J-S29040-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
CHAD E. SNYDER                              :
                                            :
                            Appellant       :
                                            :     No. 1729 WDA 2015

              Appeal from the Judgment of Sentence July 2, 2015
    in the Court of Common Pleas of Westmoreland County Criminal Division
                       at No(s): CP-65-CR-0005111-2013

BEFORE: BENDER, P.J.E., PANELLA, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                            FILED MAY 27, 2016

        Appellant, Chad E. Snyder, appeals from the judgment of sentence

entered in the Westmoreland County Court of Common Pleas after he

pleaded guilty to robbery,1 burglary,2 theft by unlawful taking,3 and

conspiracy.4      Appellant claims he did not enter his plea knowingly,

voluntarily, and intelligently because (1) the Commonwealth provided a

guideline sentence form with incorrect information to Appellant prior to his




*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3701(a)(1)(ii).
2
    18 Pa.C.S. § 3502(a)(1).
3
    18 Pa.C.S. § 3921(a).
4
    18 Pa.C.S. § 903(a)(1).
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plea and (2) the trial court never informed Appellant of the maximum

sentence or that it could impose his sentences consecutively. We affirm.

      On April 14, 2015, Appellant entered a general guilty plea to the above

crimes stemming from the November 10, 2013 burglary of a residence while

the homeowner, an elderly woman, was home.         At the hearing, the trial

court asked the Commonwealth for the guideline ranges for the offenses.

N.T. Guilty Plea Hr’g, 4/14/15, at 2. Appellant’s counsel then informed the

court, “[t]he robbery is the most serious count, Count 2.    My client has a

zero prior record score. So, the standard range is 22 to 36 months. Offense

gravity score at 10.   Burglary is 9, and the standard range is 12 to 24

months.” Id. at 3.

      The trial court advised that it would look to the sentencing guidelines

when considering Appellant’s sentence and addressed Appellant, in relevant

part, as follows:

               You understand that there is no plea agreement in
            this case, meaning that following the presentence
            investigation, a sentencing hearing will be scheduled
            and the sentence will be determined by me.

            [Appellant:] Yes.

            Q. And are you in agreement with that, sir?

            A. Yes.

            Q. Has anybody promised you anything or
            threatened you with anything so that you would
            plead guilty?

            A. No.


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              Q. You know you are not required to plead guilty to
              anything?

              A. Yes.

                                      *      *   *

              Q. . . . Do you understand those four charges?[5]

              A. Yes.

              Q. And you are pleading guilty to them?

              A. Yes.

              Q. Any questions about the charges?

              A. No.

              Q. Any questions about anything?

              A. No.

              [Trial] Court: I find the plea has been entered
              knowingly, intelligently and voluntarily, and I will
              accept it.

Id. at 3, 5-7.

        Appellant also executed and signed a “guilty plea petition” outlining his

trial   and   appellate   rights.   Guilty   Plea    Pet.,   4/14/15,   at   2-5.   He

acknowledged that he faced up to “20 years [sic] incarceration and/or

$25,000 fine.” Id. at 2. The court asked Appellant if he understood “all of


5
  The trial court also recited the factual basis for each charge, and Appellant
informed the court he understood the nature of each charge and desired to
plead guilty to them. N.T. Guilty Plea Hr’g at 5-6.




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[the] trial and appeal rights as they were explained in this guilty plea

petition?” N.T. Guilty Plea Hr’g at 5. Appellant responded, “[y]es.” Id.

      The trial court ordered a pre-sentence investigation report, and on July

2, 2015, Appellant appeared for a sentencing hearing. The Commonwealth

argued for the imposition of the deadly weapon enhancement based on

Appellant’s possession of a pellet gun during the commission of the home

invasion.   N.T. Sentencing Hr’g, 7/2/15, at 10, 13; see 204 Pa. Code

§ 303.10. Appellant’s counsel argued the deadly weapon enhancement did

not apply because “[i]t was not a traditional firearm capable of producing

bullets.” Id. at 11. Following argument, Appellant addressed the court, in

relevant part, as follows: “first, whenever I did enter this general plea, there

was never no motion [sic] of a deadly weapon enhancement. I just found

this out last night.” Id. at 14. Appellant then apologized to the victim and

“accept[ed] full responsibility for [his] actions.”   Id. at 14-15.   The trial

court applied the deadly weapon enhancement and sentenced Appellant to

four to eight years’ incarceration on robbery and a consecutive term of two

to four years’ incarceration on burglary.6 Id. at 18-19.

      Appellant filed post-sentence motions on July 6, 2015 seeking

modification of his sentence or, alternatively, to withdraw his guilty plea.


6
  The trial court concluded theft by unlawful taking merged with robbery for
the purpose of sentencing and imposed a concurrent sentence of one and
one-half to three years’ incarceration on criminal conspiracy.          N.T.
Sentencing Hr’g at 18-19.



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Post-Sentence Mot., 7/6/15, at 2-4 (unpaginated).          With respect to his

motion to withdraw his plea, Appellant averred he pleaded guilty in reliance,

in part, on the guideline sentencing form the Commonwealth provided in

discovery, which listed robbery as having an offense gravity score of nine,

instead of ten, and indicated no sentencing enhancement applied. Id. at     3.

He further noted the Commonwealth offered a plea of five to ten years’

incarceration, but he contended that he entered a general plea based on his

“impression that the standard range was significantly less than the

Commonwealth’s offer.” Id. at 4.

      On July 30, 2015, the trial court held a hearing on the motions, and

denied the motion for sentence modification. N.T. Mot. Hr’g, 7/30/15, at 10.

Appellant testified regarding his motion to withdraw his plea consistent with

the averments in his motion, i.e., that he entered a general guilty plea in

reliance on the guideline sentencing form the Commonwealth provided in

discovery.   See id. at 12-14; Post-Sentence Mot., 7/6/15, at 3-4.         He

further acknowledged the trial court had discretion in fashioning his

sentence:

             [Appellant’s Counsel:] And you did know however
             that by pleading generally in front of the [trial court]
             that sentencing was at her discretion and that you
             were not guaranteed any type of sentence; correct?

             [Appellant:] Yes, I did.

N.T. Mot. Hr’g at 13.




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     The Commonwealth cross-examined Appellant on the information in

the pre-sentence investigation report provided to Appellant prior to

sentencing.

              Q. Prior to sentencing, there is a pre-sentence
              investigation report?

              A. Yes, sir.

              Q. Okay. And you had an adequate opportunity to
              review that?

              A. I don’t want to say adequate opportunity. I got
              to review it briefly a couple of days before I got
              sentenced.

              Q. A few days before?

              A. Yeah, but I wasn’t allowed to keep it.

              Q. Right. But you could read it. Did you discuss it
              with [Appellant’s counsel]?

              A. Yes, sir.

              Q. Okay. And one of the standard procedures at
              sentencing is for the [trial c]ourt to ask the defense
              if there’s any additions or corrections to the pre-
              sentence report before sentencing commences? Do
              you recall that happening on July the 2nd?

              A. Yes, I do.

              Q. At that time, you didn’t raise an objection to the
              pre-sentence report indicating that the offense
              gravity score was a ten, not a nine as is on [the
              sentencing guideline form]; correct?

              A. I didn’t say anything, no.

              Q. So you didn’t raise the error?



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            A. I didn’t notice the error.

            Q. Did [Appellant’s counsel] object?

            A. No, sir.

Id. at 18-19.

      Appellant and the Commonwealth submitted memoranda following the

hearing, and the trial court denied the motion on October 16, 2015.

Appellant timely appealed.7

      Appellant raises the following claims of error:

            I. [] Appellant’s guilty plea was not knowingly,
            voluntarily and intelligently entered as the Guideline
            Sentence Form produced by the Commonwealth
            during discovery contained incorrect information
            which [] Appellant relied upon in entering a general
            guilty plea.

            II. [] Appellant’s guilty plea was not knowingly,
            voluntarily and intelligently entered as the [trial
            c]ourt never articulated [] Appellant’s maximum
            sentence or the fact that convictions could be
            imposed consecutively during the plea colloquy.

Appellant’s Brief at 2.

      Appellant cites to Pa.R.Crim.P. 590 to support his position that his plea

is invalid. Id. at 5. Appellant argues, “[t]he incorrect information on the

Commonwealth’s Sentencing Guideline Form undermined [] Appellant’s


7
  The trial court did not order Appellant to file a statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b); however, it filed a
“decree” pursuant to Pa.R.A.P. 1925(a) and directed this Court to the trial
court’s October 16, 2015 order and opinion for the reasons underlying its
decision. Trial Ct. Decree, 11/19/15.



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ability to enter a knowing, intelligent, and voluntary plea. In addition to this

defect, [] Appellant was never informed of his maximum sentence or that his

sentences could be imposed consecutively.” Id. at 6. He contends he “was

led to believe the permissible range for his plea to the Robbery count would

be 22-36 months, when in reality it was 57 months.” Id. at 8. Therefore,

Appellant posits he suffered manifest injustice.8 We disagree.

            The standard for permitting a defendant to withdraw
            a plea of guilty varies according to the point in the
            proceedings at which the motion to withdraw is
            made. Our Supreme Court has established
            significantly different standards of proof for
            defendants who move to withdraw a guilty plea
            before sentencing and for those who move to
            withdraw a plea after sentencing.

Commonwealth v. Pardo, 35 A.3d 1222, 1226 (Pa. Super. 2011).

      Withdrawal of a guilty plea is not an absolute right. Commonwealth

v. Broaden, 980 A.2d 124, 128 (Pa. Super. 2009). However, a court should

permit a defendant to withdraw a guilty plea prior to sentencing “for any fair

and just reason” provided no substantial prejudice to the Commonwealth

would result. Id.

               [P]ost-sentence motions for withdrawal are
            subject to higher scrutiny since courts strive to
            discourage entry of guilty pleas as sentence-testing
            devices.    A defendant must demonstrate that
            manifest injustice would result if the court were to
            deny his post-sentence motion to withdraw a guilty
            plea. Manifest injustice may be established if the

8
  Appellant addresses both issues in a single argument section.            See
Appellant’s Brief at 5-9.



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            plea was not tendered knowingly, intelligently, and
            voluntarily. In determining whether a plea is valid,
            the court must examine the totality of circumstances
            surrounding the plea. A deficient plea does not per
            se establish prejudice on the order of manifest
            injustice.

Id. at 129 (citations and quotation marks omitted).

      Rule 590 governs plea procedures and provides, inter alia, “[t]he

judge may refuse to accept a plea of guilty or nolo contendere, and shall not

accept it unless the judge determines after inquiry of the defendant that the

plea is voluntarily and understandingly tendered. Such inquiry shall appear

on the record.”    Pa.R.Crim.P. 590(3).    The comment provides a list of

questions the trial court should ask during its inquiry of a defendant

including: “Is the defendant aware of the permissible range of sentences

and/or fines for the offenses charged?” Id. at cmt. The comment further

provides:

            In addition, nothing in the rule would preclude the
            use of a written colloquy that is read, completed,
            signed by the defendant, and made part of the
            record of the plea proceedings. This written colloquy
            would have to be supplemented by some on-the-
            record oral examination.        Its use would not, of
            courts, change any other requirements of law,
            including these rules, regarding the prerequisites of
            a valid guilty plea or plea of nolo contendere.

Id.

      Instantly, Appellant pleaded guilty to the above offenses pursuant to a

general plea.   He specifically acknowledged during his plea colloquy that

there was no agreement as to his sentence, and the trial court, in its


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discretion, would decide his sentence. N.T. Guilty Plea Hr’g at 5. His written

plea petition evidenced Appellant’s awareness that he could be sentenced to

up to twenty years’ imprisonment and of the trial court’s authority to impose

his sentence.9   Guilty Plea Pet. at 2-5. Furthermore, although the original

guideline sentencing form included an error regarding the offense gravity

score for burglary, Appellant had the correct information available to him in

the   presentence   investigation   report,   provided   to   him   days   before

sentencing, and did not seek to withdraw his guilty plea. See N.T. Mot. Hr’g

at 18-19; Broaden, 980 A.2d at 131 (concluding appellant was not entitled

to withdraw his guilty plea when he had notice of the Commonwealth’s

intent to pursue a mandatory minimum sentence after pleading guilty but

opted to proceed with sentencing).

      Based on the foregoing, we conclude the totality of the circumstances

demonstrates Appellant knowingly, intelligently, and voluntarily pleaded

guilty.   Id. at 129; accord Pa.R.Crim.P. 590.       Thus, Appellant has not

demonstrated he suffered manifest injustice, and we affirm his judgment of

sentence. See Broaden, 980 A.2d at 129.

      Judgment of sentence affirmed.




9
 The charges of burglary and robbery were graded as first-degree felonies.
See 18 Pa.C.S. § 1103(a).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/27/2016




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