Commonwealth v. Grimes

COMMONWEALTH OF PENNSYLVANIA v. PRESTON ROBERT GRIMES Appellant

J-S79006-18

No. 728 MDA 2018

SUPERIOR COURT OF PENNSYLVANIA

MARCH 7, 2019

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence June 22, 2011

In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0006368-2010

BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:

Appellant, Preston Robert Grimes, appeals nunc pro tunc from the June 22, 2011 judgment of sentence. We affirm.

This matter is a procedural morass.¹ By information filed on December 2, 2010, Appellant was charged with multiple crimes relating to his robbery of a bank on October 4, 2010, in York, Pennsylvania.² Information, 11/30/10.Appellant entered an open plea of nolo contendere³ on April 21, 2011, to one count of robbery, 18 Pa.C.S. § 3701(a)(1)(ii). The trial court sentenced him on June 22, 2011, to a term of incarceration of ten to twenty years. Appellant did not file a direct appeal. Appellant filed a motion to modify sentence on June 24, 2011, two days after being sentenced, which was docketed as "Pro Se Correspondence." Appellant also filed, pro se, a motion to withdraw his guilty plea on July 7, 2011. Appellant's Brief at 5. The docket entries indicate its filing as follows: "Pro Se Correspondence, Comments: Request to W/D Plea, Sent to DA and PD—Attny Thompson 7-8-11." Trial Court Docket Entries, 7/7/11.

A prior panel of this Court continued the procedural history as follows:

On June 27, 2011,⁴ Appellant filed his first pro se [Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546] petition. Appointed counsel filed a supplemental petition on July 26, 2011.⁵ Following a hearing, the [PCRA] court denied thepetition. Appellant timely appealed. While Appellant's appeal was still before this Court, Appellant filed his second and third PCRA petitions on September 7, 2011[,] and July 16, 2012, respectively. The PCRA court dismissed the petitions on the same day[] that they were filed for lack of jurisdiction due to the pending appeal.

On April 23, 2012, this Court affirmed the PCRA court's denial of Appellant's first PCRA petition[,] and Appellant did not seek review in our Supreme Court. (See Commonwealth v. Grimes, 48 A.3d 483 (Pa. Super. 2012) (unpublished memorandum)). On August 23, 2012, Appellant filed his fourth PCRA petition[,] and the PCRA court sent Appellant a [Pa.R.Crim.P.] 907 notice of its intention to dismiss the petition because the issues raised therein already had been litigated and decided. On September 17, 2012, the PCRA court formally dismissed Appellant's fourth PCRA petition on this basis.

On September 28, 2012, Appellant filed his fifth pro se PCRA petition. The PCRA court forwarded a Rule 907 notice to Appellant on October 5, 2012, and denied Appellant's petition on October 29, 2012, on the bases that Appellant's issues had been previously litigated and that he failed to demonstrate "that the proceedings resulting in his conviction were so unfair that a miscarriage of justice occurred which no civilized society can tolerate, or that he is innocent of the crimes charged." (PCRA Court Rule 907 Notice, 10/05/12, at unnumbered page 2 (citation omitted); see also PCRA Court Order, 10/29/12, at 1).

Commonwealth v. Grimes, 75 A.3d 553, 2026 MDA 2012 (Pa. Super. filed April 12, 2013) (unpublished memorandum at 2-3) (footnote omitted). Appellant filed a timely appeal to this Court, wherein we concluded the PCRA petition was untimely and no exception to the time-bar applied. Thus, we affirmed the order denying Appellant's fifth petition on April 12, 2013. Grimes, 75 A.3d 553.

The ensuing procedural history continued as follows:

On April 29, 2013, Appellant filed a federal Habeas Corpus Petition which was addressed by the Third Circuit Court ofAppeals.⁶ The Third Circuit Court of Appeals initially denied the Habeas Petition but later remanded [to the District Court] for resolution of whether Appellant was entitled to have his direct appeal rights re-instated. On December 4, 2015, a hearing was held before Magistrate Judge Carlson, at which time the parties stipulated to re-instate Appellant's direct appeal rights. As such, Magistrate Judge Carlson entered a Report and Recommendation that recommended that the District Court enter an Order approving the reinstatement of Appellant's direct appeal rights. On January 4, 2016, District Judge Robert D. Mariani adopted Magistrate Judge Carlson's recommendations and granted Appellant's Habeas Corpus Petition.

Pa.R.A.P. 1925(a) Opinion, 1924 MDA 2016, 11/6/17, at 2-3.⁷

Thus, following the federal court's grant of Appellant's habeas corpus petition, the Commonwealth, on February 2, 2016, filed a motion to reinstate Appellant's direct appeal rights and to appoint counsel to assist Appellant in its preparation. The trial court granted the Commonwealth's motion on February 3, 2016, reinstated Appellant's direct appeal rights, and appointed Chris Moore, Esquire, as counsel. Appellant filed a timely notice of appeal to this Court, docketed at 285 MDA 2016. For reasons not clear in the record, the trial court removed Attorney Moore as counsel and appointed JenniferSmith, Esquire, on March 24, 2016. Attorney Smith filed an amended Pa.R.A.P. 1925(b) statement on April 25, 2016, but failed to file an appellate brief on Appellant's behalf. On October 6, 2016, this Court dismissed the appeal docketed at 285 MDA 2016 because Attorney Smith failed to file an appellate brief.

On November 7, 2016, Appellant again filed a counseled petition to reinstate appellate rights in which Attorney Smith explained that she inadvertently failed to place this Court's briefing schedule on her calendar. Thus, counsel sought reinstatement of Appellant's direct appeal rights, which the trial court granted on November 9, 2016. Inexplicably, Appellant, pro se, filed a PCRA petition seeking reinstatement of his appellate rights on November 22, 2016. On November 29, 2016, the PCRA court dismissed the petition as moot, noting that Attorney Smith had already filed both a notice of appeal and a Pa.R.A.P. 1925(b) statement on November 23, 2016. Order, 11/29/16, at 1; Pa.R.A.P. 1925(a) Opinion, 11/6/17, at 1. This appeal was docketed at 1924 MDA 2016. Unbelievably, inactivity again reared its ugly head, and on March 19, 2018, this Court dismissed the appeal because Attorney Smith again failed to file an appellate brief. Order, 3/19/18, at 1.

On March 27, 2018, Appellant filed a pro se Memorandum of Law in which he requested the appointment of new counsel. The PCRA court removed Attorney Smith as counsel and appointed present counsel, Lori Yost, Esquire. Order, 3/28/18, at 1; Order, 3/29/18, at 1. The PCRA court reinstatedAppellant's direct appeal rights on March 28, 2018. Appellant filed another PCRA petition on April 3, 2018, which the PCRA court dismissed on April 10, 2018, pointing out that because it had reinstated Appellant's direct appeal rights on March 28, 2018, the PCRA petition was premature.

Attorney Yost filed the instant notice of appeal on April 27, 2018, at the present docket number, 728 MDA 2018. Appellant filed a Pa.R.A.P. 1925(b) statement on May 16, 2018, and the trial court filed its Rule 1925(a) opinion on July 13, 2018.

Appellant raises the following issues for our review:

I. Whether the trial court abused its discretion in failing to rule on Appellant's motion to withdraw his plea as Appellant's plea was not knowing, voluntary and intelligent.

II. Whether the trial court abused its discretion in failing to rule upon Appellant's motion to modify sentence.

Appellant's Brief at 4 (unnecessary capitalization omitted).

In assessing challenges to the validity of a guilty plea, we are guided by the following standard of review. "Pennsylvania law makes clear that by entering a plea of guilty, a defendant waives his right to challenge on direct appeal all nonjurisdictional defects except the legality of the sentence and the validity of the plea." Commonwealth v. Monjaras-Amaya, 163 A.3d 466, 468 (Pa. Super. 2017); Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa. Super. 2013). "Our law presumes that a defendant who enters a guilty plea was aware of what he was doing. He bears the burden of proving otherwise." Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011)(citation omitted). Post-sentence motions for withdrawal "are subject to higher scrutiny since courts strive to discourage entry of guilty pleas as sentence-testing devices." Commonwealth v. Kehr, 180 A.3d 754, 757 (Pa. Super. 2018) (quoting Commonwealth v. Broaden, 980 A.3d 124, 129 (Pa. Super. 2009)). 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. Kehr, 180 A.3d at 757.

Our Supreme Court recently discussed an appellant's burden to show that a trial court abused its discretion in a ruling:

"When a trial court comes to a conclusion through the exercise of its discretion, there is a heavy burden on the appellant to show that this discretion has been abused." Commonwealth v. Eichinger, 591 Pa. 1, 915 A.2d 1122, 1140 (2007) (citation omitted). An appellant cannot meet this burden by simply persuading an appellate court that it may have reached a different conclusion than that reached by the trial court; rather, to overcome this heavy burden, the appellant must demonstrate that the trial court actually abused its discretionary power. Id. "An abuse of discretion will not be found based on a mere error of judgment, but rather exists where the trial court has reached a conclusion which overrides or misapplies the law, or where the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will." Id. Absent an abuse of that discretion, an appellate court should not disturb a trial court's ruling. Id.

Norton, ___ A.3d at ___, 2019 WL 287153 at *7.

Furthermore, it is settled...