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
2
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.
3
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
5
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.)
6
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
8
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.
12
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
17
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),
19
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
20
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