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Commonwealth v. Johnson-Daniels

Superior Court of Pennsylvania

July 5, 2017

COMMONWEALTH OF PENNSYLVANIA
v.
BARRY G. JOHNSON-DANIELS, Appellant

         Appeal from the Judgment of Sentence February 8, 2016 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0004222-2014

          BEFORE: GANTMAN, P.J., DUBOW, J., and MUSMANNO, J.

          OPINION

          DUBOW, J.

         Appellant Barry G. Johnson-Daniels seeks review of the Judgment of Sentence entered by the Court of Common Pleas after the entry of Appellant's guilty plea. He challenges the court's refusal to grant his pre-sentence Motion to withdraw his guilty plea, and the discretionary aspects of his sentence. After careful review, we affirm.

         The facts, as gleaned from the certified record, are as follows. Police officers in Harrisburg received a tip from Crime Stoppers that Appellant was selling drugs on a street in an area known for drug trafficking. On December 24, 2013, a confidential informant ("CI") working with the Harrisburg Police Department purchased crack cocaine from Appellant at a carwash on Derry Street at a planned meeting. Police officers immediately arrested Appellant after a struggle.[1] Police officers recovered a bag containing 35 grams of cocaine laying under Appellant's body once they subdued him. They also found cash from Appellant's person and, pursuant to a search warrant for Appellant's vehicle, found heroin packaged in 59 individual packets, $4, 000 in cash, and five cell phones, including one with the phone number the CI used to set up the drug purchase.

         Appellant was charged with two counts of Possession with Intent to Deliver a controlled substance ("PWID") and related drug offenses, as well as Escape, Flight to Avoid Apprehension, Resisting Arrest, and two summary driving offenses, for a total of 11 counts. Appellant remained free on bail. See Notes of Testimony ("N.T.") Plea, 12/8/15, at 15-18.

         On December 8, 2015, just prior to picking a jury, Appellant entered an open guilty plea to all charges. At that hearing, Appellant underwent an extensive waiver colloquy. Appellant's attorney stated that he had apprised Appellant of the elements of the crimes charged. Appellant agreed that he "is aware of the elements of the crimes charged, the burden of production and persuasion that the Government has the duty of if it were to come to trial, and then also what the statutory maximums are of each one of the offenses." Id. at 7-8. In addition, the prosecutor provided a detailed recitation of the facts underlying the charged crimes, the elements of each of the crimes, and the possible sentence for each crime. Appellant unequivocally responded that he understood each crime and agreed that he was pleading guilty because he was "in fact, guilty of them." Id. at 9-22, 29. The trial court accepted the guilty pleas, ordered a pre-sentence investigation, and scheduled sentencing for January 26, 2016. Id. at 22, 29. Appellant remained free on bail, and on January 21, 2016, filed a Pre-Sentence Memorandum in Mitigation.

         On January 26, 2016, at the sentencing hearing, the Commonwealth requested a sentence of at least four years' incarceration.[2] Relevant to this appeal, the following exchange occurred during the prosecutor's argument:

[Prosecutor]: The defendant is an individual who profits from the drug trade and he profits from addiction. As a prosecutor who's been doing this for a long time, we look at these cases, and you see a name and you see a deal and you see an amount of weight that was sold and you really don't think much further than that.
However, it is important to note that all these drug indications [sic] involve numerous victims, when you think about it: people who are addicted to cocaine, people who are addicted to heroin. These individuals lose their jobs. They go out on the street, and they need money to support their habit. In order to support their habit, they rob. They steal. They steal from friends. They steal from family. They commit burglaries. They commit robberies out on the street. And the entire public is affected by this.
The defendant profits from that. He makes money off of that to buy things, to go on trips.
And I noticed in his presentence investigation, that - his [mitigation] memorandum that he sent, I believe there was a picture of him and his five children and pictures of him when he was in kindergarten and school, growing up. But as recently as September, if you go on the defendant's Facebook page, he's in Las Vegas, having a good time.
[Appellant's Attorney]: You know what? I'm going to have to object to a large part of - I understand that there's allocution, and the Commonwealth has a right of it, but a couple of different things. I was gonna let it go.
Number one, the relevance of the trail of tears type of information when there's been absolutely nothing linked to this particular defendant. That is wild speculation, and I'd ask the Court to acknowledge the fact that drugs are something that destroys our community, but specific effects have not been traced back to [Appellant].
Number two is, as far as being in Las Vegas or anything on his Facebook, I note that there's nothing here that's presented as far as anything that's authenticated, nothing here in terms of the evidence. And so I'd ask the Court to strike that, also, from its consideration as well. There's a way to prove these things up, and they were not done.
[Prosecutor]: And I'm not worried about, necessarily, the Las Vegas thing.
However, it is apparent that the defendant is someone who profits from the drug trade, makes money. He is not a person who uses and sells to support his habit. He profits from this, and he makes money to buy things. And with that - and that is the reason I am requesting a sentence of no less than four years in State prison.
He's had numerous PWIs. He's gotten Intermediate Punishment. He went to County prison. It is time to send [Appellant] to State prison.
[Appellant's Attorney]: If I may, Your Honor, very quickly.
At this time, Your Honor, based upon not only the comments that we had sidebar[3] and also with respect to the prosecutor's allocution, we'd like to withdraw our guilty plea.
The Court: I don't know on what grounds that would be. I already have the presentence. I have your [Mitigation] [M]emorandum.
[Appellant's Attorney]: It's -
The Court: The sentence is based on his plea, the background, and the information that I have pertaining to the case. [The prosecutor] gave his comments. Regardless of his comment, I am going to proceed with sentencing.
[Appellant's Attorney]: Just so we are clear here, this is prior to sentencing. He's asking to withdraw his guilty plea, which is liberally allowed under the Pennsylvania Supreme Court rulings, and that the Court needs to show a manifest abuse of justice in order for it to be able to do that. And I don't see that on this record.
I just want to be clear to the Court that our intention here is to withdraw his guilty plea prior to sentencing, and I think that if the Court goes forward and sentences him when he asserts that he's factually innocent - which he's prepare to do - then it's going to be a very difficult burden for the court to overcome.
The Court: This is the second time that [Appellant] has gone down this lane.
[Appellant's Attorney]: And you know what happened on the second one? He got found not guilty.
The Court: That's correct.
[Appellant's Attorney]: Okay. So -
The Court: All right. I'll tell you what we're going to do. We're going to allow him to withdraw his plea.
I will raise bail to $150, 000. We will set this for February 8th for trial.
[Discussion occurred between the Court and Appellant's Attorney regarding the increase in bail and Appellant's intention to appeal the increase of bail.]
[Prosecutor]: And it's the Commonwealth's position that bail should - he shouldn't even have bail. While he was out on bail on two other cases, he violated this act.
So for him to be in jail at this time is not only proper; it is the correct thing to do at this point. . . . what he's doing right now is playing games with the system.
***
This case has been around since at least, the first listing, August of 2014. The Commonwealth was prepared to try this case in early December. Our witnesses were ready, willing, and able. I was prepared as well.
Now we come here at sentencing after Christmas, after the holidays, and he comes in here, because the prosecutor doesn't say what he likes and doesn't appreciate what I say about him - which is the ...

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