a guilty plea.
Our Supreme Court, however, has
observed:
When the defendant’s own action prevents adjudication of
the greater charges, it is absurd to suggest that, in the
event the defendant reneges on his plea agreement, the
government has relinquished its right to prosecute on
those charges.
The government simply has made a
bargain which it is obligated to keep only so long as the
defendant is willing to abide by its terms.
When a
defendant abrogates a plea agreement, he resumes his
preagreement status, and the government may proceed on
the original charges as if the agreement had never existed.
...
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A “mutuality of advantage” to defendants and
prosecutors flows from the ratification of the bargain.
When a defendant withdraws or successfully challenges his
plea, the bargain is abrogated and he must be prepared to
accept all of the consequences which the plea originally
sought to avoid.
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Commonwealth v. Ward, 425 A.2d 401, 406 (Pa. 1981) (citation
omitted).6
Instantly, Appellant alleged that “he didn’t do some of the offenses”
and wished to proceed with trial. See N.T. Mot. to Withdraw Plea at 2. This
allegation is a “fair and just” reason.
See Forbes, 299 A.2d at 272.
In
response, the trial court engaged Appellant in the colloquy reproduced
above.
After careful consideration, we conclude substantial prejudice would
inure to the Commonwealth. In this case, the Commonwealth and Appellant
entered an informal agreement, with both Appellant and his girlfriend
receiving the benefit of that agreement. See Ward, 425 A.2d at 406. We
view Appellant’s request to withdraw his guilty plea in conjunction with the
recognition that the Commonwealth honored the plea agreement by
charging Appellant’s girlfriend with lesser offenses. Cf. id. Although it is not
clear from the record when Appellant’s girlfriend was sentenced, neither
party disputes that she received the benefit of the plea agreement reached
between Appellant and the Commonwealth.
Cf. id.
Given these unique
factual circumstances, we decline to reverse the PCRA court’s order
dismissing his first petition, permit Appellant to withdraw his guilty plea, and
6
We acknowledge that the Ward Court was discussing a factual scenario in
which a defendant agreed to plead guilty to a lesser charge in exchange for
avoiding adjudication of a greater charge. See Ward, 425 A.2d at 406.
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reap, without apparent consequence, the benefit of the Commonwealth’s
compliance with the agreement.
Cf. id.7
Because Appellant has not
established the Commonwealth would not suffer substantial prejudice, we
fail to discern any arguable merit to Appellant’s claim and thus conclude he
has not established his plea counsel provided ineffective assistance of
counsel. See Perry, 959 A.2d at 936. We hold the PCRA court did not err
by denying Appellant’s first PCRA petition, and therefore affirm the order
below.8 See Abu-Jamal, 941 A.2d at 1267.
Order affirmed.
Colville, J. files a Dissenting Memorandum.
Judgment Entered.
Deputy Prothonotary
Date: 6/28/2013
7
We are concerned about a defendant being permitted to withdraw his guilty
plea when, pursuant to a plea agreement, a third party is charged with
lesser offenses and more than thirty days had lapsed after that third party
was sentenced. We acknowledge that the instant record is unclear as to
when Appellant’s girlfriend was sentenced.
8
We may affirm on any basis. See Commonwealth v. Pacell, 497 A.2d
1375, 1377 n.1 (Pa. Super. 1985).
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