Commonwealth v. Shaw

245 A.3d 1084 (Table)

COMMONWEALTH of Pennsylvania v. William Edward SHAW, Appellant Commonwealth of Pennsylvania v. William Edward Shaw, Appellant Commonwealth of Pennsylvania v. William Edward Shaw, Appellant Commonwealth of Pennsylvania v. William Edward Shaw, Appellant

No. 1717 WDA 2019

No. 1718 WDA 2019

No. 1719 WDA 2019

No. 1720 WDA 2019

Superior Court of Pennsylvania.

Filed December 18, 2020

Reargument Denied February 26, 2021

MEMORANDUM BY OLSON, J.:

Appellant, William Edward Shaw, appeals from the judgment of sentence entered October 17, 2019, following his guilty pleas entered in the Court of Common Pleas of Washington County. We affirm.

The facts and procedural history of this case are as follows. By way of criminal complaint, the Commonwealth charged Appellant with the following offenses. At CP-63-CR-0000939-2018 (hereinafter, Docket Number 939-2018), the Commonwealth charged Appellant with making terroristic threats. At CP-63-CR-0002460-2018 (hereinafter, Docket Number 2460-2018), the Commonwealth charged Appellant with one count of possession with intent to deliver (PWID) heroin. At CP-63-CR-2284-2018 (hereinafter, Docket Number 2284-2018), the Commonwealth charged Appellant with PWID heroin; PWID cocaine; PWID marijuana; person not to possess a firearm; carrying a firearm without a license; and possession of drug paraphernalia. At CP-63-CR-2274-2018 (hereinafter, Docket Number 2274-2018), the Commonwealth charged Appellant with one count of PWID heroin.

Appellant was set to proceed to a jury trial for Docket Number 2460-2018, Docket Number 2274-2018, and Docket Number 2284-2018, but Appellant requested a non-jury trial for Docket Number 939-2018. The trials for the aforementioned cases were set to commence in July 2019. On July 10, 2019, however, the trial court convened a pre-trial conference during which Appellant entered an open plea in the four underlying cases presently on appeal. The trial court accurately summarized the events of the guilty plea hearing as follows.

On July 1[0], 2019, the [trial c]ourt held an open plea hearing on all four of Appellant's cases. Present at the hearing were [Adam] Yarussi [("Attorney Yarussi")], who represented Appellant, and [Rachel] Wheeler [("Attorney Wheeler")], who represented the Commonwealth. Initially, [Attorney] Yarussi informed the [trial c]ourt that [Attorney Wheeler offered Appellant a global plea and, as such,] Appellant [considered] ... taking an open plea[ ] or the plea [agreement Attorney] Wheeler offered[.] At that time, [Attorney] Wheeler put the global plea offer on the record[.]

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[In sum,] the aggregate sentence offered by the Commonwealth was 101 months to 202 months’ [incarceration].

Thereafter, [Attorney] Yarussi stated that Appellant wanted to know if the [trial c]ourt would "ever go below the range [that] [Attorney] Wheeler offered?" The [trial c]ourt stated that it could not answer a question that way, indicating that the [c]ourt [needed] to review the pre[-]sentence investigation report. [ ] Appellant [then] stated that he was going to take the open plea, however, he was confused about what an open plea would mean for the non-jury trial that was originally scheduled for [D]ocket [N]umber 939[-]2018. Appellant stated, "I was told ... that if I do [not] take a plea on everything then I [am] going to get the maximum [sentence] on everything." Immediately after Appellant's statement, [Attorney] Yarussi reassured Appellant that "[ ] that [was] not true." Thereafter, [Attorney] Wheeler, as well as the [c]ourt, informed Appellant that, if he wanted, he could enter into an open plea at [the remaining dockets,] and still go forward with a non-jury trial at [D]ocket [N]umber 939[-]2018. To clarify any further confusion, the [trial c]ourt engaged in the following [dialogue] with Appellant:

[The court] : I would sentence you on these three cases, and then it depends if you [are] convicted or not - acquitted of terroristic threats. We [would] have to wait and see what happens with that. If you [are] convicted, then I would sentence you on that as well. If you [are] acquitted, there would be no sentence. Do you understand?

[Appellant] : Yes, ma'am:

[The court] : So if you [would] really like to have [a] non-jury trial [at Docket Number 939-2018] and just enter an open plea [at the remaining dockets], you can. There [is] just no guarantee of what the sentence will be.

[Appellant] : No. I understand, ma'am. I understand. Okay, I'll do an open plea on all of them.

[The court] : Okay.

[Appellant] : Even the [non-jury] trial, on all four charges I'll do the open plea to save time because -

[The court] : So you wish to enter an open plea to ... all four cases?

[Appellant] : Yes, ma'am. Yes, ma'am.

[The court] : Okay. So you do not wish to have your non-jury trial on -

[Appellant] : No, ma'am. [...]

[The court] : You [are] going to plead guilty to [terroristic threats]?

[Appellant] : I'm going to - yes, open plea to all of them. Yes, ma'am.

After Appellant made his decision to take an open plea on all four cases, the [c]ourt took a brief recess for Appellant to complete an extensive written colloquy.

Trial Court Opinion, 2/4/20, at 10-12 (internal citations omitted).

Eventually, the court resumed the hearing and Appellant pled guilty to the following: at Docket Number 939-2018, terroristic threats; ¹ at Docket Number 2460-2018, PWID heroin; ² at Docket Number 2274-2018, PWID heroin; and at Docket Number 2284-2018, PWID heroin, PWID marijuana, and PWID cocaine. Thereafter,

the [trial c]ourt underwent an oral colloquy with Appellant to ensure [that he] was entering the open plea voluntarily, knowingly, and intelligently. Specifically, the [trial c]ourt asked if Appellant signed the written colloquy voluntarily, wherein Appellant answered in the affirmative.

Id . at 12.

The Commonwealth then provided the trial court with a brief explanation of the evidence it would have presented at trial for each of Appellant's four cases. Attorney Wheeler stated:

At [Docket] Number 939[-]2018, on October 5, 2017, Latoya Shaw, the victim, came to the Washington [County] Police Department to report that she received a threatening letter from her husband[, Appellant.] She stated that [Appellant] was currently housed at SCI Smithfield. She showed the officers a letter postmarked [October 3, 2017,] from SCI Smithfield from [Appellant] which she received, and it contained several threats that were made to her including, quote, you and that African are dead, b[****], end quote. Several other threats were made in that letter, and the police filed charges.

At [Docket] Number 2460[-2018], on January 27, 2016, officers met with a confidential informant who indicated [he/she] could purchase heroin from [Appellant.] A controlled buy was set up using [Appellant's] cell[ular] phone number. An individual answered the [cellular] phone and set up to purchase heroin from [Appellant]. [Appellant] did arrive at the purchase location and sold to the [confidential informant] a quantity of heroin. And this was in the presence and under the surveillance of other troopers.

At [Docket] Number 2274[-2018], on December 3, 2015, officers met with a confidential informant who indicated [he/she] could purchase heroin from [Appellant]. Again, a controlled purchase was set up. A call was made to [Appellant] in the presence of officers to conduct the controlled purchase. [Appellant] did arrive at the buy location and sold a quantity of heroin to the confidential informant with and under the surveillance of troopers.

Finally, at [Docket] Number 2284[-2018], on March 3, 2016, troopers were called to the Americas Best motel for the report of a domestic with a firearm. When [the] officers arrived, they observed a quantity of a white powered substance, some of the clear plastic baggies contained suspected heroin. They also observed an individual there who had an injury to her face. Upon further investigation[,] officers came to learn that [Appellant] had been present in the hotel room with two women and a child, that a domestic had occurred in which [Appellant] struck the victim, he then fled the scene in a vehicle. Officers conducted an investigation of the vehicle, discovered numerous bags of heroin, a bag of cocaine, a firearm including a magazine as well, and several [cellular] phones, additional substances as well including marijuana. Further investigation revealed that [Appellant] was still fleeing and he eventually was stopped in Bedford County[, Pennsylvania] and within his vehicle were also located the [identifications] of the two females that were in the hotel room.

[Deoxyribonucleic Acid (DNA)] – identification [was] conducted in this case, Your Honor. All of the controlled substances were determined to be what they are, and the DNA on the firearms matched [Appellant's] in this case. Officers filed the charges as to all of these substances and items located within the motel room and within the vehicle.

N.T. Guilty Plea Hearing, 7/10/19, at 13-15. Following the Commonwealth's proffer,

the [trial c]ourt asked Appellant if he was "[w]illing to waive [his] right to a jury and non-jury trial that he was scheduled for and enter an open plea." Again, Appellant answered in the affirmative. Thereafter, the [trial c]ourt accepted Appellant's open plea for all four cases.

Trial Court Opinion, 2/4/20, at 12.

On July 18, 2019, shortly after entering his guilty pleas but before sentencing, Appellant filed a motion to withdraw his guilty plea. In his motion, Appellant stated that, at the time he entered his plea, Appellant felt "intimidated by [ ] Attorney [Wheeler]" and he "did not provide counsel with one of the four grounds to withdraw the guilty plea." Appellant's Motion to Withdraw Guilty Plea, 7/18/19, at 3. That same day, the trial court denied Appellant's motion. Thereafter, Appellant filed a motion for reconsideration. The trial court granted reconsideration on July...