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[U] Commonwealth v. Collier

Superior Court of Pennsylvania

February 24, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
ERIC F. COLLIER, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence August 16, 2012 In the Court of Common Pleas of Bradford County Criminal Division at No(s): CP-08-CR-0000115-2010.

BEFORE: LAZARUS, J., OTT, J., and JENKINS, J.

MEMORANDUM

LAZARUS, J.

Eric F. Collier appeals from his judgment of sentence after entering an open guilty plea to delivery of a controlled substance.[1] Collier was sentenced to 32 months' to 6 years' imprisonment, with credit for time served (147 days).[2] More specifically, the court imposed a 32-month minimum sentence, with an RRRI-minimum of 24 months. After careful review, we affirm.[3]

Criminal charges were filed against Collier, by way of a complaint, on October 15, 2009. A preliminary arraignment was held on January 4, 2010, at which time Collier posted bail. Collier waived his preliminary hearing on February 23, 2010; however, he failed to appear for his arraignment on March 12, 2010, and a bench warrant was issued for his arrest. Collier appeared in court on the bench warrant on September 13, 2011, at which time the warrant was vacated and bail reinstated. Arraignment, rescheduled for October 6, 2011, was waived.

On December 22, 2011, Collier entered a guilty plea to delivery of a controlled substance, an ungraded felony. On January 4, 2012, he filed a motion to withdraw his plea, which the court granted on January 31, 2012. Trial was scheduled for February 27, 2012. Collier failed to appear for his pretrial conference in March 2012; the court issued a bench warrant for Collier's arrest. The warrant was later vacated and Collier was remanded to the Bradford County Correctional Facility, without bail. Thereafter, Collier filed a Pa.R.Crim.P. 600 motion to dismiss. The following day, Collier reinstated his guilty plea and the trial court dismissed the Rule 600 motion as moot. Sentencing was scheduled for August 2012. At sentencing, Collier once again moved to withdraw his guilty plea, renewing his Rule 600 motion as one of the reasons for seeking withdrawal of his plea and also asserting that his ineligibility for State Intermediate Punishment (SIP) as another reason for withdrawal.[4]

The trial court denied Collier's motion to withdraw his plea and sentenced him on August 16, 2012 to 32 months' to 6 years' imprisonment, with a minimum of 24 months due to his RRRI eligibility.[5] Collier filed a timely post-sentence motion claiming that the sentencing court improperly increased its initial minimum sentence (from the standard range to the aggravated range of the sentencing guidelines) once Collier requested RRRI eligibility. The court denied his post-sentence motion and this timely appeal follows.

On appeal, Collier raises the following two issues: (1) Whether the sentencing court erred in increasing the minimum sentence after the defendant requested that a RRRI minimum be imposed and (2) Whether the court erred in denying defendant's request to withdraw his guilty plea.

RRRI Sentence

Collier claims that the trial court intentionally increased his minimum sentence, after determining he was RRRI eligible, in order to require him to serve a minimum RRRI sentence of two years' imprisonment. Although admitting it is not directly on point, Collier cites Commonwealth v. Robinson, 7 A.3d 868 (Pa.Super. 2010), to support his argument that it was improper for the trial court to increase his minimum sentence to account for RRRI eligibility.

We find Robinson to be inapposite. In that case, a trial court failed to consider a defendant's eligibility for RRRI after he entered a negotiated plea. On appeal, our Court found that the trial court erred "because the imposition of a negotiated sentence, like defendant's, does not conflict with the statutory scheme of the RRRI sentencing process and does not disqualify a defendant from eligibility under the RRRI statute." Id. at 875.

Instantly, the trial court did consider Collier's eligibility for RRRI[6] after he entered his open plea and, ultimately, determined that he was eligible. However, the court fashioned his minimum RRRI sentence as follows:

I'll figure the RRRI, but I want him to do the two year minimum. So, I may – you know, it's – I'll give him the RRRI, but I'm going to increase the minimum sentence because I want him to do two years behind bars.

N.T. Guilty Plea Sentencing, 8/16/2012, at 10. When defense counsel asked the court if it was changing its original sentence, the sentencing judge stated "I will figure it out after I determine what the RRRI is, yes." Id. The court then calculated the sentence on the record, determining that Collier "needs to do two [at least] two years behind bars, " and stating, "I'll make the sentence – it's going to be in the aggravated range. Minimum sentence will be thirty-two months, maximum will be six years. And I'll add to this order: The court finds the defendant is eligible for an RRRI minimum sentence of twenty-four months." Id. at 11.

In addition to the above-stated reasons, the court also justified its aggravated-range sentence by noting that Collier's prior criminal offenses were not accurately reflected in his prior record score, that Collier has been a drug dealer for almost twenty years, and that the record in the instant case reflects Collier's avoidance of the "hard facts of the case, " where he failed to appear at his arraignment, requested multiple continuances, changed his mind about pleading guilty and has simply avoided responsibility for his actions. Id. at 11-12.

While a review of the record may seem to indicate that the court "back-doored" Collier's minimum sentence based on his RRRI eligibility, the court was more than justified in sentencing him in the aggravated range based on the multiple reasons stated above. See 204 Pa. Code § 303.13(c) (part of sentencing guidelines mandating that judges state on record reasons for sentencing in aggravated range); see generally 42 Pa.C.S. § 9721(b) (general standards for imposing sentence). Accordingly, we find no abuse of discretion.

Withdrawal of Guilty Plea

Collier next claims that he should have been permitted to withdraw his guilty plea following sentencing. Specifically, Collier asserts that he should have been allowed to withdraw his plea because the Commonwealth had not exercised due diligence in bringing him to trial, in violation of his speedy trial rights under Pa.R.Crim.P. 600, and that the Commonwealth would suffer no prejudice if he were permitted to withdraw his plea. We disagree.

The decision to grant or deny a motion to withdraw a guilty plea rests within the trial court's discretion, and we will not disturb the court's decision on such motion unless the court abused that discretion. Commonwealth v. Gordy, 73 A.3d 620 (Pa. 2013). An abuse of discretion is not a mere error in judgment but, rather, involves bias, ill will, partiality, prejudice, manifest unreasonableness, and/or misapplication of law. Id. By contrast, a proper exercise of discretion conforms to the law and is based on the facts of record. Id.

There are two standards of review when determining the propriety of the lower court's refusal to permit the withdrawal of a guilty plea. One is the standard that must be employed when reviewing the withdrawal of the guilty plea prior to sentencing. Under those circumstances, a court may allow the defendant to withdraw his guilty plea where he demonstrates fair and just reason for the withdrawal. Where, however, the prosecution substantially relies upon the plea to its detriment, irrespective of the presence of a fair and just reason, the withdrawal must still be denied. In those cases where the petition to withdraw is submitted to the lower court after sentencing, the appellant must demonstrate prejudice in the nature of manifest injustice, before the withdrawal is granted.

Commonwealth v. Campbell, 455 A.2d 126, 128 (Pa.Super. 1983).[7]

In Collier's Pa.R.A.P. 1925(b) statement, he alleges that his motion to withdraw was "based upon his assertion that his motion for dismissal pursuant to Pa.R.Crim.P. 600 was meritorious, and that he would have been entitled to dismissal of the charges." Defendant's Pa.R.A.P. 1925(b) Concise Statement of Matters Complained of on Appeal, 1/3/2013, at 2. More specifically, Collier claims that the Commonwealth was not duly diligent in apprehending him after a bench warrant was issued for his arrest for failure to appear at his arraignment.

This Court has held that an alleged irregularity in proceedings prior to a plea of guilty, including an alleged violation of Rule 1100 [now 600], is reviewable only to the extent that it affected the voluntariness of the guilty plea itself. Commonwealth v. Gibson, 561 A.2d 1240, 1242 (Pa.Super. 1989), citing Commonwealth v. Riviera, 385 A.2d 976 (Pa.Super. 1978). Collier has not alleged that the initial delay in bringing him to trial while he was on bail affected the voluntariness of his guilty plea.[8] Moreover, nothing in the record indicates a delay in his case in any way induced his plea. Therefore, pursuant to the Riviera line of cases, his claim is not reviewable. As the trial court aptly notes and the record bears out, Collier intentionally sought to "further delay accountability for charges brought [against him] nearly twenty (20) months earlier for an offense which occurred more than 3½ years ago." Order Denying Post-Sentence Motions, 12/12/2012. Based on Collier's multiple continuances, his indecisiveness about whether he should proceed to trial or plead guilty, and his failure to appear at scheduled court proceedings of which he had notice, he has not offered a fair and just reason for withdrawing his plea.[9] Accordingly, we find no abuse of discretion in the trial court's denial of Collier's motion to withdraw his guilty plea. Campbell, supra; Gordy, supra.

Judgment of sentence affirmed.

Judgment Entered.


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