Com. v. Drum, C. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CAMERON ERWIN DRUM
Appellant No. 1251 MDA 2014
Appeal from the Judgment of Sentence June 3, 2014
In the Court of Common Pleas of Perry County
Criminal Division at No(s): CP-50-CR-0000307-2013
BEFORE: PANELLA, J., OLSON, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED JUNE 18, 2015
Cameron Erwin Drum appeals from the judgment of sentence imposed
on June 3, 2014, in the Court of Common Pleas of Perry County, as
amended on June 10, 2014, and June 16, 2014. On June 3, 2014, Drum
entered a nolo contendere plea to one count of driving under the influence of
alcohol (“DUI”) (general impairment – first offense).1 The court sentenced
Drum the same day to a term of 72 hours to 6 months in a county
correctional facility, with credit for time served. On appeal, Drum challenges
the validity of his plea. Based upon the following, we affirm.
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1
75 Pa.C.S. 3802(a)(1). Drum also pled guilty to two summary offenses,
driving on roadways laned for traffic, 75 Pa.C.S. § 3309(1), and operation of
a vehicle without inspection, 75 Pa.C.S. § 4703(a).
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The facts underlying Drum’s arrest and conviction are recited in detail
in the affidavit of probable cause supporting the criminal complaint. See
Criminal Complaint, 6/6/2013, Affidavit of Probable Cause, at 6. The
affidavit detailed the incident as follows: On May 26, 2013, Drum was
driving his car, with a disabled passenger inside, on South 4th Street, Oliver
Township, Perry County, Pennsylvania. He drifted off the road to the right
side of the street, sideswiping one car and rear-ending a second parked
vehicle. Pennsylvania State Troopers Scott A. Roussell and Michael App
responded to the scene. Trooper Roussell noted that Drum was swaying
from side to side and his speech was slurred. Drum also appeared sleepy
and was slow to respond to questions or instructions. The trooper indicated
Drum had glassy, bloodshot eyes, smelled of alcohol, and was unable to
show proof of insurance. Additionally, Drum refused to cooperate with any
field sobriety tests and would not take a preliminary breath test. The
troopers then arrested Drum for DUI and transported him to the station.
At the station, Trooper Roussell read Drum the Pennsylvania Implied
Consent Warning and requested to take a blood test. Drum refused and
requested to speak with an attorney. With a nurse present, the trooper then
read the warnings again and Drum still refused to take the test. Drum
became combative and it took three officers to restrain him. Two of the
officers received minor injuries during the incident.
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On June 3, 2014, a plea and sentencing hearing was held. Drum
entered a nolo contendere plea to one count of DUI, and pled guilty to two
summary offenses, as indicated above. Both parties and the trial court
agreed as part of Drum’s sentencing, the following would be indicated: “For
purposes of the requirement of [Pennsylvania Department of Transportation
(“PennDOT”)], the Court notes that there was no refusal [for the blood
alcohol testing].” N.T., 6/3/2014, at 12. The court then sentenced Drum to
a term of 72 hours to 6 months in a county correctional facility, with credit
for time served, and a $300.00 fine.2
On June 10, 2014, the court entered an amended sentencing order,
reflecting that Drum was directed to pay $500.00 in restitution. On June 16,
2014, the court entered a second amended sentencing order, stating: “The
record should reflect that [Drum] did NOT refuse the blood testing. It is
hereby DIRECTED that the Department of Transportation shall make the
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2
The court also ordered Drum to pay restitution, which would be
determined at a later date, and to pay a $50.00 fine for each summary
offense. In a related matter, at Docket No. CP-50-CR-0000308-2013, Drum
entered a guilty plea on January 9, 2014, to resisting arrest for his actions at
the police station following his DUI arrest. On June 3, 2014, the court
sentenced him to a term of 17 days to 5 months’ incarceration, to run
consecutively to the DUI sentence, 75 hours of community service, and a
$700.00 fine.
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appropriate changes to reflect same.” Order, 6/16/2014. Drum did not file
post-sentence motions but did file a notice of appeal on July 2, 2014.3
In his sole issue on appeal, Drum complains that he tendered an
unknowing and unintelligent nolo contendere plea because PennDOT did not
honor the plea agreement. Drum’s Brief at 10. He notes that as part of his
plea agreement, “there would be an indication that [he] did not refuse a
blood test.” Id. As noted supra, an order reflecting that agreement was
entered on June 16, 2014, and directed to PennDOT. Drum now concisely
asserts:
Said Order was sent to [PennDOT] and [Drum] was later
informed that a blood test result would need to be produced in
order to reinstate the driving privileges for the refusal
suspension.
[He] avers that he would not [have] entered the NOLO
Plea had he known that the agreement with the Commonwealth
would not have been honored by [PennDOT].”
Id.
Initially, we note that it is axiomatic that when a defendant enters a
guilty plea, he waives the right to challenge on appeal “all non-jurisdictional
defects except the legality of the sentence and the validity of the plea.”
Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa. Super. 2013).
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3
On July 24, 2014, the trial court ordered Drum to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Drum
complied with the court’s directive on July 30, 2014. The trial court issued
an opinion pursuant to Pa.R.A.P. 1925(a) on September 24, 2014.
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Furthermore, when a defendant seeks to withdraw a plea after sentencing,
he must demonstrate “prejudice on the order of manifest injustice before
withdrawal is justified.” Commonwealth v. Yeomans, 24 A.3d 1044, 1046
(Pa. Super. 2011) (citation omitted). “A plea rises to the level of manifest
injustice when it was entered into involuntarily, unknowingly, or
unintelligently.” Commonwealth v. Stork, 737 A.2d 789, 790 (Pa. Super.
1999), appeal denied, 764 A.2d 1068 (Pa. 2000). Here, Drum argues his
plea was entered unknowingly, because he did not get the benefit of the plea
agreement when PennDOT apparently did not reinstate his driving privileges.
Drum’s claim fails for several reasons. First, we conclude that it is
waived.
A defendant wishing to challenge the voluntariness of a guilty
plea on direct appeal must either object during the plea colloquy
or file a motion to withdraw the plea within ten days of
sentencing. Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). Failure to
employ either measure results in waiver. Commonwealth v.
Tareila, 895 A.2d 1266, 1270 n. 3 (Pa. Super. 2006).
Lincoln, 72 A.3d at 609-610. In the present case, Drum did not raise this
challenge during his plea hearing or, more appropriately based on the facts
of this case, file a post sentence motion seeking to withdraw his plea.
Therefore, it is not preserved for our review.4 See id.
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4
During the plea colloquy, the trial court informed Drum of his appellate
rights as follows:
(Footnote Continued Next Page)
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Second, we find that Drum’s argument amounts to nothing more than
a bald assertion that his plea was entered into involuntarily, unknowingly, or
unintelligently. See Commonwealth v. Hernandez, 39 A.3d 406, 412 (Pa.
Super. 2012) (failure to develop argument with citation to and analysis of
relevant authority waives issue on appeal); see also Pa.R.A.P. 2119(b). Of
most import, Drum fails to set forth what kind of suspension he actually
received.5 He did not include the letter he allegedly received from PennDOT
in his brief, which described why his driving privileges were not reinstated.
Drum also did not explain his expectation with regard to how the “no
refusal” statement in a sentencing order would interplay with his suspended
driving status pursuant to PennDOT. Without this information, we are
unable to discern whether PennDOT’s enforcement of the suspension was
_______________________
(Footnote Continued)
Now, I want to tell you, and your attorney can tell you more
thoroughly, what is necessary at this point is you do have a right
to appeal this matter. I’ll let the record show that the Court has
so advised and further advised counsel to discuss the same with
her client.
N.T., 6/3/2014, at 14. While the trial court did not specifically inform Drum
of the time period for filing a post-sentence motion, including a motion to
withdraw his guilty plea, the court did advise Drum that his plea counsel
would advise him all of his rights. We note that with respect to this appeal
in which Drum is represented by the same counsel, he does not allege he
was unaware of timing requirements.
5
Under the Pennsylvania Motor Vehicle Code, DUI-related suspensions can
range from 30 days up to 18 months. See i.e., 75 Pa.C.S. § 3804(e)(1)(i) &
(2)(i) (a one-year suspension of operating privilege for the DUI conviction
under 75 Pa.C.S. § 3802 (ungraded misdemeanor)).
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based on the sentencing order, and conterminously, the plea agreement, or
another factor. As such, we cannot conclude, based on Drum’s argument,
that his plea was improper.6 Accordingly, because we find the only issue
raised by Drum on appeal waived, we affirm the judgment of sentence.7
Judgment of sentence affirmed.
Judge Panella joins in the majority decision.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/18/2015
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6
We note that in its Rule 1925(a) opinion, the trial court found the record
demonstrates Drum made a knowing and voluntary decision to enter into a
nolo contendere plea. See Trial Court Opinion, 9/24/2014, at 3-4.
Nevertheless, it is well settled that an appellate court can affirm on any
basis. See In re Jacobs, 15 A.3d 509, n.1 (Pa. Super. 2011) (“[This Court
is] not bound by the rationale of the trial court, and may affirm on any
basis.”).
7
Moreover, if Drum persists in challenging his license suspension that was
imposed by PennDOT, we note that a proper avenue would be a separate
civil proceeding. See i.e., Clark v. DOT, Bureau of Driver Licensing, 62
A.3d 1059 (Pa. Commw. 2013).
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