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HomeMy WebLinkAbout98-1237 criminalCOMMONWEALTH V, CHARLES LEE CAROTHERS · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · NO. ~8-1237 CRI~IN~h TER~ OPINION PURSUANT TO APPELLATE RULE 1925 On October 26, 1998 the Defendant entered a guilty plea to unlawful delivery of crack cocaine as the parties were preparing to pick a jury.~ At the conclusion of the guilty plea colloquy, the Defendant requested that sentencing be scheduled for "the latest possible sentencing date.''~' We agreed to accommodate the Defendant and scheduled the sentencing date for January 12, 1999. Defendant failed to appear for sentencing as scheduled and a bench warrant was issued for his arrest. He appeared before us later that same day for imposition of sentence. At that time he raised the specter of participation in the motivational boot camp program for the very first time. We deferred sentencing until February 9, 1999 to give the presentence investigator the opportunity to "look at the appropriateness of boot camp.''3 The presentence investigator had an extensive history with the Defendant as a parolee and recommended against his participation in the boot camp program. Subsequently, on CGuilty Plea Colloquy, p. 2-3. ~'Guilty Plea Colloquy, p. 6. 3January 12, 1999, proceedings, Sentencing Colloquy, p. 2-3. NO. 98-1237 CRIMINAL TERM February 4, 1999, the Defendant filed a motion to withdraw his guilty plea on the basis that he "misperceived his plea agreement.''4 At the same time Defendant's Public Defender filed a motion to withdraw as counsel. On February 9, 1999, we granted the Public Defender's Motion to Withdraw and appointed current counsel to represent the Defendant. A hearing on Defendant's Motion to Withdraw his guilty plea was scheduled for March 2, 1999. At the conclusion of the hearing we denied the motion and proceeded to impose a sentence of imprisonment in a state correctional institution for not less than two nor more than eight years.5 Defendant filed Post Sentence Motions which we denied on March 23, 1999. He also filed a Motion for Bail Pending Appeal which we denied after a hearing on May 25, 1999. The Defendant has filed a timely appeal to the Superior Court in which he raises three issues.6 In the first instance, he alleges that we erred in refusing to grant his presentence Motion to Withdraw his guilty plea. He also asserts that we should have imposed a sentence which would make him eligible to participate in the boot camp program. Finally, he argues that he is entitled to bail pending appeal. We will address each issue 4Motion to Withdraw Guilty Plea, para. 5. 5This is a standard range sentence under the Sentencing Guidelines. 6See Statement of Matters Complained of on Appeal filed by Defense Counsel on April 30, 1999. NO. 98-1237 CRIMINAL TERM seriatim. DISCUSSION Refusal to allow presentence withdrawal of ~uilty plea. Pa. Rule of Criminal Procedure 320 provides that "[a]t any time before sentence, the court may, in its discretion, permit or direct a plea of ~uilty to be withdrawn and a plea of not ~uilty substituted." In its seminal decision of Com. v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973) the Pennsylvania Supreme Court set forth the parameters for determinin~ when a request to withdraw a guilty plea made prior to sentencin~ should be ~ranted. The Forbes Court noted that such requests should be liberally allowed. It went on to state that [I]n determining whether to grant a pre-sentence motion for withdrawal of a guilty plea, "the test to be applied by the trial courts is fairness and justice." If the trial court finds "any fair and just reason", withdrawal of the plea before sentence should be freely permitted, unless the prosecution has been "substantially prejudiced." Id. at 191, 299 A.2d at 271 (citations omitted). While a presentence request to withdraw a guilty plea should be liberally allowed, there is no absolute right to withdraw the plea. Com. v. Forbes, supra, Com. v. Hayes, 462 Pa. 291, 341 A.2d 85. In the instant case we could find no "fair and just reason" for allowing the Defendant to withdraw his plea. The only reason he offers to support his request is that he misperceived NO. 98-1237 CRIMINAL TERM the plea agreement.? He alleges that he entered the plea with the understanding that he would be guaranteed entry into the motivational boot camp program.8 Because we concluded that he had no such understanding at the time of the entry of the plea, we refused to allow him to withdraw it. (See Com. v. Hayes, supra which is factually similar to this case). We find as a specific fact that Defendant was never promised entry into the boot camp program in return for his guilty plea. We are also convinced that the first time anyone mentioned the possibility of a boot camp qualifying sentence was at the original sentencing proceeding on January 12, 1999. Any allegations by Defendant to the contrary are pure fabrications. We base the foregoing conclusions on several grounds. No mention of the boot camp program, or of any other plea agreement, was made at the time of the entry of the guilty plea. In fact, the following exchange took place between this Court and the Defendant at the time of the entry of the guilty plea- THE COURT- Has anybody promised you anything or threatened you in any way to get you to enter this guilty plea? THE DEFENDANT. No.9 7The Defendant has admitted that he committed the crime for which he has been sentenced. See Guilty Plea Colloquy, p. 3. 8State Sentencing Colloquy p. 2 and Guilty Plea Withdrawal p.3-4, 6-7. 9Guilty plea colloquy p. 5. NO. 98-1237 CRIMINAL TERM Furthermore, the original presentence investigation report made no mention of the boot camp program. If, as Defendant alleges, his attorney, Timothy Clawges, Esquire, had promised him that boot camp participation was to be recommended by the District Attorney as part of the sentence, he certainly would have raised the issue with the presentence investigator. Mr. Clawges is a dedicated, experienced and extremely competent defense attorney. We cannot imagine that he would have allowed the presenten'ce report to be prepared with no mention of the boot camp if that matter had been an issue at the time of the entry of the plea.~° Finally, the only evidence presented in support of Defendant's position was his own testimony. We found his testimony to be totally unworthy of belief. He testified at length regarding discussions between himself and Mr. Clawges regarding guarantees and plea agreements. However, not only did he fail to call Mr. Clawges as a witness, when the Commonwealth attempted to call him the Defendant insisted that Mr. Clawges assert the attorney client privilege. We are convinced that the Defendant invented the grounds to support the withdrawal of his guilty plea at the last minute in order to delay the inevitable. Therefore, we refused his request. ~°We are also convinced that Mr. Clawges would have made the recommendation part of the record at the time of the guilty plea colloquy if such an understanding existed, or had even been discussed. NO. 98-1237 CRIMINAL TERM Refusal to Sentence to Motivational Boot Camp. Defendant's challenge to the sentence appears to be to its discretionary aspects rather than its legality. As such, he is not entitled to appeal as of right, but must petition for allowance of appeal. Com. v. Cappellini, 690 Pa. Super. A.2d 1220, 1227, 456, 498 (1997). The Superior Court has held that it will review a sentence only if the Defendant raises "a substantial question that the sentence imposed upon him was not appropriate under the Sentencing Code as a whole." Id. at 1227. As it noted in Com. v. Groft, 424 Pa. Super. 510, 623 A.2d 341 (1993) · Although the existence of a substantial question must be determined on a case by case basis, the Superior Court will generally review the discretionary aspects of sentencing where a colorable argument is made that the actions of the sentencing court were either inconsistent with a specific provision of the Sentencing Code or contrary to the fundamental norms which underlie the sentencing process. 424 Pa. Super. 510, 520, 623 A.2d 341, 347. In his Statement of Matters Complained of on Appeal the Defendant merely states- The second issue the Defendant will pursue on appeal is the Court's decision to deny the motion to modify sentence. The Defendant sought a recommendation from the Court and a term of incarceration from the Court that would permit him to participate in the Boot Camp Program, and the Court denied these requests.~ He does not allege how our refusal to modify the sentence was "inconsistent with a specific provision of the Sentencing Code or ~Statement of Matters Complained of on Appeal, para. 7(b). NO. 98-1237 CRIMINAL TERM contrary to the fundamental norms which underlie the sentencing process." Com. v. Groft, supra. Therefore, we would respectfully suggest that allowance of appeal should not be granted on this issue. If the appeal on the issue of sentence is allowed, we would submit that the sentence was appropriate and should not be disturbed. The only complaint made by the Defendant is that we did not impose a sentence that would allow him to participate in the motivational boot camp program. However, as the Cappellini Court not ed: [a] sentence should not be disturbed where it is evident that the sentencing court was aware of sentencing considerations and weighed the considerations in a meaningful fashion. Com. v. Cappellini, supra, 690 A.2d 1220, 1228. In this case we thoroughly considered the boot camp option and rejected it.~2 Our reasons for the sentence were fully set forth in the sentencing colloquy as follows- You've been in trouble for many, many years. This sentence was -- rather, this charge was committed at a time that you were on parole for an identical charge. You have shown no ability to be rehabilitated at the county level. You have shown no inclination to remain crime-free. Your apologies, your recognitions of what you've done as being wrong, always come after you've been caught and not before. It's time to take you out of the game. I am going to enter a standard range sentence. Actually, I think an aggravated range sentence would be justified, but I am going to take you at your word. I am going to enter a standard range sentence, and I am going to give you a substantial tail so that you will ~-Sate Sentencing Colloquy p. 9. NO. 98-1237 CRIMINAL TERM be on state parole for a substantial period of time. Then it will be up to you whether or not you stay out of state prison in the future. It will be up to you whether you act like a man and support your family or act like a punk, and be the street-level dealer that you've been for so many years to date. So it's going to be up to you.~3 We considered the boot camp option yet again before denying Defendant's Motion to Modify Sentence when we stated- I thoroughly considered the bootcamp program. I thoroughly considered this man's background, criminal history, and I imposed a standard range sentence, which I think was appropriate under the circumstances. I think that the lengthy tail was necessary. I do not think he is appropriate for bootcamp so the sentence stands.TM For the reasons set forth at length on the record, we feel that the sentence imposed upon Mr. Carothers was appropriate. Refusal to set bail, pending appeal. Since the Defendant was sentenced to incarceration for a period of two years or more, he does not have the right to bail. Rather, the decision to allow bail is within our discretion. Pa. R.Crim. P. 4009(b) (2); Com. v. McDermott, 547 A.2d 1236, 377 Pa. Super. 623, (1988) . In the instant case, we refused Defendant's request for bail pending appeal. We placed our reasons on the record as required by Pa. Rule of Criminal Procedure 4009(c) as follows. (1) Defendant is addicted to drugs. ~3State Sentencing Colloquy p. 7-8. ~4Colloquy on Post-Sentence Motion p.4. NO. 98-1237 CRIMINAL TERM (2) He has an extensive prior criminal record and has shown a complete inability to refrain from criminal activity when he is not in prison. (3) The present offense occurred while he was on parole for a similar offense. (4) While he was free on bail for this offense, he committed another offense. (5) We are convinced that he will commit another crime if allowed out on bail. (6) Throughout his lengthy career with the criminal justice system, several bench warrants have been issued as a result of Defendant's failure to appear for schedul ed proceedings. Based upon the foregoing, we submit that we did not abuse our discretion in refusing Defendant's request for bail pending appeal. JUNE ~ , 1999 Edward E. Guido, J. cc- Jaime Keating, Esquire District Attorney's Office Michael S. Scherer, Esquire For the Defendant Probation -sld ~SSee Transcript of May 25 1999 Bail Hea,~ing. 9