Com. v. Jainlett, K.Com. v. Jainlett, K.
Kevin Jainlett appeals nunc pro tunc from his judgment of sentence entered in the Court of Common Pleas of Philadelphia County for his convictions of person not to possess a firearm (
Jainlett was charged with fourteen counts related to the shooting of his ex-wife‘s son in their residence. On November 14, 2022, Jainlett, represented by trial counsel, entered an open guilty plea with no negotiated sentence in exchange for the Commonwealth withdrawing nine of the fourteen counts. At
Back on 11/16/2021, [during] an argument with [Jainlett‘s] prior wife, Lawreeshia Neal, and her two sons, [Jainlett] shot her one son, Dorian Silva, in the leg causing injuries requiring hospitalization.
After shooting Dorian, [Jainlett] and Lawreeshia Neal ran up the stairs. [Jainlett] was brandishing the gun. He went and grabbed another gun. Lawreeshia Neal turned to run down the steps and out of the house.
When she was running out of the house to get her and her son to safety, she shattered her heel, requiring hospitalization.
Two minors, [P.C], who was 10 years old at the time, and [J.J.], who was 5 years old at the time, were home during the shooting. Peighton was downstairs in close proximity to her brother when he was shot. After seeing her brother shot, Peighton ran to the corner store.
Two guns were recovered from [Jainlett‘s] vehicle. One was jammed. [Jainlett] is ineligible to possess a firearm because of a prior felony conviction. This all occurred in the City and County of Philadelphia.
N.T., 11/14/22, at 16-17. Jainlett signed a guilty plea colloquy form with the assistance of his trial counsel, and the trial court performed a guilty plea colloquy. At the conclusion of the hearing, Jainlett pleaded guilty to person not to possess a firearm, two counts of aggravated assault, and two counts of EWOC.
On December 1, 2022, Jainlett was sentenced to an aggregate term of three and a half to seven years’ incarceration followed by four years of
On December 13, 2023, Jainlett filed a pro se petition pursuant to the Post-Conviction Relief Act (“PCRA“),
On November 12, 2024, Attorney Marisa Anne Piccarreto, Esq. filed a post-sentence motion on Jainlett‘s behalf asserting that Jainlett wished to withdraw his guilty plea because he did not enter it knowingly, intelligently, and voluntarily, that his trial counsel was ineffective, and that his sentence was excessive. The motion was denied by operation of law. See Order, 3/11/25.
Jainlett timely appealed. Both Jainlett and the trial court complied with Pennsylvania Rule of Appellate Procedure 1925. See
Jainlett raises the following issues for our review.
Did the lower court err . . . by denying [Jainlett‘s] request to withdraw his guilty [plea] where the plea was not knowing, intelligent, or voluntary where the record is ambiguous because the signed guilty plea colloquy form did not match the negotiations in the guilty plea hearing on November 14, 2022, and where the charges pled were amended to add a charge of [EWOC] during the guilty plea hearing without additional time to consult with counsel to be fully informed as to the nature of the guilty plea? - Did the Trial Court err[] by denying [Jainlett‘s] request to withdraw his guilty plea or grant an evidentiary hearing where the plea was not knowing intelligent and voluntary because trial counsel was plainly [in]effective where [Jainlett] avers that trial counsel told him that the sentence would be lower than what was given, where the guilty plea colloquy form was ambiguous to what the negotiations were and where the full discovery was never provided to [Jainlett]?
- Did the Trial Court err when it imposed a sentence of three and-a-half to seven years aggregate incarceration because the sentence was excessive, more than necessary to protect the public, punish the defendant, and rehabilitate the defendant where [Jainlett] provided significant mitigation including sparing his children from testifying at trial, ran a business and provided for his family, where there is a significant gap in his criminal history as a productive member of society, and where the Court considered improper allegations and arrests in both the sentencing hearing and Commonwealth Memorandum that did not result in convictions?
Appellant‘s Brief, at 7-8.
At the outset we must address the reinstatement of Jainlett‘s post-sentence motion rights nunc pro tunc after he had already filed a post-sentence motion that had been denied.3
In his first issue, Jainlett asserts that the trial court abused its discretion by not permitting Jainlett to withdraw his guilty plea after sentencing. He asserts that his guilty plea was not voluntary, knowing, and intelligent because (1) during the guilty plea hearing, the Commonwealth added an additional EWOC charge; (2) the Commonwealth mentioned a Protection from Abuse violation and a charge for which he was not convicted; and (3) the guilty plea colloquy form contained ambiguities as to whether Jainlett understood the plea negotiations, and in support thereof alleges that the guilty plea written form only stated “will proceed to sentencing” under the section of the form to indicate any agreement between the parties. See Appellant‘s Brief, at 25. The Commonwealth argues that based on the written plea colloquy form and the
“It is well-settled that the decision whether to permit a defendant to withdraw a guilty plea is within the sound discretion of the trial court.” Commonwealth v. Dinell, 270 A.3d 530, 533 (Pa. Super. 2022) (citation omitted). “[I]n order to withdraw a plea after the imposition of sentence, a defendant must make a showing of prejudice which resulted in a ‘manifest injustice.‘” Commonwealth v. Alameda, 339 A.3d 504, 510 (Pa. Super. 2025), appeal denied, 353 A.3d 546 (Pa. 2026) (citation omitted). “Manifest injustice occurs when the plea is not tendered knowingly, intelligently, voluntarily, and understandingly.” Commonwealth v. Hart, 174 A.3d 660 (Pa. Super. 2017) (citation omitted). “A defendant‘s disappointment in the sentence imposed does not constitute ‘manifest injustice.‘” Commonwealth v. Pollard, 832 A.2d 517, 522 (Pa. Super. 2003) (citation omitted).
“Our law presumes that a defendant who enters a guilty plea was aware of what he was doing. He bears the burden of proving otherwise.” Commonwealth v. Reid, 117 A.3d 777, 783 (Pa. Super. 2015) (citation omitted). “A person who elects to plead guilty is bound by the statements he makes in open court while under oath and he may not later assert grounds for withdrawing the plea which contradict the statements he made at his colloquy.” Alameda, 339 A.3d at 510 (citation omitted). “In determining whether a guilty plea was entered knowingly and voluntarily, a court is free to
A valid plea colloquy informs the defendant of “1) the nature of the charges, 2) the factual basis for the plea, 3) the right to a jury trial, 4) the presumption of innocence, 5) the sentencing ranges, and 6) the plea court‘s power to deviate from any recommended sentence.” Commonwealth v. Jabbie, 200 A.3d 500, 506 (Pa. Super. 2018) (citation omitted); see also
Our review of the record indicates that Jainlett knowingly, voluntarily, and intelligently pled guilty. Jainlett signed a guilty plea colloquy form with the assistance of counsel. See N.T., 11/14/22, at 14-15. During the hearing, the plea colloquy form was amended to indicate that Jainlett was pleading guilty to two counts, not one, of EWOC and he initialed the form with counsel present; the trial court explained the recalculated potential sentencing consequences on the record. See id. at 8-9. Further, the trial court fully informed Jainlett with a thorough plea colloquy. See id. at 6-21. Among other things, the trial court informed Jainlett of the nature of the charges, asked Jainlett if he understood the factual basis of the plea recited by the
In his second issue, Jainlett asserts that his trial counsel was ineffective by advising Jainlett that he would receive a lesser sentence than what was imposed and for waiving the preparation of a presentence investigation and mental health report. See Appellant‘s Brief, at 27-29. The Commonwealth argues that Jainlett‘s claim is not reviewable on direct appeal and must await PCRA review. See Appellee‘s Brief, at 10-11. We agree with the Commonwealth.
Generally, “claims of ineffective assistance of counsel are to be deferred to PCRA review, [] such claims should not be reviewed upon direct appeal.” Commonwealth v. Bradley, 326 A.3d 982, 987-88 (Pa. Super. 2024) (citation omitted). Our Supreme Court has recognized three exceptions to this general rule: (1) the claim of ineffectiveness “is apparent from the record and meritorious to the extent that immediate consideration of the claim best serves the interests of justice,” (2) “there is good cause shown and the defendant has expressly and knowingly waived his right to seek PCRA review[,]” and (3)
Here, none of the exceptions apply. Any claim of ineffective assistance of counsel is not apparent from the record because the trial court did not hold a hearing to develop a record on the issue. See Alameda, 339 A.3d at 511 (declining direct review of a claim of plea counsel‘s ineffectiveness because there was no hearing on the issue). Jainlett has not demonstrated good cause or that he has waived his right to seek PCRA review. Lastly, because he is serving a term of incarceration, followed by a period of probation, he is not statutorily precluded from PCRA review. See
In his third issue, Jainlett challenges the discretionary aspects of his sentence. “A challenge to the discretionary aspects of a sentence must be considered a petition for permission to appeal, as the right to pursue such a claim is not absolute.” Commonwealth v. Warren, 350 A.3d 1018, 1030 (Pa. Super. 2025) (citation omitted). To invoke this Court‘s jurisdiction, we must determine:
(1) the appeal is timely; (2) the appellant has preserved his issue; (3) his brief includes a concise statement of the reasons relied upon for allowance of an appeal with respect to the discretionary aspects of his sentence; and (4) the concise statement raises a substantial question whether the sentence is inappropriate under the Sentencing Code.
Here, Jainlett timely appealed, preserved his issue in his post-sentence motion, and included a statement of reasons for allowance of appeal from the discretionary aspects of sentencing in his brief. Further, the issue he raises—that the sentencing court imposed an excessive sentence based on its consideration of impermissible factors and failure to consider mitigating factors—constitutes a substantial question. See Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (“an excessive sentence claim—in conjunction with an assertion that the court failed to consider mitigating factors—raises a substantial question.“).
Our standard of review for a challenge to the discretionary aspects of sentencing is well-established.
Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Agugliaro, 342 A.3d 105, 116 (Pa. Super. 2025) (citation omitted).
Jainlett argues that the trial court considered impermissible factors, such as facts that he did not plead to and prior arrests that did not result in conviction. See Appellant‘s Brief, at 34-35. Further, Jainlett asserts that the
At the conclusion of the sentencing hearing, the trial court gave the following explanation for the sentence imposed.
In fashioning a sentence today, the Court has taken into account Mr. Jainle[t]t‘s prior record score, offense gravity score and range, his acceptance of responsibility in the form of an open guilty plea. Additionally, I have taken into account what‘s marked as D-1 and D-2, which are the mitigation sentencing memo as well as letters of support for Mr. Jainlett, the Commonwealth‘s sentencing memo and the enclosures therein, as well as the victim impact statements heard today.
Sir, obviously a lot of things that led up to the day in question. That was apparent when the case was conferenced before me on November 14th, as it was scheduled for a jury trial in our jury trial program. Both counsel were frank about the issues on both defense side as well as the Commonwealth‘s side and reached a negotiation when it came to the charges that were being on open plea, waiver of PSI and mental health [evaluation].
I‘m aware, Mr. Jainlett, of your allocution here today, and I‘m taking into consideration the fact that you didn‘t want the children to have to testify during the course of this trial. I‘m taking that into account. I‘m also taking into account the recommendations made by both counsel and the victim impact statements here. This was an incredibly, by all characterizations of this night, even in the relative cold recitation of the facts, an extremely chaotic night in that home, an extremely dangerous night in that home. We have a case involving children witnessing violence within their family and in the place which they are supposed to feel the safest amongst those they are supposed to feel the safest with.
This Court, however, is not going to turn blinders to the fact that this seems to be an incident that was brewing for some time. It‘s difficult sometimes to create sentences on snapshots and moments in people‘s lives in terms of victims as well as [Jainlett]. Based on the documents I‘ve heard here, there are significant mitigating factors as well as factors that would tend to aggravate.
N.T., 12/1/22, at 46-48.
Our review indicates that the trial court weighed the mitigating factors and aggravating factors based on the facts of the case. It considered the mitigating factors set forth in Jainlett‘s sentencing memorandum. Additionally, the trial court expressly stated that it would not consider any facts outside of what Jainlett pled to and limited the victims’ statements to only those events. See id. at 10-13, 28-29, 35-36, 39. The trial court did not consider any impermissible factors. Jainlett‘s prior record score was 5 and the offense gravity score for the lead charge, person not to possess a firearm, was 11 which equates to a range of 72 to 90 months incarceration plus or minus 12 months. See N.T., 12/1/22, at 3;
Judgment of sentence affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 7/30/2026