Commonwealth v. Weir – Nos. 4868-2011, 4872-2011A, 3244-2012, 3251-2012, 3253-2012A, 3327-2012, 4003-2013 – Ashworth, J. – March 28, 2014 – Criminal –

Burglary – Theft – Conspiracy – Criminal Attempt at Escape – Alford Plea – Pa. R.A.P. 1925(a) Opinion – Considering all the circumstances attendant to the plea, including the adequacy of the plea colloquy, Appellant’s responses therein, and the representations by defense counsel, the nolo contendere plea was knowing, voluntary and intelligent and Appellant’s post sentence request to withdraw his guilty plea was properly denied.

IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA

C R I M I N A L COMMONWEALTH OF PENNSYLVANIA : Nos. 4868-2011, 4872-2011A, : 3244-2012, 3251-2012 v. : 3253-2012A, 3327-2012, : 4003-2013 DWAYNE ARMAND WEIR :

OPINION SUR PA. R.A.P. 1925(a)

BY: ASHWORTH, J., MARCH 28, 2014

Dwayne Armand Weir has filed a direct appeal to the Superior Court of

Pennsylvania from the judgment of sentence imposed on December 20, 2013, and the

subsequent order of this Court entered on February 18, 2014, denying Appellant’s post

sentence motion. This opinion is written pursuant to Rule 1925(a) of the Pennsylvania

Rules of Appellate Procedure.

I. Background

The relevant facts and the procedural history of these cases may be summarized

as follows. On July 13, 2010, the Pennsylvania State Police investigated a residential

burglary at 3094 Meadow View Road in Rapho Township, Lancaster County. The

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suspect forcibly entered the residence through a basement door and removed all

copper plumbing pipes from the basement and removed baseboard heating covers and

also cut copper pipes. The damage to the residence was in excess of $10,985.00 and

the theft was in excess of $5,200.00 worth of copper piping. Through the investigation,

the police located physical evidence at the scene consisting of blood droplets

throughout the residence. These droplets were from the suspect who injured himself

in the commission of the crime. Forensic analysis determined that the blood evidence

from the scene was a match for Appellant. As a result, Appellant was charged at

Information No. 5807-2012 with burglary (F1), criminal mischief (F3), and theft by

unlawful taking – movable property (M1).1

On April 2, 2011, the Susquehanna Regional Police Department investigated a

residential burglary at 4858 Marietta Avenue, East Donegal Township, Lancaster

County. The suspect forcibly entered the residence through a rear kitchen window.

The residence was completely ransacked and items with an estimated value of

$12,790.00 were stolen, including electronics, coins, jewelry, camera, laptop, clothing,

food and alcoholic beverages. On August 15, 2011, stolen property from the Marietta

Avenue residence was recovered from 306 Rivermoor Drive, East Donegal Township, a

residence associated with Appellant. (Notes of Testimony (N.T.), Guilty Plea at 49-50.)

On April 28, 2011, the Susquehanna Regional Police Department investigated a

residential burglary at 1104 Anderson Ferry Road, East Donegal Township, Lancaster

County. The suspect forcibly entered the residence through a rear door. The

118 Pa. C.S.A. § 3502(a), 18 Pa. C.S.A. § 3304(a)(5), and 18 Pa. C.S.A. § 3921(a),

respectively.

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residence was completely ransacked and items with an estimated value of $5,520.00

were stolen, including electronics, a shotgun, toaster, food, DVDs, hand drills, tool box,

saber saw, circular saw and other tools. On August 17, 2011, property found at

Appellant’s residence was identified as stolen from the Anderson Ferry Road property.

(N.T., Guilty Plea at 51-52.)

On August 11, 2011, the Susquehanna Regional Police Department investigated

a burglary at 816 Musser Road, East Donegal Township, Lancaster County. The

suspect entered the barn on the property through an unsecured door which had been

damaged previously and not yet repaired. Items estimated in excess of $1,500.00

were removed from the barn. (N.T., Guilty Plea at 62.) On August 15, 2011, some of

the stolen property was recovered from Appellant’s residence and identified by the

owners as their property. (Id. at 62-63.)

These three burglaries formed the basis for the charges at Information No.

3327-2012A: two counts of burglary (F1); one count of burglary (F2); two counts of theft

by unlawful taking – movable property (F3); one count of theft by unlawful taking –

movable property (F2); two counts of theft by unlawful taking – movable property (M1);

two counts of criminal conspiracy (F1); one count of criminal conspiracy (F2); and one

count of person not to possess a firearm (F2).2 Appellant was also charged at this

Information with three counts of receiving stolen property (M1),3 after property

recovered from Appellant’s residence at 306 Rivermoor Drive and from a storage unit at

218 Pa. C.S.A. § 3502(a), 18 Pa. C.S.A. § 3921(a), 18 Pa. C.S.A. § 903(a)(1), and 18 Pa.

C.S.A. § 6105(a)(1), respectively.

318 Pa. C.S.A. § 3925(a).

4

1505 River Road was identified as stolen property from three separate burglaries

reported to the Columbia Borough Police and the Northwest Regional Police. (See

N.T., Guilty Plea at 69-70.) The stolen property included Harley Davidson boots,

electronics, jewelry and coins valued at over $1,100.00, electronics and a backpack

valued at $300.00, and two knives and an antique projector, valued at $1,865.00. (See

Criminal Complaint.)

On July 20, 2011, the Pennsylvania State Police investigated a residential

burglary at 365 Route 194 North, Abbottstown, Adams County. The suspect forcibly

entered the residence through a rear door and removed food, shampoo, towels, a GPS,

jewelry and a laptop, in excess of $5,200.00. (N.T., Guilty Plea at 53-54.) The stolen

laptop was equipped with software that could monitor the location and activity of the

computer. (Id. at 54.) On August 1, 2011, it was determined that the laptop was

utilizing a wireless internet connection in the Rivermoor Development in Marietta, East

Donegal Township. At the time, Appellant was living at 306 Rivermoor Drive in

Marietta. (Id. at 54-55.) The software was able to further determine that various

facebook accounts had been accessed, including those belonging to Appellant, Kevin

Love, a known associate of Appellant’s, and other unnamed minors associated with

Appellant. (Id. at 55; see also Criminal Complaint.) On August 5, 2011, Appellant’s

son, Dwayne Charles Weir, was arrested with stolen property, including the GPS taken

from this burglary in Adams County. (See Criminal Complaint.) As a result, Appellant

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was charged at Information No. 3244-2012 with burglary (F1), criminal conspiracy (F1),

and theft by unlawful taking – movable property (F3).4

418 Pa. C.S.A. § 3502(a), 18 Pa. C.S.A. § 903(a), and 18 Pa. C.S.A. § 3921(a),

respectively.

On August 2, 2011, a residential burglary occurred in Lebanon County. Food,

clothing and various toiletry items were taken, in addition to four rifles and shotguns, a

revolver, a coin collection, jewelry, and a DVD player, totaling $7,000.00. (N.T., Guilty

Plea at 56.) Multiple stolen items were later recovered from Appellant and identified by

the victim. (Id. at 58.) On February 24, 2012, fingerprints recovered from the scene

were identified as palm prints belonging to Kevin Love. (See Criminal Complaint.)

On August 4, 2011, a residential burglary occurred at 100 Mt. Pleasant Road in

Rapho Township, Lancaster County. The suspect forcibly entered the residence

through a rear window and ransacked the home. Items of food were taken from the

refrigerator and freezer, as well as clothing, shoes, soap, cleaning supplies, paper

towels and toilet paper. A gun cabinet was cut open and five rifles were removed.

Also stolen from the home was a Bose sound system, a camcorder, money, jewelry,

camera, and drill, in excess of $10,000.00. (N.T., Guilty Plea at 59.) Items of property

stolen from this residence were later recovered in Appellant’s possession at 306

Rivermoor Drive. (Id. at 59-60.)

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On August 8, 2011, the Pennsylvania State Police investigated a residential

burglary at 2689 Iron Bridge Road in Rapho Township, Lancaster County. The

suspect forcibly entered the residence through a side basement door and removed a

gun safe, four rifles and one shotgun, computers, GPS devices, a television, money,

jewelry, camera, savings bonds, a home theater system, food, clothing and beverages,

in excess of $7,500.00. (N.T., Guilty Plea at 60-61.) An extensive amount of this

stolen property was later recovered in Appellant’s possession at 306 Rivermoor Drive.

(Id. at 61.)

On the basis of these three burglaries, Appellant was charged at Information No.

3253-2012A with three counts of burglary (F1), two counts of criminal conspiracy (F1),

15 counts of theft by unlawful taking – movable property (F2), three counts of theft by

unlawful taking – movable property (F3), two counts of criminal mischief (M3), and three

counts of person not to possess firearm (F2).5 Appellant was also charged at this

Information with two counts of receiving stolen property (M1),6 after property recovered

from Appellant was identified as stolen property from two separate burglaries in Rapho

Township. (See N.T., Guilty Plea at 69-70.) One related to a burglary in May 2011 at

Fahnestock Excavating, where various DeWalt tools, valued at approximately $700.00,

were stolen from this business. (Id.; see also Criminal Complaint.) The other burglary

was of a residence in April 2011, where a large amount of jewelry and electronics were

stolen. (Id.; see also Criminal Complaint.)

518 Pa. C.S.A. § 3502(a), 18 Pa. C.S.A. § 903(a), 18 Pa. C.S.A. § 3921(a), 18 Pa. C.S.A.

§ 3304(a)(1),18 Pa. C.S.A. § 6105(a)(1), respectively.

618 Pa. C.S.A. § 3925(a).

7

On August 15, 2011, the Susquehanna Regional Police Department was

assisting the United States Marshall’s Fugitive Apprehension Unit with a warrant service

on Appellant at 306 Rivermoor Drive in East Donegal Township. (N.T., Guilty Plea at

64; see also Criminal Complaint.) During the warrant service attempt, Appellant

escaped from his apartment into an adjoining apartment by breaking through the

drywall ceiling, crawling onto the roof rafters and forcing his way into the neighbor’s

apartment while she slept. (Id. at 64-65.) Appellant then fled the apartment complex

on foot. (Id. at 65.) He came upon an individual at his residence and asked for a ride.

When the individual became suspicious and started to call 911, Appellant entered the

truck, which had the keys in the ignition, and made off with the vehicle. (Id. at 65.)

Appellant eventually abandoned this first truck and stole another. (N.T., Guilty

Plea at 66.) In an attempt to elude police, Appellant drove the stolen truck at an

excessive rate of speed on township roads before entering a private farm lane and

driving through corn fields, causing damage to the private property of approximately

$1,000.00. (Id.)

This second stolen truck was also abandoned and Appellant fled on foot to 4586

Fairview Road, Columbia, where he forcibly entered the residence and stole the

homeowner’s pick up truck, in addition to cash, boots, a phone, beer, wine and food,

totaling $20,190.00. (N.T., Guilty Plea at 66-67.) Appellant evaded capture by the

police on August 15, 2011. On August 23, 2011, the Penn Township Police

Department recovered the stolen truck in a cornfield. (Id. at 67.)

As part of the police investigation after Appellant fled his apartment on foot,

vehicles in the parking lot of Appellant’s apartment complex were checked, and it was

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determined that a 2003 Chevrolet Trailblazer was reported stolen from Franklin County.

Appellant had been in possession of the stolen vehicle.

As a result of these actions on August 15, 2011, Appellant was charged at (1)

Information No. 4868-2011 with two counts of theft by unlawful taking (F3), fleeing or

attempting to elude police (F3), agricultural vandalism (M1), trespass by motor vehicle

(S), and reckless driving (S),7 (2) Information No. 4872-2011A, with burglary (F1), flight

to avoid apprehension (F3), escape (M2), theft by unlawful taking – movable property

(F3), driving while operating privilege is suspended (S), and receiving stolen property

(F3),8 and (3) Information No. 3251-2012 with burglary (F1), and theft by unlawful

taking – movable property (F3).9

Appellant was on the run from August 15, 2011, until his capture in Dauphin

County by the Special Operations Team of the Pennsylvania State Police on August 29,

2011. At that time, he was apprehended in a vehicle with his co-conspirator, Kevin

Love, and both suspects were armed. (N.T., Guilty Plea at 68.) Before being taken,

Appellant put the vehicle in gear and accelerated into a State Police vehicle, causing

the officers to discharge their firearms. Appellant was not struck by a bullet but, during

the ensuing fight, he did have to be tasered in order to be taken into custody. (Id. at

68-69.)

718 Pa. C.S.A. § 3921(a), 75 Pa. C.S.A. § 3733(a), 18 Pa. C.S.A. § 3309(a), 75 Pa.

C.S.A. § 3717(a), and 75 Pa. C.S.A. § 3736(a), respectively.

818 Pa. C.S.A. § 3502(a), 18 Pa. C.S.A. § 5126(a), 18 Pa. C.S.A. § 5121(a), 18 Pa.

C.S.A. § 3921(a), 75 Pa. C.S.A. § 1543(a), and 18 Pa. C.S.A. § 3925(a), respectively.

918 Pa. C.S.A. § 3502(a), and 18 Pa. C.S.A. § 3921(a), respectively.

9

Following his arrest, the Pennsylvania State Police interviewed Appellant on

August 30, 2011. At that time, Appellant waived his Miranda rights and admitted to

burglarizing homes in East Donegal and Rapho Townships, as well as others in the

County. Kevin Love was also interviewed on August 30, 2011, and confessed to

several burglaries and to selling some of the stolen items. During police interviews on

August 31, 2011, and October 11, 2011, Violet Martin admitted to being present at

several burglaries with Appellant and Kevin Love. (See Criminal Complaints; N.T.,

Guilty Plea at 52-53.)

On May 23, 2013, while being housed in the Lancaster County Prison awaiting

disposition of his charges, Appellant was found to be in possession of a rope ladder,

approximately 17 feet in length, fashioned out of bed sheets. The rope ladder was

wrapped around Appellant’s body under his clothing and was discovered during a body

search. (N.T., Guilty Plea at 70-71; N.T., Guilty Plea/Sentencing/Probation Violation at

7-10.) A second rope fashioned out of bed sheets was found inside Appellant’s cell.

(N.T., Guilty Plea/Sentencing/Probation Violation at 8.) This rope was approximately

36 feet in length. (See Criminal Complaint.) Consequently, Appellant was charged at

Information No. 4003-2013 with criminal attempt at escape (F3), and possession of

implements for escape (M1).10

After at least seven continuances, Appellant chose to go to trial on the 2010

burglary charges docketed at No. 5807-2012. On July 11, 2013, following a two-day

10

18 Pa. C.S.A. § 901(a), and 18 Pa. C.S.A. § 5122(a)(2), respectively.

10

jury trial, Appellant was found guilty of burglary, criminal mischief, and theft by unlawful

taking. Sentencing was deferred to allow for a presentence investigation report.

Appellant then appeared for trial on August 28, 2013, on Docket Nos.

4868-2011, 4872-2011, 3244-2012, 3251-2012, 3253-2012, and 3327-212. The Court

first addressed Appellant’s motion to sever the separate burglaries for trial.11

(See

N.T., Guilty Plea at 2-4.) After hearing argument by the parties, this motion was

denied. (Id. at 5.) The Court then asked the parties to place on the record the status

of any plea negotiations. (Id.) Following this discussion between the Court, Appellant

and counsel, Appellant elected to resolve all of the remaining 2011 and 2012 criminal

charges with an Alford12

plea.

Following an extensive on-the-record colloquy, the Court found that Appellant

was entering a knowing, voluntary and intelligent nolo contendere plea and, therefore,

the plea was accepted by the Court. (N.T., Guilty Plea at 74, 76.) The Court ordered

that the presentence investigation report that had been ordered following the jury

verdict on Docket No. 5807-2012 be supplemented as necessary to address these new

charges. On October 18, 2013, Appellant filed a motion requesting a psychological

11

Appellant filed an Omnibus Pretrial Motion on August 16, 2013, seeking to sever the burglaries and to have them tried separately. An order was entered on that date scheduling a hearing on the motion immediately prior to trial.

12The Alford plea derives its name from the United States Supreme Court decision in North Carolina v. Alford, 400 U.S. 25 (1970). The

Alford Plea is substantially similar to the practice in Pennsylvania on nolo contendere pleas. See Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591

(1982).

11

evaluation and a continuance of the sentencing then scheduled for October 23, 2013.

Both requests were granted.13

13

In fact, rather than a psychological evaluation, a comprehensive forensic psychiatric evaluation was performed by Jerome I. Gottlieb, M.D., and served on the Court on November 12, 2013.

On December 20, 2013, Appellant stood for sentencing. The Court first

addressed the 2011 and 2012 nolo contendere pleas. At Docket No. 4872-2011A

Appellant received consecutive sentences of one to three years’ incarceration on the

charge of burglary, nine months to two years on the charge of flight to avoid

apprehension, one month to one year on the charge of escape, nine months to two

years on the charge of theft by unlawful taking, and two months to two years on the

charge of receiving stolen property. Thus, Appellant received an aggregate sentence

of 33 months to 10 years’ incarceration. (N.T., Guilty Plea/Sentencing/Probation

Violation at 43-44.) The burglary sentence was also made consecutive to the sentence

at No. 4868-2011. (Id. at 44.) Restitution was ordered in the amount of $8,445.84,

plus fines and costs. (Id. at 47.)

At Docket No. 4868-2011, Appellant was sentenced to nine months to two years’

incarceration for each of the two counts of theft by unlawful taking, and the charge of

fleeing and eluding police, as well as six months to one year for agricultural vandalism.

(N.T., Guilty Plea/Sentencing/Probation Violation at 42.) These sentences were made

consecutive to one another for an aggregate sentence of 33 months to 7 years’

incarceration. (Id. at 43.) The sentence of nine months to two years for the first count

of theft by unlawful taking was made consecutive to the sentence imposed at No.

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3327-2012. (See Sentencing Order.) Fines were imposed for the summary offenses.

(Id. at 42-43.) Restitution was ordered in the amount of $1,000.00, plus fines and

costs. (Id. at 47.)

At Docket No. 3244-2012, a concurrent sentence of 16 months to 3 years’

incarceration for the burglary charge, and 1 year to 3 years for the criminal conspiracy

was imposed. The charge of theft by unlawful taking merged for sentencing purposes

with the burglary charge. (N.T., Guilty Plea/Sentencing/Probation Violation at 38-39.)

The sentence for the conspiracy charge was made consecutive to the sentence at No.

5807-2012. (See Sentencing Order of December 20, 2013.)

At Docket No. 3251-2012, Appellant received a sentence of 16 months to 3

years’ incarcaration for the burglary charge, and the charge of theft by unlawful taking

merged for sentencing purposes with the burglary charge. (N.T., Guilty

Plea/Sentencing/Probation Violation at 39.) The sentence was made consecutive to the

sentence at No. 4872-2011. (See Sentencing Order of December 20, 2013.)

Restitution was ordered in the amount of $3,295.30, plus fines and costs. (N.T., Guilty

Plea/Sentencing/Probation Violation at 39.)

At Docket No. 3253-2012A, Appellant was sentenced to one year to three years’

incarceration for each of the three burglary charges, one year to three years for each of

the two criminal conspiracy charges, two months to two years for each of the two

receiving stolen property charges, one month to one year for each of the two criminal

mischief charges, and two and one-half years to five years for each of the three

possession of firearms charges. The 15 counts of theft by unlawful taking (F2) and the

3 counts of theft by unlawful taking (F3) merged for sentencing purposes with the

13

burglary charge in Count 1. (N.T., Guilty Plea/Sentencing/Probation Violation at 39-40,

53-54.) The burglary sentences for Counts 1 through 3 were made consecutive to

each other and the burglary sentence for Count 1 was made consecutive to the

possession of firearms charge in Count 29. (See Sentencing Order of December 20,

2013.) The sentences imposed for the offenses of conspiracy, receiving stolen

property, and criminal mischief were all concurrent. The possession of firearms

charges were made concurrent to each other but consecutive to Docket No. 3244-2012.

(Id.) The aggregate sentence for Docket No. 3253-2012 was 66 months to 14 years’

incarceration. (N.T., Guilty Plea/Sentencing/Probation Violation at 40-41.) Restitution

was ordered in the amount of $32,582.94, plus fines and costs. (Id. at 46.)

At Docket No. 3327-2012A, the following sentence was imposed: a sentence of

one year to three years’ incarceration for the two felony one burglary charges; six

months to one year for the felony two burglary charge; one year to three years for the

two felony one criminal conspiracy charges; six months to one year for the felony two

criminal conspiracy charge; six months to one year for each of the three receiving

stolen property charges; and two and one-half years to five years for person not to

possess firearm. The theft by unlawful taking – movable property charges merged for

sentencing purposes. (N.T., Guilty Plea/Sentencing/Probation Violation at 41-42.)

The sentences for the three burglary charges and the person not to possess firearm

charge were consecutive to each other and the remaining sentences were concurrent

for a total aggregate sentence of 60 months to 12 years’ incarceration. (Id. at 42.)

Restitution was ordered in the amount of $7,758.48, plus fines and costs. (Id. at 46.)

14

Appellant also stood for sentencing on December 20, 2013, for the charges at

Docket No. 5807-2012, for which a jury had found Appellant guilty in July 2013. He

received a sentence of 16 months to 5 years’ incarceration for the burglary charge, and

1 year to 2 years for the criminal mischief charge. The additional theft by unlawful

taking – movable property charge merged for sentencing purposes with the burglary

charge. (N.T., Guilty Plea/Sentencing/Probation Violation at 37-38.) The sentences

were made concurrent to each other. Restitution was ordered in the amount of

$5,000.00, plus fines and costs. (Id. at 38.)

At the sentencing hearing on December 20, 2013, Appellant also chose to

resolve his 2013 attempted prison escape charges with an open guilty plea. After

conducting a thorough on-the-record colloquy, during which Appellant admitted to the

facts alleged by the Commonwealth, the plea was accepted and Appellant immediately

stood for sentencing. (N.T., Guilty Plea/Sentencing/Probation Violation at 3-10.) For

the criminal attempt at escape charge, a sentence of one to two years’ incarceration

was imposed. A concurrent sentence of 6 to 12 months was imposed for the

implements of escape charge. These sentences were concurrent to all of the

sentences on all other dockets disposed of on December 20, 2013. (Id. at 11.)

In sum, the aggregate sentence imposed on all charges was 20 to 54 years’

incarceration. (N.T., Guilty Plea/Sentencing/Probation Violation at 44.) The total

restitution ordered was $58,082.54. (Id.)

At the sentencing hearing on December 20, 2013, this Court also addressed

Appellant’s probation and parole violations on the following dockets: Nos. 0253-2007,

0816-2007, 3974-2009, 3905-2009, 3960-2009, and 3976-2009. The record

15

established that a factual basis for the violations existed, and all notices were provided

to Appellant and hearings held or waived. Accordingly, the Court found that Appellant

had violated his probation and parole, his probation and parole were revoked, and

Appellant was resentenced as follows: (1) on No. 0253-2007, a new period of probation

of one year; (2) on No. 0816-2007, Count 1, unexpired balance, which included the

consecutive split of five years, and on Counts 2 and 3, a new period of probation of two

years; (3) on No. 3974-2009, Counts 1 and 2, the unexpired balance, which included

the consecutive five-year period of probation; (4) on No. 3905-2009, a new period of

probation of two years; (5) on No. 3960-2009, Counts 1 to 5, the unexpired balance,

which included a consecutive five-year period of probation, and on Counts 6 and 7, a

new two-year period of probation; and (6) on No. 3976-2009, Counts 1 and 2, the

unexpired balance, which included a five-year period of consecutive probation on

Counts 1 and 2, on Counts 3 and 6, a new five-year probation, and on Counts 7 to 11, a

new two-year probation. (N.T., Guilty Plea/Sentencing/Probation Violation at 50-51.)

The sentence of 20 to 54 years’ incarceration and supervision was transferred to the

Commonwealth on all dockets. (Id. at 52.)

On December 30, 2013, Appellant filed a timely post sentence motion seeking:

(1) to modify the sentence; (2) to withdraw the guilty plea; (3) to raise abuse of

discretion by the trial court; (4) an arrest of judgment; and (5) new counsel.

Specifically, Appellant argued that when “[he] was deciding whether to go to trial or not,

the Court indicated it would have compassion in sentencing and would sentence more

leniently if [Appellant] pled than if he went to trial” and Appellant relied upon that

representation by the Court to his detriment. (See Post Sentence Motion at ¶¶ 6, 7.)

16

Moreover, Appellant claimed the Court “abused its discretion in running all sentences

consecutively” and that the sentence is “excessive and ignores all the mitigating

evidence that was presented at sentencing.” (Id. at ¶¶ 9, 10.) Lastly, Appellant

alleged that his plea “was not knowing, intentional, or voluntary.”

The Commonwealth filed a timely response to Appellant’s post sentence motion

on February 10, 2014, arguing that Appellant’s pleas were knowingly, intelligently and

voluntarily entered, and requesting that relief be denied. By Order entered on

February 18, 2014, Appellant’s post sentence motion was denied in its entirety.

Appellant was represented at trial, at the plea, and at sentencing by

court-appointed counsel, Mark F. Walmer, Esquire. On February 24, 2014, Attorney

Walmer was granted leave to withdraw as counsel for Appellant and new counsel was

appointed to represent Appellant on any direct appeal to the Superior Court of

Pennsylvania.

A timely appeal from the judgment of sentence imposed on December 20,

2013, as finalized by the denial of Appellant’s post sentence motion, was filed on March

3, 2014. Pursuant to this Court’s directive, Appellant furnished a statement of errors

complained of on appeal which raises two issues: (1) whether his plea of nolo

contendere was voluntary, knowing and intelligent; and (2) whether the Court erred in

denying Appellant’s post sentence motion without a hearing.

II. Discussion

A. Voluntary, Knowing and Intelligent Nolo Contendere Plea

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When a criminal defendant enters a plea, he waives his right to “challenge on

appeal all non-jurisdictional defects except the legality of [his] sentence and the validity

of [his] plea.” Commonwealth v. Pantalion, 957 A.2d 1267, 1271 (Pa. Super. 2008)

(quoting Commonwealth v. Rush, 909 A.2d 805, 807 (Pa. Super. 2006)). A

defendant who attempts to withdraw a guilty plea after sentencing must demonstrate

prejudice on the order of manifest injustice before withdrawal is justified. Id. (citing

Commonwealth v. Muhammad, 794 A.2d 378, 383 (Pa. Super. 2002).) “A plea rises

to the level of manifest injustice when it was entered into involuntarily, unknowingly, or

unintelligently.” Id. In the instant case, Appellant claims his plea of nolo contendere was

entered into involuntarily, unknowingly and unintelligently for the reason that he was

enticed to plead guilty by representations of leniency in sentencing by the Court.

I begin my analysis as to the voluntary, knowing and intelligent nature of

Petitioner’s plea by examining the totality of the circumstances surrounding the plea.

The procedure for pleas and plea agreements is set forth in Rule 590 of the Pennsylvania Rules of Criminal Procedure. Before a judge may

accept a plea of guilty, he must determine, after inquiry of the defendant, that the plea is voluntarily and understandingly tendered. Pa.

R.Crim.P. 590(A)(3).14 The comment to this Rule notes, that “at a minimum,” the judge should ask the following questions in the guilty

14

Rule 590 provides in relevant part as follows:

(1) Pleas shall be taken in open court.

(2) A defendant may plead not guilty, guilty, or, with the consent of the judge,

nolo contendere. If the defendant refuses to plead, the judge shall enter a

plea of not guilty on the defendant's behalf.

(3) The 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

18

plea colloquy: (1) Does the defendant understand the nature of the charges to which he is pleading guilty; (2) Is there a factual basis for the

plea; (3) Does the defendant understand that he has the right to trial by jury; (4) Does the defendant understand that he is presumed innocent

until he is found guilty; (5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged; and (6) Is the

defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement. Our

Supreme Court has held that inquiry into these six areas is essential to ensure a knowing, voluntary and intelligent plea. Commonwealth v.

Flanagan, 578 Pa. 587, 605, 854 A.2d 489, 500 (2004). See also Commonwealth v. Willis, 471 Pa. 50, 51-52, 369 A.2d 1189, 1189-90 (1977);

Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa. Super. 2008).

appear on the record.

Pa. R.Crim. P. 590(A).

The comment to Rule 590 does allow that a determination into these areas may be accomplished by a written colloquy that is

"read, completed, signed by the defendant, and made part of the record of the plea proceedings," supplemented by some on-the-record oral

examination. In this case, the undersigned did specifically inquire into the six designated areas identified above (N.T., Guilty Plea at 25-42),

and Appellant also completed a seven-page written colloquy, in which Appellant manifested his understanding of

the offenses against him, the maximum sentences, and the procedural due process

rights waived by a guilty plea. (Id. at 43-48.) Appellant indicated that he reviewed the

colloquy form with his attorney and signed it. (Id. at 43.) Thus, the record clearly establishes that

Appellant was aware that he was charged with, inter alia, the felony offenses of burglary, conspiracy, person not to possess firearms, flight to

avoid apprehension, receiving stolen property, fleeing and eluding, theft by unlawful taking, and criminal mischief (Id. at 27-35), that he

understood the nature of these charges (Id.), that he was giving up his right to a jury trial and the presumption of innocence (Id. at 44-46),

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that each of the 13 felony one offenses carried a maximum jail term of 20 years (Id. at 35-36), that each of the 10 felony two offenses carried a

maximum jail term of 10 years (Id. at 36), and that each of the 12 felony three offenses carried a maximum jail term of 7 years. (Id.)

As required by Pa. R.Crim.P. 590, a trial court must also satisfy itself that there is a factual basis for the plea. Commonwealth v.

Fluharty, 429 Pa. Super. 213, 219, 632 A.2d 312, 315 (1993). However, the “factual basis” requirement does not mean that the defendant

must admit every element of the crime. Id. In Alford, supra, the United States Supreme Court upheld a guilty plea accompanied by an

assertion of innocence when there was substantial independent evidence of guilt. The Superior Court explained in Fluharty:

[W]hile most pleas of guilty consist of both a waiver of trial and an

express admission of guilt, the latter element is not a constitutional

requisite to the imposition of criminal penalty. An individual accused

of crime may voluntarily, knowingly, and understandingly consent to

the imposition of a prison sentence even if he is unwilling or unable

to admit his participation in the acts constituting the crime.

Nor can we perceive any material difference between a plea that

refuses to admit commission of the criminal act and a plea containing

a protestation of innocence when, as in the instant case, a defendant

intelligently concludes that his interests require entry of a guilty plea

and the record before the judge contains strong evidence of actual

guilt.

Id. at 220, 632 A.2d at 315 (quoting Alford, 400 U.S. at 37). See also Flanagan, 578 Pa. at 631, 854 A.2d at 515-16.

In the instant case, Appellant acknowledged that the Commonwealth could present sufficient evidence to convince a jury beyond a

reasonable doubt that he committed the charged offenses. (N.T., Guilty Plea at 70.) Specifically, Appellant conceded that if these cases

were to go to trial the Commonwealth would be able to produce evidence that between April 2, 2011, and August 15, 2011, Appellant burgled

one business and multiple residences throughout Lancaster County, after which he was found to be in possession of stolen items belonging to

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the victims of the burglaries. (N.T., Guilty Plea at 49-70.) Thus, in light of the totality of the circumstances surrounding the plea in this

case, it is clear that there was a sufficient factual basis for the plea to be deemed intelligently, knowingly and voluntarily entered.

For Appellant to now suggest that he was unlawfully induced into entering into the nolo

contendere plea because of “representations of leniency” (Concise Statement at ¶ 1;

Post Sentence Motion at ¶¶ 6-8), is contrary to the facts of this case. In discussing with Appellant his alternatives for

addressing the pending criminal charges,15 I did explain his option “to plead open or straight” by “either enter[ing] a nolo contendere plea or

no contest plea or a guilty plea” which would result in the Court determining the appropriate sentence. (N.T., Guilty Plea at 11.) I

advised Appellant that should he elect the option of an open plea, “I [would] take into consideration, as does every judge, a person taking

responsibility and acknowledging their responsibility when I decide what the appropriate sentence should be.” (Id.) However, I also

confirmed with Appellant his understanding that with “an open or a straight plea . . . there is no agreement between you, your attorney, the

Commonwealth, and this Court as to what sentence may be imposed.” (Id. at 40-41.)

15

The alternatives included having his charges heard before a jury (N.T., Guilty Plea at 8-9), having the case heard before me (Id. at 11), having the charges resolved by a negotiated guilty plea (Id. at 10), having the charges resolved by an open or straight guilty plea (Id. at 11), or having the charges resolved by a plea of nolo contendere. (Id. at 10.)

This Court thoroughly questioned Appellant regarding his understanding of the nolo contendere plea and its effect on sentencing.

(N.T., Guilty Plea at 25-26.) Appellant was specifically cautioned that a nolo contendere plea is treated just like any other guilty plea for

purposes of sentencing. (Id. at 25-26.) As explained by the Superior Court in the leading case of Commonwealth v. Ferguson, 44 Pa.

Super. 626, 628 (1910), “[a] plea of nolo contendere, when accepted by the court, is, in its effect upon the case, equivalent to a plea of guilty.”

See also Commonwealth v. Shrawder, 940 A.2d 436, 443 (Pa. Super. 2007). The United States Supreme Court in Alford noted that the

plea of nolo contendere is regarded as a tacit admission of guilt. 400 U.S. at 37. For this reason, “the Constitution does not bar imposition

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of a prison sentence upon an accused who is unwilling expressly to admit his guilt but who, faced with grim alternatives, is willing to waive

his trial and accept the sentence.” Id. at 36. See also Commonwealth v. Lewis, 791 A.2d 1227, 1234 (Pa. Super. 2002).

In the instant case, Appellant was facing a grim alternative when he elected to enter an Alford plea to multiple felony and

misdemeanor charges.16 Appellant knew that he could potentially face a term of 597 years in prison17 and a fine of $1,125,000.00 if

convicted. (N.T., Guilty Plea at 35-36.) Appellant had absolutely nothing to gain by a trial and much to gain by pleading. Because of

the overwhelming evidence against him, a trial was precisely what neither Appellant nor his attorney wanted. The record demonstrates that

Appellant voluntarily, knowingly and understandingly consented to the imposition of a prison sentence because the Commonwealth had

sufficient evidence to convince a jury beyond a reasonable doubt that Appellant was guilty of over 35 felonies resulting from over 10

burglaries.

16

In addition to a prison sentence, Appellant understood that he was facing deportation as a result of his criminal activity. Appellant was born and raised in Canada and lived illegally in the United States for seven years before becoming a naturalized citizen by reason of his marriage to an American in 1994. An “Immigration Detainer – Notice of Action” was filed by the U.S. Department of Homeland Security, Immigration and Customs Enforcement, on October 24, 2011, notifying Appellant that an investigation had been initiated to determine whether he is subject to removal from the United States as a result of his criminal activity. Defense counsel advised the Court at sentencing that, upon the completion of Appellant’s sentence in the State Correctional Institution, Appellant will be deported to Canada and refused admission to the United States. (N.T., Guilty Plea/Sentencing/Probation Violation at 30.)

17The actual number of years would have been less if the merger of certain thefts with

the burglary charges had been calculated. (N.T., Guilty Plea at 73.) Nonetheless, Appellant was facing a potential maximum term of imprisonment that exceeded his lifetime. (Id.)

By the nature, extent and tone of the nolo contendere plea hearing, this Court was well satisfied that Attorney Walmer had fully

executed his duties in advising Appellant of the nature of the charges and the possible consequences of his plea. Defense counsel

advised the Court that his client was entering a knowing, voluntary

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and intelligent plea. (N.T., Guilty Plea at 72-73.) Additionally, Appellant affirmed that

he was entering a knowing, voluntary and intelligent plea, and was satisfied with his

attorney’s representation and had no complaints or concerns about that representation.

(Id. at 44-45, 48.)

Thus, considering all the circumstances attendant to the plea, including the

adequacy of the plea colloquy, Appellant’s responses therein, and the representations

by defense counsel, the nolo contendere plea was knowing, voluntary and intelligent.

Thus, Appellant’s post sentence request to withdraw his guilty plea was properly

denied.

B. Need for an Evidentiary Hearing

Appellant further claims that the Court erred in denying Appellant’s post

sentence motion without a hearing. Appellate case law establishes that where “an

appellant’s argument is contradicted by his own testimony, under oath, at the plea

hearing, no further hearing on his post-sentence motion was required.”

Commonwealth v. Rumbaugh, 365 Pa. Super. 388, 391, 529 A.2d 1112, 1113 (1987).

See also Commonwealth v. Muntz, 428 Pa. Super. 99, 106, 630 A.2d 51, 54 (1993) (court was not required to grant a hearing on defendant’s

post sentence motion to withdraw his plea, where he had not argued that a manifest injustice had occurred nor presented any supporting

evidence).

As stated above, the circumstances attendant to the plea, including the

adequacy of the on-the-record plea colloquy, Appellant’s responses therein, and the

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representations by defense counsel, establish that the nolo contendere plea was

knowing, voluntary and intelligent. Thus, no further hearing on Appellant’s claim was required.

III. Conclusion

For the reasons set forth above, Appellant Dwayne A. Weir’s post sentence motion was properly denied and his appeal should be

denied.

Accordingly, I enter the following:

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IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA

C R I M I N A L COMMONWEALTH OF PENNSYLVANIA : Nos. 4868-2011, 4872-2011A, : 3244-2012, 3251-2012 v. : 3253-2012A, 3327-2012, : 4003-2013 DWAYNE ARMAND WEIR : O R D E R

AND NOW, this 28th day of March, 2014, the Court hereby submits this Opinion

pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure.

BY THE COURT:

DAVID L. ASHWORTH

JUDGE

ATTEST:

Copies to: Susan E. Moyer, Assistant District Attorney

R. Russell Pugh, Esquire

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