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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

DEVANTAE BENSON

                            Appellant                    No. 213 WDA 2016


            Appeal from the Judgment of Sentence January 12, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0009546-2015


BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.:                           FILED NOVEMBER 1, 2016

        Devantae Benson appeals from the judgment of sentence entered in

the Court of Common Pleas of Allegheny County. After careful review, we

affirm.

        Benson entered a guilty plea to one count each of Possession with

Intent to Deliver (Heroin)1 and Conspiracy.2 The court sentenced Benson to

one (1) year less one day to two (2) years less two days’ incarceration,

followed by three years’ probation.            After sentencing was pronounced,

Benson orally sought to withdraw his plea, stating several times that he was



____________________________________________


1
    35 P.S. § 780-113(a)(3).
2
    18 Pa.C.S. § 903(c).
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“confused” and did not understand what was going on.                The trial court

denied the motion.

      On appeal, Benson claims the court erred in denying his motion to

withdraw. He argues that because “the plea was entered when Mr. Benson

suffered from confusion from his mental illness” that his plea was not

knowing or intelligent and, therefore, this established manifest injustice.

We disagree.

      There is no absolute right to withdraw a guilty plea, and the decision

as to whether to allow a defendant to do so is a matter within the sound

discretion of the trial court. Commonwealth v. Muhammad, 794 A.2d 378,

382 (Pa. Super. 2002).       After sentencing, “a showing of prejudice on the

order of manifest injustice” is required before withdrawal is properly

justified.   Commonwealth v. Shaffer, 446 A.2d 591, 593 (Pa. 1982),

quoting Commonwealth v. Starr. 301 A.2d 592, 595 (Pa. 1973).                    “[A]

manifest     injustice   occurs   when   a   plea   is   not   tendered   knowingly,

intelligently, voluntarily, and understandingly.” Commonwealth v. Gunter,

771 A.2d 767, 771 (Pa. 2001). In determining whether a plea is valid, the

court must examine the totality of the circumstances surrounding the plea.

Commonwealth v. Broaden, 980 A.2d 124, 129 (Pa. Super. 2009).

Further, post-sentence motions for withdrawal are subject to higher scrutiny

since courts strive to discourage the entry of guilty pleas as sentencing-

testing devices.     Commonwealth v. Kelly, 5 A.3d 370, 377 (Pa. Super.

2010).

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      The Pennsylvania Rules of Criminal Procedure mandate pleas be
      taken in open court and require the court to conduct an on-the-
      record colloquy to ascertain whether a defendant is aware of his
      rights and the consequences of his plea. Under Rule 590, the
      court should confirm, inter alia, that a defendant understands:
      (1) the nature of the charges to which he is pleading guilty; (2)
      the factual basis for the plea; (3) he is giving up his right to trial
      by jury; (4) [] the presumption of innocence; (5) he is aware of
      the permissible ranges of sentences and fines possible; and (6)
      the court is not bound by the terms of the agreement unless the
      court accepts the plea. The reviewing Court will evaluate the
      adequacy of the plea colloquy and the voluntariness of the
      resulting plea by examining the totality of the circumstances
      surrounding the entry of that plea.

Commonwealth v. Prendes, 97 A.3d 337, 352–53 (Pa. Super. 2014)

(citations omitted).

      Thus, in order to establish manifest injustice, Benson must show that

his guilty plea was not knowing, intelligent or voluntary.       Here, the court

conducted a guilty plea colloquy on January 12, 2016.           The court asked

Benson if he had taken any medications, drugs or alcohol in the last 24

hours that would impair his ability to understand or respond to the court’s

questions, or if he had any “mental illness, mental infirmity and/or physical

infirmity that would impair”     his ability to understand or respond to the

court’s questions. Benson replied, “No, Your Honor.” N.T. Guilty Plea and

Sentencing, 1/12/16, at 5-6.

      Benson acknowledged that he faced a maximum sentence of 15 years

imprisonment and/or a fine of $250,000 for each offense.             Id. at 6-7.

Additionally, Benson signed an eleven-page guilty plea colloquy form,

initialed each page of the form, stated that he had read each question and


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understood each question, and stated that he answered the questions

“honestly and truthfully.” Id. at 7-8.

        At the conclusion of the recitation of the facts that the Commonwealth

was prepared to prove (undercover officers conducted a controlled buy of

$120 worth of heroin), Benson stated that he was entering his guilty plea

because he was, in fact, guilty. Id. at 10. The court proceeded immediately

to sentencing.

        The court sentenced Benson to a county sentence of imprisonment of

one (1) year less one day to two (2) years less two days.            The court

specifically noted it was “going below the mitigated range,” id. at 23, in light

of the fact that Benson’s counsel informed the court that Benson had several

mental health diagnoses (bipolar disorder, depression, anxiety and post-

traumatic stress disorder (PTSD)).       Id. at 15.   The court also sentenced

below    the   mitigated   range   to   accommodate    Benson’s   release   after

incarceration to a mental health/substance abuse community related

rehabilitation program. Id. at 15-16, 23-24.

        As indicated above, Benson fully participated in a verbal and written

colloquy and was represented by counsel throughout the plea proceedings.

The court conducted a thorough colloquy and went out of its way to

accommodate Benson with respect to his mental health issues.            Benson

admitted his guilt and acknowledged his understanding that he faced a

sentence of up to fifteen years’ imprisonment on each count.        It was only




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after the court had pronounced the sentenced that Benson stated he was

confused.

     Before withdrawal of guilty plea after sentencing is justified, some

demonstration must be made that the plea was not voluntary or that the

plea was entered without knowledge of the charge such that refusing to

allow the petitioner to withdraw his plea would amount to a manifest

injustice. Commonwealth v. Shaffer, 446 A.2d 591 (Pa. 1982). Benson

has made no such showing. If a plea of guilty could be retracted with ease

after sentencing, the accused might be encouraged to plead guilty to test

the weight of potential punishment, and withdraw the plea if the sentence

were unexpectedly severe. Starr, supra. Further, this Court has held that

“a person who elects to plead guilty is bound by the statements he makes in

open court while under oath and he may not later assert grounds for

withdrawing the plea which contradict the statements he made at his plea.”

Commonwealth v. Turetsky, 925 A.2d 876, 880 (Pa. Super. 2007), citing

Commonwealth v. Stork, 737 A.2d 789, 790-91 (Pa. Super. 1999).

     Here, there is no indication in the record before us that Benson’s

counseled written and oral pleas were involuntary. There is nothing in the

record prior to sentencing that indicates Benson was confused about

anything. It was only after pronouncement of sentence that Benson claimed

confusion.    Benson’s post-sentence assertion that his guilty plea was

unknowing, unintelligent or involuntary is refuted by the record and,




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therefore, we discern no manifest injustice that would permit him to

withdraw it.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/1/2016




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