J-S23040-22
2022 PA Super 178
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TREMAINE DIVINE JAMISON :
:
Appellant : No. 1355 MDA 2021
Appeal from the Judgment of Sentence Entered September 23, 2021
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0001365-2020
BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.*
OPINION BY COLINS, J.: FILED OCTOBER 14, 2022
Appellant, Tremaine Divine Jamison, appeals from the judgment of
sentence of 18 to 40 years’ incarceration, imposed after he pled guilty to third-
degree murder.1 For the reasons set forth below, we affirm.
On May 31, 2017, Appellant shot and killed Devon Brown (Victim)
following an argument and fight between them. N.T. Trial at 50-60, 77-78,
81-95, 115-31, 284-93, 389-91. Appellant fled the scene after the shooting
and was found by the police approximately two years later in Georgia in 2019,
id. at 56-58, 345-48, 391, and was charged with an open count of criminal
homicide and with possession of a firearm by a prohibited person. Criminal
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 2502(c).
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Information. Appellant moved to sever the firearms charge and that motion
was granted on April 1, 2021. Trial Court Order, 4/1/21.
Appellant’s jury trial on the homicide charge commenced on May 24,
2021. At trial, the Commonwealth sought a conviction of first-degree murder
and Appellant in his opening statement asserted that he was not guilty
because he shot Victim in self-defense. N.T. Trial at 34-35, 41-42. The
Commonwealth called 13 witnesses at trial, including several eyewitnesses
who testified that Appellant struck Victim first in the fight and pulled out a
knife when Victim was unarmed and that after Victim also got a knife,
Appellant went to retrieve a gun and shot Victim from a distance. Id. at 50-
60, 85-95, 125-31, 285-95.
On the third day of trial, after the Commonwealth rested its case,
Appellant entered a guilty plea to third-degree murder and the Commonwealth
in exchange amended the criminal homicide charge to third-degree murder.
N.T. Trial at 440-52; N.T. Guilty Plea at 2-11. Before the trial court accepted
Appellant’s guilty plea, Appellant signed a plea agreement and written plea
colloquy and the trial court conducted an oral colloquy in which it confirmed
that Appellant understood that he could be sentenced to 40 years in prison
and understood the third-degree murder charge to which he was pleading
guilty and the rights that he was giving up by pleading guilty. N.T. Guilty Plea
at 3-11; Plea Agreement; Written Guilty Plea Colloquy. During the oral
colloquy, Appellant expressed the view that he was not guilty and that the
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Commonwealth had gotten witnesses to lie, but repeatedly reaffirmed that he
wanted to plead guilty notwithstanding these beliefs when the trial court
advised him that he could proceed with the trial. Id. at 7-11.
Appellant’s sentencing was scheduled for July 29, 2021. N.T. Guilty Plea
at 11. On July 22, 2021, Appellant, represented by new counsel, filed a motion
to withdraw his guilty plea in which he asserted that the guilty plea was not
voluntary and knowing, that he should be allowed to withdraw the plea
because he is innocent of the charges, and that he entered the plea because
his trial counsel was unprepared. Motion to Withdraw Guilty Plea ¶8. On
August 31, 2021, the trial court held a hearing on the motion to withdraw the
guilty plea, at which Appellant testified but did not call any other witnesses.
N.T. Motions Hearing, 8/31/21, at 4-16. Following Appellant’s testimony and
argument by Appellant and the Commonwealth, the trial court denied the
motion to withdraw the plea on the ground that the guilty plea was voluntary
and knowing and that Appellant’s assertion of innocence was not a sufficient
basis for withdrawal of the plea because he had not proffered a plausible claim
of innocence and withdrawal of the plea would substantially prejudice the
Commonwealth. Id. at 22-24; Trial Court Order, 8/31/21. On September 23,
2021, the trial court sentenced Appellant to 18 to 40 years’ imprisonment for
third-degree murder. Sentencing Order. This timely appeal followed.
Appellant presents the following single issue for our review:
Did the trial court err or abuse its discretion in refusing to allow
the Defendant to withdraw his plea of guilty prior to sentencing?
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Appellant’s Brief at 2. We review the trial court’s denial of Appellant’s motion
to withdraw his guilty plea for abuse of discretion. Commonwealth v. Baez,
169 A.3d 35, 39 (Pa. Super. 2017); Commonwealth v. Islas,
156 A.3d
1185, 1187 (Pa. Super. 2017).
Appellant argues that the trial court abused its discretion in denying
withdrawal of his plea because he asserted that he is innocent of the charges
and because his plea was not voluntary and knowing. Neither of these
arguments has merit.
Where a defendant requests to withdraw his guilty plea before he is
sentenced, the trial court has discretion to grant the withdrawal and that
discretion is to be liberally exercised to permit withdrawal of the plea if two
conditions are present: 1) the defendant demonstrates a fair and just reason
for withdrawing the plea and 2) it is not shown that withdrawal of the plea
would cause substantial prejudice to the Commonwealth. Commonwealth
v. Carrasquillo, 115 A.3d 1284, 1291-92 (Pa. 2015); Baez,
169 A.3d at 39;
Islas,
156 A.3d at 1188; see also Pa.R.Crim.P. 591(A) (“At any time before
the imposition of sentence, the court may, in its discretion, permit, upon
motion of the defendant, … the withdrawal of a plea of guilty or nolo
contendere and the substitution of a plea of not guilty”). Appellant’s request
to withdraw his guilty plea fails on both of these grounds.
A plausible claim of innocence, supported by some facts or evidence in
the record, constitutes a fair and just reason for allowing pre-sentence
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withdrawal of a guilty plea. Commonwealth v. Garcia, 280 A.3d 1019,
1023, 1025-27 (Pa. Super. 2022); Islas,
156 A.3d at 1191-92. Where,
however, the defendant merely makes a bare assertion that he is innocent
without any proffer of any supporting basis for that claim, the trial court in its
discretion may deny withdrawal on the ground that the defendant has not
shown a fair and just reason for withdrawal of the plea. Commonwealth v.
Norton,
201 A.3d 112, 120-23 (Pa. 2019); Carrasquillo,
115 A.3d at 1292-
93; Commonwealth v. Hvizda,
116 A.3d 1103, 1105, 1107 (Pa. 2015);
Baez,
169 A.3d at 39-41.
Appellant’s assertion of innocence here was nothing more than a bare
claim of innocence. Appellant testified at the hearing only that he believed
that he was innocent because he acted in self-defense, without stating any
basis for his self-defense claim or pointing to any evidence or facts on which
a claim of self-defense could be found plausible or colorable. N.T. Motions
Hearing, 8/31/21, at 5. As the trial court found, N.T. Motions Hearing,
8/31/21, at 23-24, the evidence introduced by the Commonwealth at trial
showed that Appellant shot Victim from a distance at a time when Victim posed
no danger to him and therefore did not support a plausible claim of self-
defense. N.T. Trial at 53-56, 91-94, 128-31, 290-95; see 18 Pa.C.S. §
505(b)(2). Appellant pointed to no evidence to the contrary. Rather, the only
claim that Appellant made concerning this evidence was his subjective belief
that the Commonwealth’s witnesses lied, a belief that he held at the time that
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he chose to plead guilty. N.T. Motions Hearing, 8/31/21, at 15; N.T. Guilty
Plea at 7-9. Appellant pointed to no evidence that contradicted the witnesses’
testimony or showed other facts concerning the crime and made no claim that
he learned any new facts concerning the Commonwealth’s witnesses or
evidence after his plea. The trial court therefore did not abuse its discretion
in concluding that Appellant’s claim of innocence was not a sufficient reason
to permit pre-sentence withdrawal of his guilty plea.
Moreover, even if Appellant’s claim of innocence satisfied the
requirement of a fair and just reason for withdrawal of the plea, it could not
support withdrawal of the plea because the record established that withdrawal
of the plea would cause substantial prejudice to the Commonwealth. Where
a guilty plea is entered during a jury trial after the Commonwealth has called
witnesses and presented a substantial portion of its case in chief, withdrawal
of the plea is properly denied because such a plea withdrawal permits a
defendant to obtain a second trial before a new jury rather than returning the
parties to the situation they were in at the time of the plea and therefore
causes the Commonwealth to suffer substantial prejudice. Commonwealth
v. Whelan, 392 A.2d 1362, 1364 (Pa. 1978) (plurality opinion) (“Only when
compelling reasons exist, such as a court’s improper acceptance of a guilty
plea, is a court permitted, after the Commonwealth’s case had commenced
and a guilty plea entered, to allow the withdrawal of the plea of guilty”);
Commonwealth v. Morales,
305 A.2d 11, 13 (Pa. 1973) (motion to
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withdraw guilty plea properly denied on grounds of prejudice where plea was
entered after Commonwealth’s case in chief at trial); Baez, 169 A.3d at 41-
42 (prejudice to Commonwealth barred plea withdrawal where three
Commonwealth witnesses had testified at the time defendant entered his
guilty plea); Commonwealth v. Prendes,
97 A.3d 337, 353, 355 (Pa. Super.
2014), impliedly overruled on other issue by Commonwealth v. Hvizda,
116 A.3d 1103 (Pa. 2015) (withdrawal of plea entered at trial after the
Commonwealth’s case in chief causes substantial prejudice to
Commonwealth); Commonwealth v. Ammon,
418 A.2d 744, 748 (Pa.
Super. 1980) (prejudice to Commonwealth barred plea withdrawal where jury
had been selected and most important Commonwealth witnesses had testified
at the time defendant entered his nolo contendere plea). Here, Appellant
entered his plea on the third day of his jury trial, after the Commonwealth had
presented its entire case in chief. N.T. Trial at 440-52; N.T. Guilty Plea at 2-
11. Withdrawal of Appellant’s plea on a ground other than involuntariness or
other invalidity of the plea was therefore barred by prejudice even if Appellant
had satisfied the requirement that he show a fair and just reason for
withdrawal of the plea.
A guilty plea may be withdrawn, regardless of when the plea was
entered or the motion to withdraw was filed, if the defendant shows that the
plea was not voluntary and knowing. Commonwealth v. Hart, 174 A.3d
660, 664, 669 (Pa. Super. 2017); Prendes,
97 A.3d at 352; Commonwealth
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v. Pollard, 832 A.2d 517, 522 (Pa. Super. 2003). To establish that a guilty
plea is voluntary and knowing, the trial court must conduct a colloquy that
shows the factual basis for the plea and that the defendant understands the
nature of the charge to which he is pleading guilty, his right to a jury trial, the
presumption of innocence, the permissible sentencing range for the charge to
which he is pleading guilty, and the court’s power to reject terms of a plea
agreement. Commonwealth v. Jabbie,
200 A.3d 500, 506 (Pa. Super.
2018); Commonwealth v. Reid,
117 A.3d 777, 782 (Pa. Super. 2015);
Pollard,
832 A.2d at 522-23; Comment to Pa.R.Crim.P. 590. These matters
may also be shown by a written plea colloquy read and signed by the
defendant that is made part of the record and supplemented by an oral, on-
the-record examination. Reid,
117 A.3d at 782; Commonwealth v.
Morrison,
878 A.2d 102, 108-09 (Pa. Super. 2005) (en banc); Comment to
Pa.R.Crim.P. 590. A defendant is bound by the statements which he makes
during his plea colloquy and cannot assert challenges to his plea that
contradict his statements when he entered the plea. Jabbie,
200 A.3d at
506; Commonwealth v. Orlando,
156 A.3d 1274, 1281 (Pa. Super. 2017);
Commonwealth v. Muhammad,
794 A.2d 378, 384 (Pa. Super. 2002).
The plea colloquy here amply demonstrated that Appellant’s guilty plea
was voluntary and knowing. The trial court’s oral colloquy set forth the factual
basis of the plea and fully advised Appellant of the elements of the third-
degree murder charge to which he was pleading guilty and Appellant
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confirmed that he understood both the factual basis of the plea and the
elements of the crime. N.T. Guilty Plea at 5, 9-10. At the plea hearing and
in the plea agreement that he signed, Appellant was advised and confirmed
that he understood that the maximum sentence he could receive on his third-
degree murder plea was 40 years’ imprisonment, that his sentence would be
decided by the court and that there was no agreement concerning the
sentence that he would receive. Id. at 2-4; Plea Agreement. At the plea
hearing and in the written colloquy that he signed, Appellant was also advised
of his right to a jury trial and the presumption of innocence and confirmed
that he understood those rights and was giving them up in pleading guilty.
N.T. Guilty Plea at 4-7; Written Guilty Plea Colloquy at 3-6. Indeed, the trial
court specifically advised Appellant that by pleading guilty he gave up all rights
to challenge his conviction, except for challenges to the court’s jurisdiction,
challenges to the voluntariness of his plea, and challenges to the sentence
that the court imposed, and Appellant confirmed that he understood that those
were the only challenges that he could raise if he pled guilty. N.T. Guilty Plea
at 10-11. Appellant confirmed in his written plea colloquy that he understood
that the trial court was not required to accept the plea agreement. Written
Guilty Plea Colloquy at 7.
In addition, Appellant confirmed that he was not threatened or coerced
into pleading guilty. N.T. Guilty Plea at 9; Written Guilty Plea Colloquy at 8-
9. Although Appellant expressed unhappiness with the plea during the plea
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hearing and stated that he thought that the Commonwealth’s witnesses lied
and felt that the Commonwealth by the evidence it introduced against him
was forcing him to plead guilty, he repeatedly stated that he nonetheless
wanted to plead guilty rather than proceed with the trial. N.T. Guilty Plea at
7-9, 11. After Appellant expressed dissatisfaction with the plea, the trial court
made clear to Appellant that it was Appellant’s choice whether to plead guilty
and that he could proceed with the trial and Appellant unambiguously
responded that he wanted to plead guilty:
Q. Okay. So after going over this [written plea colloquy] with your
lawyer, you felt comfortable enough to sign it; correct?
A. No. I didn’t feel comfortable. I feel like it lied on me.
Q. I’m sorry?
A. I feel like it lied on me. I did all that to do all this to me. I feel
like you gave me a very messed up trial. You got people to come
in and lie on me. That’s what I feel like.
Q. All right. Well –
A. You got people come in and lie on me.
MR. SAURMAN [Appellant’s trial counsel]: Mr. Jamison, do you
understand the evidence is up to the jury to decide the truth.
THE COURT: Look, at the end of the day –
[THE DEFENDANT]: The DA lied on me. They had these people
come and lie on me. Yes, yes. I want to say my piece. Yes, I feel
like the DA had people come lie on me. So now I’m suffering for
something I ain’t even do, yeah.
THE COURT: Look, no one is forcing you in any way, shape
or form to enter a guilty plea. You’ve got to do it of your
own volition and I’ve got to be satisfied that you're doing
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it of your own volition. The jury is waiting to continue this
trial if that’s what you want to do.
THE DEFENDANT: Can I say something?
THE COURT: Mr. Jamison, I understand there are things you want
to say. You’ve said them –
THE DEFENDANT: I’m good, sir.
THE COURT: From my perspective, I need to know what –
THE DEFENDANT: I'm good, sir. I'm good. I apologize.
THE COURT: No need to apologize. Okay. Do you want to
continue and proceed?
THE DEFENDANT: No, no.
MR. SAURMAN: Do you want to plead? Is that
what you’re saying?
THE DEFENDANT: Oh, yeah, yeah, yeah.
…
Q. -- I understand that you weren’t necessarily comfortable with
it, but you did go over this document explaining your rights and
you signed the final page?
A Uh-huh.
Q. Okay. And you’ve indicated in that document, and correct me
if I'm wrong, that no one has threatened you in any way to plead
guilty?
A. No, sir.
Q. No one is forcing you in any way to plead guilty?
A. I feel like the DA is. Is forcing me to plead guilty. I feel like
that.
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Q. Well, I take that comment to mean that the evidence that’s
been presented that you don’t agree with?
A. At all. Not at all.
Q. Right. I understand that. Okay. Again, at the end of the day,
the question that I need to know is whether or not you
want to proceed with your guilty plea?
A. With the guilty plea, yes.
Q. Okay. And you seem clear on that?
A. Yes.
Id. at 7-9 (emphasis added). Appellant also represented to the trial court
that he had fully discussed the plea with his trial counsel and was satisfied
with trial counsel’s representation of him. Id. at 4-6; Written Guilty Plea
Colloquy at 8.
Appellant argues that his guilty plea was not knowing and voluntary
because his trial counsel allegedly misadvised him concerning the sentence he
would receive, because his trial counsel allegedly was not properly
representing him at trial, and because he was allegedly led to believe that he
could freely withdraw his plea. None of these contentions provides any basis
to conclude that Appellant’s guilty plea was invalid.
These contentions are all based on Appellant’s testimony at the plea
withdrawal hearing. N.T. Motions Hearing, 8/31/21, at 5-10, 15. The trial
court, who had the opportunity to observe Appellant’s demeanor, found that
Appellant’s testimony at the hearing was not credible. Trial Court Opinion at
9. This Court is bound by that credibility determination. Commonwealth v.
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Williams, 198 A.3d 1181, 1186 (Pa. Super. 2018) (“This Court will only
overturn a trial court’s credibility determination if it is irrational”);
Commonwealth v. Brown,
23 A.3d 544, 551 (Pa. Super. 2011).
Moreover, Appellant’s factual assertions are contradicted by the record
from his plea hearing. As discussed above, the plea hearing transcript and
plea agreement show that Appellant knew that he could be sentenced to up
to 40 years in prison and that there was no agreement that he would receive
any lower sentence. N.T. Guilty Plea at 2-4; Plea Agreement. Appellant
specifically represented in his written plea colloquy that he was satisfied with
his trial counsel and the dissatisfaction that he expressed at the plea hearing
was with the Commonwealth’s conduct and the witnesses’ testimony against
him, not with his counsel’s preparation or performance at trial. Written Guilty
Plea Colloquy at 8; N.T. Guilty Plea at 7-9.
Although two questions in the written plea colloquy referred to the
possibility of challenging his guilty plea based on ineffective assistance of
counsel, those questions did not advise Appellant that he had an automatic
right to withdraw his plea. Written Guilty Plea Colloquy at 6-7. Even if those
questions were capable of the interpretation that Appellant argues, he was not
led to believe that he could freely withdraw his guilty plea because the trial
court clearly advised Appellant that his only rights to challenge the plea would
be limited to challenges to the trial court’s jurisdiction and the voluntariness
of his plea. N.T. Guilty Plea at 10-11. In any event, misunderstanding by the
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defendant concerning the standard for withdrawal of his plea does not make
the plea involuntary or unknowing where, as here, the defendant was properly
advised of the rights he is waiving by his plea, the possible sentence that he
can receive and the factual basis and elements of the offense to which he is
pleading. Prendes, 97 A.3d at 344-45, 351-53.
For the foregoing reasons, we conclude that the trial court did not abuse
its discretion in denying Appellant’s motion to withdraw his guilty plea.
Accordingly, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2022
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