Com. v. Galbiati, J.

J-A18033-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JOEL P. GALBIATI :

:

Appellant : No. 1036 WDA 2019

Appeal from the Judgment of Sentence Entered June 2, 2017

In the Court of Common Pleas of Cambria County Criminal Division at

No(s): CP-11-CR-0000287-2016

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JOEL P. GALBIATI :

:

: No. 1037 WDA 2019

Appeal from the Judgment of Sentence Entered June 2, 2017

In the Court of Common Pleas of Cambria County Criminal Division at

No(s): CP-11-CR-0000673-2016

BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.: FILED FEBRUARY 18, 2021

Appellant Joel P. Galbiati appeals from the judgment of sentence

following an open guilty plea to two charges of robbery.1 Appellant contends

that the trial court erred by denying his presentence motion to withdraw his

____________________________________________

118 Pa.C.S. § 3701(a)(1)(iv), (v). Appellant entered a plea of guilty to each

charge of robbery, but we use the singular “plea” for the parties’ convenience.

J-A18033-20

guilty plea. We vacate the judgment of sentence, vacate Appellant’s guilty

plea, vacate the order denying Appellant’s presentence motion to withdraw

his guilty plea, and remand for further proceedings.

The facts underlying Appellant’s guilty plea are unnecessary to

summarize except to note that the charges at docket no. 287-2016 arose from

a robbery that occurred on December 6, 2015, and the charges at docket no.

673-2016 arose from a robbery that occurred on December 2, 2015. At the

time of the guilty plea hearing, Appellant was pro se, although the trial court

had appointed Devon Malloy, Esq., as Appellant’s standby counsel. On

February 2, 2017, Appellant entered an open guilty plea to two counts of

robbery.2 Specifically, Appellant pled guilty to felony three robbery at docket

no. 287-2016, and felony two robbery at docket no. 673-2016.3 At the

hearing, the trial court also discussed the maximum penalties at the guilty

____________________________________________

2 As we explain further below, although the parties negotiated on the length

of the sentence, the plea itself was open. Guilty Plea, 2/2/17.

3 Appellant initialed each page of and signed a nine-page “Guilty Plea

Explanation of Defendant’s Rights Form,” which, among other things, set forth

the maximum punishment and the sentencing guidelines standard range. See

Guilty Plea Explanation of Def.’s Rights, 2/2/17, at 1; see also N.T. Guilty

Plea, Hr’g, 2/2/17, at 3. The form stated Appellant could receive an aggregate

maximum sentence of seventeen years’ imprisonment. Appellant

affirmatively indicated that no one forced him to enter the guilty plea, he was

doing this of his own free will, and he was not threatened. Guilty Plea

Explanation of Def.’s Rights at 9.

-2-

J-A18033-20

plea hearing. N.T. Guilty Plea Hr’g, 2/2/17, at 5.4 In response to the trial

court’s query, Appellant agreed that he discussed with Attorney Malloy “that

any term of incarceration” would “be calculated” under the sentencing

guidelines’ deadly weapon used matrix. Id. at 9. The trial court ordered a

presentence investigation and scheduled sentencing for March 16, 2017. Id.

at 11.5

On March 8, 2017, Appellant filed a pro se presentence motion to

withdraw his guilty plea. Appellant’s Mot. to Withdraw Plea Pursuant to

Pa.R.Crim.P. 591, 3/8/17, at 1. We quote Appellant’s pro se motion in

relevant part as follows:

6. The Commonwealth and [Attorney Malloy] led [Appellant] to

believe that not only would the cases be ran current [sic], but also

if [Appellant] did not plea to the terms that the three strikes

provision would be used.

7. [Appellant] feels that he was “bullied” and also pressured [into]

taking the plea at the last minute without having time to properly

view and knowingly, intelligently go over the agreement with

counsel.

____________________________________________

4 According to the transcript of the guilty plea hearing, the trial court advised

Appellant he could receive a maximum sentence of two years’ imprisonment

for a felony of the second degree, “and a felony of the third degree carries a

maximum penalty of up to seven years in jail . . . . So I would have the

authority to send you up to 17 years in jail . . . .” N.T. Guilty Plea Hr’g at 5.

It is not clear whether the trial court misspoke concerning the maximum

sentence for a felony of the second degree which is ten years, or if it was a

clerical error, but the trial court accurately notified Appellant of his maximum

potential aggregate sentence of seventeen years. See id.

5Meanwhile, Appellant filed a pro se motion for furlough for drug treatment.

Attorney Malloy also filed a similar motion on Appellant’s behalf.

-3-

J-A18033-20

Id. at 1-2. Appellant therefore requested that he be permitted to withdraw

his guilty plea in order for him “to properly go over the plea agreement

knowingly and intelligently with his counsel and also without being pressured.”

Id. at 2.

On April 4, 2017, the trial court held a hearing on Appellant’s

presentence motion to withdraw his guilty plea. At the hearing, Appellant

testified that the “reason for my withdrawal would be . . . that I wasn’t fully

aware of the sentencing under the deadly weapon enhancement matrix.” N.T.

Presentence Mot. to Withdraw Guilty Plea, 4/4/17, at 2. Appellant continued,

“[f]urthermore, I was led to believe if I didn’t take the plea that I would be

sentenced under the three strikes provision which is not the case only after

the fact, [sic] [did I learn] so I wasn’t fully aware of everything and we didn’t

go over everything totally in its entirety, that’s the reason for my withdrawal

if the [c]ourt would grant that.” Id.

In pertinent part, at the hearing, Attorney Malloy stated as follows:

[Attorney Malloy]: Your Honor, if I may state, as you know,

[Appellant] was proceeding pro se for quite sometime in his own

defense. He asked me to step in in terms of the plea negotiations

and speak with the District Attorney about getting these charges

run concurrent versus consecutive. When I stepped in, that’s

where we came up with the 30 to 36 which allowed the cases to

run concurrent. It was a better deal than what [Appellant] had

negotiated on his own. And [Appellant] was aware that he was

going to be sentenced under the deadly weapons matrix. I

explained thoroughly to him if he was convicted, following going

to trial on these charges, then he could be sentenced under the

three strikes rule. I believe we had ample time to discuss the

terms of this plea. And at the time this plea was made, we were

days away from choosing the jury in that first trial. So it is my

-4-

J-A18033-20

contention to the [c]ourt that all of this was explained to

[Appellant] at length.

Id. at 5. Appellant responded that “we did go over and we had minimal

amount of time.” Id. The trial court then continued the hearing to May 23,

2017.

At the May 23, 2017 hearing, the Commonwealth contended that

Appellant did not assert his innocence and “claimed to be misunderstanding

of perhaps the three strike[s] statute.” N.T. Presentence Mot. to Withdraw

Guilty Plea, 5/23/17, at 2. The Commonwealth continued as follows:

[The Commonwealth]: During the course of plea negotiations I did

raise that as a possibility that the Commonwealth would seek that

if our intent was to try these cases separately. So there were

robbery cases that were filed. We would not make a motion to

consolidate, but we would try them separately. If we had received

a conviction on the first case, then we would proceed to trial on

the second case. And that’s when the three strikes come into

play, because if we were successful on conviction to one of the

first degree felonies, then that would trigger that statu[t]e and

that would enhance the penalty that he could receive on the

second case.

So because his prior record score is a four and because three

strikes would only really pertain to the second case that would be

tried, not the first case, he would be looking at a significant

sentence if the Commonwealth were successful in obtaining two

convictions on those cases.

Id. at 2-3. The Commonwealth maintained that Appellant understood the

terms of his plea agreement and that it opposed Appellant’s presentence

motion to withdraw his guilty plea. Id. at 4.

At the hearing, Attorney Malloy confirmed that she discussed the plea

with Appellant at an in-person prison meeting and on a telephone call. Id.

-5-

J-A18033-20

Attorney Malloy stated that she “covered the three strikes rule, the impact

that that would have should these cases go to trial consecutively, the deadly

weapon enhancement . . . .”6 Id.

On May 24, 2017, the trial court denied Appellant’s presentence motion

to withdraw his guilty plea.7 Order, 5/24/17, at 1 (unpaginated). After

summarizing Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015),

the trial court reasoned as followed:

In the instant case, [Appellant] has not made any assertion of

innocence. Rather, he has asked the [c]ourt to withdraw his guilty

plea so that he may “properly go over the plea agreement

knowingly and intelligently with his counsel and also without being

pressured.” He claims that he was “bullied” into the plea

agreement. Furthermore, prior to requesting withdrawal of his

guilty plea, [Appellant] filed an uncounseled Motion for Furlough

to Drug Treatment on February 20, 2017. [Attorney Malloy] then

filed a similar Motion on March 16, 2017. We do not believe that

this serial filing of motions evidences any assertion of innocence

such that to deny [Appellant’s] Motion to Withdraw his plea would

work a miscarriage of justice. We find that allowing a withdrawal

of the plea would in no way promote fairness and justice. We do

not find that there is any fair and just reason for granting his

request. [Appellant] has not indicated that he is innocent and

wants a trial but rather that he wants a different deal. At his guilty

plea hearing, [Appellant] indicated that his court-appointed stand

by counsel would be now serving as his counsel and when asked

about her representation and his satisfaction with it, he indicated

he was “very satisfied.”

____________________________________________

6 Attorney Malloy noted that Appellant had previously counteroffered with two

consecutive terms of eighteen to twenty-four months in prison, but “she [had]

stepped in to assist with plea negotiations” and reduced the sentence to thirty

to thirty-six months’ imprisonment. Id. at 5.

7Attorney Malloy had also filed a motion to withdraw as standby counsel,

which the trial court granted on May 23, 2017. Order, 5/23/17.

-6-

J-A18033-20

At the hearing, on May 23, 2017, [Attorney Malloy] indicated in

her capacity as an officer of the [c]ourt that the plea agreement

entered into was agreed upon so that [Appellant] could receive a

concurrent sentence the Commonwealth would forego trying him

separately and requesting he be sentenced as a repeat violent

offender under what is commonly referred to as the Three Strikes

Law. She indicated that this was discussed with [Appellant].

[Appellant] indicated that this conversation never took place. We

find Attorney Malloy’s recitation to the [c]ourt credible.

It is the [c]ourt’s view that [Appellant] is playing games and in

exercising our discretion we have considered the entire record of

these cases. We realize that the Supreme Court has announced

in Carrasquillo that these types of motions should be liberally

granted, however, we also note the Court said that such a motion

“has its limits, consistent with the affordance of a degree of

discretion to the common pleas courts.” We believe that

[Appellant] has reached that limit and accordingly exercise our

discretion to deny him relief.

Id. at 2-3 (unpaginated and footnote omitted).

On May 26, 2017, Appellant filed a pro se motion for reconsideration,

which reiterated his arguments that he did not sufficiently review the plea and

“was led to believe that if he did not take the offer[,] the Three Strikes

Provision would be invoked.” Appellant’s Mot. for Recons., 5/26/17, at 1

(unpaginated). In support, he claimed that one of the two robberies in

question would not qualify as a crime of violence as there was no allegation

of a weapon, and that his “past record would . . . show the same.” Id. at 2

(unpaginated).

On June 2, 2017, the trial court held a sentencing hearing, at which the

trial court verified that Appellant wished to continue to proceed pro se.

Thereafter, the following exchange occurred:

-7-

J-A18033-20

THE COURT: So your desire is to represent yourself on your

motion to have my order of May 24, 2017, vacated and let you

withdraw your plea; is that right?

[Appellant]: Yes, Your Honor.

THE COURT: So do you want to make your argument?

[Appellant]: Although I am in opposition of the sentencing matrix

being used, I mean, you know, I will plead guilty to it. But the

sentencing matrix used that we’re using is a deadly weapon

enhancement matrix is what I am in opposition to.

N.T. Sentencing Hr’g, 6/2/17, at 3.

The trial court, the Commonwealth, and Appellant then discussed the

deadly weapon enhancement. Id. at 3-5. The Commonwealth noted that

Appellant brandished a knife in the robbery at docket no. 673-2016, which is

why the Commonwealth sought the deadly weapon used matrix. Id. at 5.

The Commonwealth reiterated it had no objection to the trial court imposing

concurrent sentences. Id. The trial court noted that at the guilty plea hearing,

Appellant’s guilty plea colloquy “reference[d] the knife in the one and not in

the other,” to which Appellant responded, “Correct.” Id. at 5; accord N.T.

Guilty Plea Hr’g, 2/2/17, at 7.

The trial court then stated as follows:

THE COURT: Do you have any other argument as to why I should

change my mind?

-8-

J-A18033-20

[Appellant]: I do not, Your Honor. I think the victims need closure

on both sides. I think I took up enough of the [c]ourt’s time. I

believe that we should just move forward. . . .[8]

THE COURT: All right. So you just told me you want to move on

with this; is that correct?

[Appellant]: I do want to move on although I do want to make on

the record intention that I do not agree with the deadly weapon

enhancement and I will be filing the proper motion post-sentence.

THE COURT: Understood. So you had an opportunity to think this

over?

[Appellant]: Yes, Your Honor. . . .

N.T. Sentencing Hr’g, 6/2/17, at 6-7.

Appellant then submitted documents, after which the following

discussion occurred:

THE COURT: All right. So as I understand it, you are withdrawing

your motion to withdraw your guilty plea;[9] however, you are

contesting the guideline that applies?

[Appellant]: Correct.

THE COURT: All right.

[Appellant]: I am contesting the weapon being used, possessed.

[THE COURT]: Just so we’re clear on the record here though,

you’re making a decision to withdraw the request or withdraw your

guilty plea, that’s clear; is that right?

____________________________________________

8We omitted an unrelated discussion about the status of one of Appellant’s

ongoing cases in another county.

9Because the trial court previously denied Appellant’s presentence motion to

withdraw his guilty plea, the trial court was presumably referencing

Appellant’s then-unresolved pro se motion for reconsideration.

-9-

J-A18033-20

[Appellant]: That’s correct, Your Honor.

Id. at 7.

Subsequently, the trial court and Appellant discussed whether Appellant

was threatened into taking the plea:

THE COURT: . . . And then you said in one of your motions [to

withdraw his guilty plea] here that you were bullied into this, yet

when I read through all this stuff, which I did yesterday, your plea

was actually your counter offer to the plea offer made by the

[Commonwealth].

[Appellant]: Correct. Correct.

THE COURT: So that made no sense to me, why you would say

you were bullied into that plea when in fact you suggested it.

[Appellant]: The plea I suggested was the consecutive sentence

under the basic sentencing matrix, minus the deadly weapon

enhancement, understood, again, I contest the deadly weapon

enhancement, I am sorry, but—

THE COURT: So do you understand how it would be difficult at

times for me to believe when you are sincere and when you are

not?

[Appellant]: I do, Your Honor. . . .

Id. at 10. The trial court then sentenced Appellant to thirty-six to seventy-

two months’ imprisonment. Id. at 11.

On June 12, 2017, Appellant filed a pro se post-sentence motion to

withdraw his guilty plea. Appellant claimed that he should be permitted to

withdraw his guilty plea because the three strikes provision could not apply to

him. Post-Sentence Mot., 6/12/17, at 1 (unpaginated). Appellant asserted

that Attorney Malloy informed him that if he did not accept the plea, the

- 10 -

J-A18033-20

Commonwealth would invoke the three strikes provision. Id. Appellant then

argued as follows:

[Appellant], and only after taking the plea offer, and doing

research on his own, asked [Attorney Malloy] about the issue with

the plea offer “being sentence[d] under the deadly we[a]pon

enhancement” [and he] wanted to withdraw such plea offer [due]

to the misguided information in order to bull[y Appellant into]

taking the plea.

Id. at 2 (unpaginated).

On October 4, 2017, the trial court held a hearing on Appellant’s pro se

post-sentence motion to withdraw his guilty plea. Among other arguments,

Appellant reiterated that the three strikes provision did not apply and that his

plea was unlawfully induced. See, e.g., N.T. Hr’g, 10/4/17, at 6 (Appellant

arguing that “Me being fearful of a 25-year minimum sentence, I’m being

faced with, hey, take a three to six or a 25-year sentence”),10 9 (arguing his

guilty plea was unlawfully induced because he “was given the wrong

information”). On October 12, 2017, the trial court denied Appellant’s post-

sentence motion to withdraw his guilty plea.

Appellant timely appealed,11 and raises the following issues:

____________________________________________

10A second conviction for a crime of violence results in a ten-year mandatory

minimum sentence and not a twenty-five year mandatory minimum sentence.

42 Pa.C.S. § 9714(a)(1).

11On November 20, 2017, the trial court docketed Appellant’s notice of

appeal, which included a certificate of service dated October 30, 2017. It

appears the trial court may have received the notice of appeal earlier, as on

November 8, 2017, the trial court ordered Appellant to comply with Pa.R.A.P.

- 11 -

J-A18033-20

1. Whether the trial court erred when it denied Appellant’s motion

to withdraw guilty pleas where the trial court applied the incorrect

legal standard?

2. Whether the trial court erred when it denied Appellant’s motion

to withdraw guilty pleas where Appellant established fair and just

reasons for withdrawing his guilty pleas?

3. Whether the trial court erred when it denied Appellant’s motion

to withdraw guilty pleas where the Commonwealth of

Pennsylvania failed to establish that it would be substantially

prejudiced by the withdrawal of Appellant’s guilty pleas?

Appellant’s Brief at 3.

____________________________________________

1925(b) within twenty-one days. On December 1, 2017, the trial court

docketed Appellant’s Rule 1925(b) statement, which had a certificate of

service dated November 27, 2017. The trial court filed its Rule 1925(a)

opinion on December 8, 2017. This Court dismissed Appellant’s appeal due

to his failure to file a brief. Order, 6/5/18. On December 28, 2018, Appellant

filed a motion to reinstate his direct appeal rights nunc pro tunc, which the

trial court granted on January 25, 2019.

The trial court appointed Gary F. Vitko, Esq., as Appellant’s appellate counsel.

Order, 1/25/19. According to the trial court, Attorney Vitko never received

the court’s January 25, 2019 order, however. On June 4, 2019, the trial court

again reinstated Appellant’s direct appeal rights nunc pro tunc and served the

order on Attorney Vitko. Order, 6/4/19. On July 9, 2019, the trial court

ordered Appellant to comply with Rule 1925(b). Attorney Vitko filed an

untimely Rule 1925(b) statement on October 4, 2019, which raised one claim:

the trial court “erred in dismissing the PCRA of [Appellant] because the claims

raised involves errors that would render the proceedings so unfair that it would

constitute a miscarriage of justice.” Rule 1925(b) Statement, 10/4/19.

On November 19, 2019, the trial court removed Attorney Vitko as appellate

counsel and appointed Toby McIlwain, Esq., as appellate counsel. Order,

11/19/19. Attorney McIlwain moved to have this Court remand the matter to

the trial court in order for him to file an amended Rule 1925(b) statement.

Attorney McIlwain filed an amended Rule 1925(b) statement, and the trial

court prepared a responsive opinion. Attorney McIlwain currently represents

Appellant.

- 12 -

J-A18033-20

We summarize Appellant’s arguments for all three issues together, as

they are interrelated. Appellant argues that the trial court erred by denying

his presentence motion to withdraw his guilty plea by using an incorrect legal

standard. Id. at 12-13. Appellant then summarizes the law for a presentence

motion to withdraw guilty plea and challenges the trial court’s reasoning. Id.

at 13-19; see id. at 14 (arguing that the trial court abused its discretion by

applying “an incorrect legal standard”). Appellant argues that his presentence

motion to withdraw his guilty plea set forth “fair and just reasons” for

withdrawal. Id. at 20.

Appellant explains that the Commonwealth could not invoke the three

strikes provision against him because he had never been previously convicted

of a violent crime. Id. at 23-24. Appellant emphasizes that the “clear and

unambiguous language of the statute sets forth that the Three-Strikes

Provision is triggered only in instances where a defendant had previously been

convicted of a crime of violence at the time the current offense was

committed.” Id. at 24 (emphases and citation omitted). Appellant concludes

that he could not have knowingly, intelligently, and voluntarily entered a guilty

plea given the Commonwealth’s threat was not supported by the law. Id. at

24-25. Finally, Appellant claims the Commonwealth failed to establish it would

be substantially prejudiced. Id. at 32.

The Commonwealth counters that Appellant withdrew his presentence

motion to withdraw his guilty plea. Commonwealth’s Brief at 4. The

- 13 -

J-A18033-20

Commonwealth therefore reasons that “any later request made to withdraw

[Appellant’s] plea in a post-sentence motion must have met the higher burden

of ‘manifest injustice’ required to withdraw a guilty plea post-sentence.” Id.

at 5. The Commonwealth, however, stated that it would “proceed . . . to argue

based upon the presumption that this Court is reviewing a denial of

[Appellant’s] pre-sentence motion to withdraw [his] guilty plea . . . .” Id.

In support, the Commonwealth disagrees with Appellant’s argument

that the trial court misapplied Carrasquillo. Id. at 5-7. The Commonwealth

reiterates the trial court’s reasoning, which we summarize below, and

contends the trial court correctly applied the “fair and just reason” standard

for resolving a presentence motion to withdraw a guilty plea. Id. at 6. The

Commonwealth next argues that Appellant’s allegation that “he was bullied or

pressured into the plea” is “belie[d]” by the record. Id. at 7. The

Commonwealth emphasizes that Appellant signed a written guilty plea

colloquy identifying the maximum possible sentence and acknowledged he

was not pressured into accepting the plea. Id. at 7-8. The Commonwealth

concludes that the trial court correctly held Appellant failed to establish a “fair

and just” reason for withdrawing his plea. Id. at 9. Therefore, the

- 14 -

J-A18033-20

Commonwealth reasons, the trial court was not required to consider whether

the Commonwealth would be prejudiced.12 Id.

The trial court asserted that Appellant’s “plea was not unlawfully

induced.” Trial Ct. Op., 12/8/17, at 1. The trial court cites to the written

guilty plea colloquy and argues that Appellant has a history of “representing

one thing under oath and then retracting or modifying those statements in

later proceedings or pleadings.” Id. at 2 (footnote omitted). The trial court

summarily concludes that Appellant “has not pointed out, nor [has it] found

in [its] independent review of the record, any false representations relative to

the ‘three strikes law.’”13 Id. at 4 (formatting altered).

We review a trial court’s ruling on a pre-sentence motion to withdraw a

guilty plea for an abuse of discretion. Commonwealth v. Elia, 83 A.3d 254,

261 (Pa. Super. 2013). Our Supreme Court has held that “[t]he proper inquiry

on consideration of such a withdrawal motion is whether the accused has

made some colorable demonstration, under the circumstances, such that

permitting withdrawal of the plea would promote fairness and justice.”

Carrasquillo, 115 A.3d at 1292; see also Pa.R.Crim.P. 591(A) (stating that

____________________________________________

12The Commonwealth’s appellate brief did not address Appellant’s contention

that it misstated the three strikes doctrine when it discussed the plea with

Appellant.

13 Except for that sentence, the trial court did not otherwise address the issue

of the application of a mandatory minimum sentence. The trial court also did

not address the issue of whether the Commonwealth could apply the three

strikes provision if Appellant elected to proceed to trial.

- 15 -

J-A18033-20

“[a]t any time before the imposition of sentence, the court may, in its

discretion, permit . . . the withdrawal of a plea”).

With respect to the three strikes statute, 42 Pa.C.S. § 9714(a)(1),

provides as follows:

(1) Any person who is convicted in any court of this

Commonwealth of a crime of violence shall, if at the time of the

commission of the current offense the person had previously been

convicted of a crime of violence, be sentenced to a minimum

sentence of at least ten years of total confinement,

notwithstanding any other provision of this title or other statute

to the contrary.

42 Pa.C.S. § 9714(a)(1). Our Courts have held that the “previous conviction

must occur prior to commission of subsequent offense” in order for the

defendant to be sentenced as a repeat offender. Commonwealth v.

Shiffler, 879 A.2d 185, 194 (Pa. 2005) (summarizing Commonwealth v.

Dickerson, 621 A.2d 990, 992 (Pa. 1993)); see also Commonwealth v.

McClintic, 909 A.2d 1241, 1250 (Pa. 2006) (noting, “[p]lugging [robbery]

into Section 9714(a)(1) requires a sentence enhancement where a person is

convicted of robbery, if at the time he or she committed the current robbery,

the person had another conviction for a crime of violence”).

For example, in Commonwealth v. Barbosa, 819 A.2d 81 (Pa. Super.

2003), the Court resolved an allegation that the Commonwealth

misrepresented the application of the three strikes statute in connection with

the entry of a negotiated guilty plea. Barbosa, 819 A.2d at 82. Specifically,

in Barbosa, the defendant appealed from an order denying his Post-

- 16 -

J-A18033-20

Conviction Relief Act petition. Id. The defendant claimed that the

Commonwealth incorrectly stated he “was subject to a life sentence under the

‘three strikes’ rule.” Id. The defendant argued that the Commonwealth

“falsely represented that if he did not accept the offered plea, he would be

subject to Pennsylvania’s ‘three strikes’ provision . . . .” Id. at 83. The PCRA

court denied relief without a hearing, and the defendant appealed. Id. at 82.

In resolving the defendant’s issue, the Barbosa Court explained as

follows:

Our appellate courts have directed the withdrawal of guilty pleas

in certain circumstances where the defendant justifiably was

unaware of or misled about the “compared to what” of the

maximum sentence. In Commonwealth v. Hodges, 789 A.2d

764 (Pa. Super. 2002),[14] a 16-year-old defendant was permitted

to withdraw a negotiated plea where he pled guilty to avoid the

death penalty but was in fact ineligible for the death penalty

because of his age. Similarly, in Commonwealth v. Lenhoff,

796 A.2d 338 (Pa. Super. 2002),[15] the defendant was permitted

to withdraw a negotiated plea where, although his sentence was

in accord with the plea bargain, he was told that he faced a 10-

year maximum when it was actually less.

At the same time, we do not believe that every mistake in

computing the possible maximum or advising the defendant of the

possible maximum will amount to manifest injustice justifying the

withdrawal of a guilty plea; the mistake must be material to the

defendant’s decision to plead guilty. This determination must be

fact- and case-specific. Certainly, if a defendant were to plead

guilty to avoid a death sentence when there is no possibility of a

death sentence, then this mistake would clearly be material. On

____________________________________________

14In Hodges, the defendant had filed a post-sentence motion to withdraw his

guilty plea. Hodges, 789 A.2d at 765.

15 In Lenhoff, the defendant filed a post-sentence motion to “allow further

plea negotiations.” Lenhoff, 796 A.2d at 340.

- 17 -

J-A18033-20

the other hand, suppose there were a robbery of five people

together with conspiracy and weapons charges, and the defendant

were told that he faced a maximum sentence of 70 to 140 years

rather than 65 to 130 years. If the plea negotiations resulted in

a sentence of 5 to 10 years, then this mistake would not be

material.

[The defendant’s] situation, however, falls somewhere in the

middle. Our decision, therefore, is to remand for a determination

as to whether (a) [the defendant] knew of the possible maximum

sentence and (b) whether any lack of knowledge or mistaken

knowledge on [the defendant’s] part was material to his decision

to enter the plea.

Id. at 83.

The Barbosa Court explained its mandate by reiterating that “the failure

to advise a defendant of the possible maximum sentence will not necessarily

justify the withdrawal of an otherwise voluntary guilty plea. To amount to

manifest injustice justifying withdrawal of the plea, the mistake must be so

great as to have a material effect on the defendant’s decision to plead guilty.”

Id. at 86.

Here, like the defendants in Hodges and Lenhoff, [the

defendant] claims that he was threatened with maximum

sentences that could not lawfully be imposed and that neither his

lawyer nor the court told him the correct maximum sentence.

Because [the defendant] claims that he was advised of a possible

life sentence when that in fact was not permissible, it cannot be

said that the record is so clear that any mistaken belief about the

maximum would not have materially affected his decision to enter

the plea.

Because we find that the facts alleged in [the defendant’s] PCRA

petition, if proven, would entitle him to relief, we hold that the

PCRA court abused its discretion in refusing to conduct a hearing.

- 18 -

J-A18033-20

Id. The Barbosa Court therefore reversed the denial of PCRA relief and

remanded for a hearing. Id. at 87.

Initially, as we set forth above, on May 24, 2017, the trial court denied

Appellant’s March 8, 2017 pro se pre-sentence motion to withdraw his guilty

plea. Order, 5/24/17, at 1. At Appellant’s sentencing hearing, however,

Appellant agreed to the trial court’s statement that he was “withdrawing [his]

motion to withdraw [his] guilty plea.” N.T. Sentencing Hr’g at 7. Appellant,

however, cannot withdraw a motion that the trial court previously resolved.

Therefore, notwithstanding the parties’ and the trial court’s mutual

misunderstanding, any request for withdrawal could only have been in

reference to Appellant’s pro se motion for reconsideration.

Turning to the merits, as we quoted above, the Commonwealth admitted

that it “would seek [imposition of the three strikes doctrine] if our intent was

to try these cases separately.” N.T. Presentence Mot. to Withdraw Guilty Plea,

5/23/17, at 2-3. The Commonwealth explained that if it “had received a

conviction on the first case, then we would proceed to trial on the second case.

And that’s when the three strikes come into play, because if we were

successful on conviction to one of the first degree felonies, then that would

trigger that statu[t]e and that would enhance the penalty that he could receive

on the second case.” Id. As we stated previously, the trial court held that it

found no “false representations relative to the ‘three strikes law.’” Trial Ct.

Op. at 4 (formatting altered).

- 19 -

J-A18033-20

Here, Appellant argues that because he had no prior conviction for a

crime of violence, Section 9714(a)(1) could not apply to him. The

Commonwealth, however, claimed that “the three strikes comes into play,” if

it obtained a conviction on one robbery, and then proceeded to trial on the

second robbery. N.T. Mot. to Withdraw Guilty Plea at 2-3. The

Commonwealth’s position contradicts our precedents stating that “the

previous conviction must occur prior to commission of subsequent offense.”

Shiffler, 879 A.2d at 194 (emphasis added). But neither the Commonwealth

nor the trial court addressed whether the three strikes provision would apply

given the two robberies were committed on December 2, and December 6,

2015, and there was no previous conviction. See id. Under the

circumstances, we deem it prudent to remand for a determination by the trial

court as to whether the three strikes provision would apply. If the trial court

holds that the Commonwealth misinformed Appellant, then the trial court

must resolve whether Appellant “made [a] colorable demonstration, under the

circumstances, such that” the trial court should permit Appellant to withdraw

his plea. See Carrasquillo, 115 A.3d at 1292.

Accordingly, we vacate the judgment of sentence, vacate Appellant’s

guilty plea, vacate the order denying Appellant’s presentence motion to

withdraw his guilty plea, and remand for further proceedings.

- 20 -

J-A18033-20

Judgment of sentence vacated. Guilty plea vacated. Order denying

Appellant’s presentence motion to withdraw his guilty plea vacated. Case

remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/18/2021

- 21 -