Com. v. Hull, J. ( 2020 )

J-S73003-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN HULL :
:
Appellant : No. 475 MDA 2019
Appeal from the Judgment of Sentence Entered February 21, 2019
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0000565-2018
BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 10, 2020
Appellant, John Hull, appeals from the judgment of sentence entered
following his conviction of aggravated assault.1 We affirm.
In an information filed on March 3, 2018, Appellant was charged with
several crimes in relation to his striking David Beavers in the head multiple
times with a pool stick. On January 7, 2019, Appellant pled guilty to
aggravated assault in exchange for the Commonwealth dropping the
remaining charges.
The trial court explained the subsequent procedural history as follows:
On February 21, 2019, [Appellant] was sentenced to a
minimum term of 40 months to a maximum term of 96 months
incarceration at a state correctional institution followed by 24
months of consecutive special probation. [Appellant] was also
ordered to pay restitution. On March 4, 2019, [Appellant] filed a
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1 18 Pa.C.S. § 2702(a)(4).
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Petition for Reconsideration of Sentence through defense counsel
William Thompson, Esquire. Before [Appellant’s] Petition was
decided by this court, Mark Mack, Esquire, entered his appearance
for [Appellant] on March 19, 2019, and filed a Notice of Appeal on
March 20, 2019. After being ordered to do so, [Appellant] filed a
[Pa.R.A.P. 1925(b) statement] on April 14, 2019. The
Commonwealth filed a Response on May 6, 2019. [Appellant’s]
Petition for Reconsideration of Sentence was denied by this court
on May 7, 2019.
Trial Court Opinion, 5/21/19, at 1 (footnote omitted). On May 7, 2019, the
trial court entered an order denying Appellant’s post-sentence motion.
Thereafter, the trial court complied with Pa.R.A.P. 1925(a).2
Appellant presents the following issue for our review:
1. Did the lower court err in accepting the Appellant’s guilty plea
that was not voluntarily, knowingly, and intelligently tendered?
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2We note that the instant appeal was filed prematurely while Appellant’s post-
sentence motion was pending before the trial court. “No direct appeal may
be taken by a defendant while his or her post-sentence motion is pending.”
Pa.R.Crim.P. 720, cmt. See Commonwealth v. Claffey, 80 A.3d 780, 783
(Pa. Super. 2013) (noting that appeal filed while timely post-sentence motions
were pending may be premature). The trial court denied Appellant’s post-
sentence motion after this appeal was filed.
In similar cases, wel have addressed a premature appeal when “the
subsequent actions [of the] court fully ripened it.” Commonwealth v.
Cooper, 27 A.3d 994, 1004 (Pa. 2011). See also Commonwealth v. Little,
879 A.2d 293, 296 n.6 (Pa. Super. 2005) (permitting premature appeal of
petition for reconsideration when order denying petition was entered between
filing of notice of appeal and consideration by appellate court);
Commonwealth v. Hamaker, 541 A.2d 1141, 1142 n.4 (Pa. Super. 1988)
(permitting a premature appeal of post-trial motions and citing Pa.R.A.P. 905
(“A notice of appeal filed after the announcement of a determination but
before the entry of an appealable order shall be treated as filed after such
entry and on the day thereof.”)). Accordingly, we consider this appeal to be
timely.
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Appellant’s Brief at 4.
In his sole issue, Appellant argues that his guilty plea should be
withdrawn because it was not knowingly, intelligently, and voluntarily entered.
Appellant’s Brief at 14-28. Appellant asserts that his guilty plea colloquy was
insufficient because it did not include the nature of the charge under the plea
agreement, the factual basis for the plea, and the permissible consequences
or sentence of the offense. Id. at 14.
With respect to challenges to the validity of a guilty plea on direct
appeal, this Court has stated the following:
Settled Pennsylvania law makes clear that by entering a
guilty plea, the defendant waives his right to challenge on direct
appeal all nonjurisdictional defects except the legality of the
sentence and the validity of the plea.
Indeed, a defendant routinely waives a plethora of
constitutional rights by pleading guilty, including the
right to a jury trial by his peers, the right to have the
Commonwealth prove his guilt beyond a reasonable
doubt, and his right to confront any witnesses against
him. Furthermore, a defendant is permitted to waive
fundamental constitutional protections in situations
involving far less protection of the defendant than that
presented herein.
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. Failure to employ either measure
results in waiver. Historically, Pennsylvania courts adhere to
this waiver principle because it is for the court which accepted the
plea to consider and correct, in the first instance, any error which
may have been committed. Commonwealth v. Roberts, 237
Pa. Super. 336, 352 A.2d 140, 141 (1975) (holding that common
and previously condoned mistake of attacking guilty plea on direct
appeal without first filing petition to withdraw plea with trial court
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is procedural error resulting in waiver; stating, “(t)he swift and
orderly administration of criminal justice requires that lower
courts be given the opportunity to rectify their errors before they
are considered on appeal”; “Strict adherence to this procedure
could, indeed, preclude an otherwise costly, time consuming, and
unnecessary appeal to this court”).
Likewise:
Normally, issues not preserved in the trial court may
not be pursued before this Court. Pa.R.A.P. 302(a).
For example, a request to withdraw a guilty plea on
the grounds that it was involuntary is one of the claims
that must be raised by motion in the trial court in
order to be reviewed on direct appeal. Similarly,
challenges to a court’s sentencing discretion must be
raised during sentencing or in a post-sentence motion
in order for this Court to consider granting allowance
of appeal. Moreover, for any claim that was required
to be preserved, this Court cannot review a legal
theory in support of that claim unless that particular
legal theory was presented to the trial court. Thus,
even if an appellant did seek to withdraw pleas or to
attack the discretionary aspects of sentencing in the
trial court, the appellant cannot support those claims
in this Court by advancing legal arguments different
than the ones that were made when the claims were
preserved.
Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008),
appeal denied, 601 Pa. 696, 972 A.2d 521 (2009).
Further, a defendant who attempts to withdraw a
guilty plea after sentencing must demonstrate
prejudice on the order of manifest injustice before
withdrawal is justified. A plea rises to the level of
manifest injustice when it was entered into
involuntarily, unknowingly, or unintelligently.
Commonwealth v. Lincoln, 72 A.3d 606, 609-610 (Pa. Super. 2013) (some
citations and quotation marks omitted) (emphasis added).
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Our review of the certified record reflects that Appellant did not preserve
his challenge to the voluntariness of his guilty plea by either objecting during
the plea colloquy or filing a timely post-sentence motion seeking to withdraw
the guilty plea.3 Pa.R.Crim.P. 720(B)(1)(a)(i). Accordingly, Appellant waived
any challenge to his guilty plea on direct appeal. Lincoln, 72 A.3d at 609-
610.
Moreover, if we were to ignore the waiver of Appellant’s challenge to his
guilty plea, we would affirm on the basis of the trial court’s opinion addressing
the knowing, intelligent, and voluntary nature of Appellant’s plea. See Trial
Court Opinion, 5/21/19, at 2-4.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/10/2020
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3 We note that, although Appellant filed a post-sentence motion, his claims
therein were limited to requests for reconsideration of his sentence. Post-
Sentence Motion, 3/4/19, at 1-3. Appellant did not seek permission to
withdraw his guilty plea.
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