Com. v. O'Donnell, D. ( 2023 )

J-S24036-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID LOUIS O'DONNELL :
:
Appellant : No. 1727 MDA 2022
Appeal from the Judgment of Sentence Entered November 23, 2022
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0000806-2022
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: AUGUST 22, 2023
Appellant David Louis O’Donnell appeals from the judgment of sentence
entered by the Court of Common Pleas of Berks County after Appellant pled
guilty to burglary and strangulation.1 Appellant challenges the trial court’s
decision to allow him to enter a plea and argues that his guilty plea was
involuntary due to the ineffectiveness of his plea counsel. We affirm.
On November 23, 2022, Appellant entered a negotiated guilty plea to
the burglary and strangulation charges. On the same day, the trial court
sentenced Appellant consistent with his plea agreement to two concurrent
terms of three to ten years’ imprisonment. Appellant signed a written
acknowledgment that he had received notice of his post-sentence and
appellate rights.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3502(a)(1)(i), 2718(a)(1), respectively.
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On December 2, 2022, Appellant filed a pro se notice of appeal while
represented by counsel. In the notice of appeal, which was dated November
27, 2022, Appellant indicated that he would “like to assert his right of post-
sentence motion” but requested that “higher courts” reconsider Appellant’s
sentence, review the validity and legality of his sentence, and evaluate
whether he had been denied the effective assistance of counsel. Appellant did
not serve plea counsel with the notice of appeal.
On December 20, 2022, the trial court forwarded Appellant’s notice of
appeal to this Court. There is no indication in the record that the trial court
clerk of courts sent plea counsel a copy of the notice of appeal. On December
27, 2022, this Court docketed Appellant’s notice of appeal.
On January 3, 2023, Appellant’s plea counsel, Kimm Montone, Esq., filed
a motion for appointment of counsel outside the Public Defender’s office, as
Appellant had alleged in the notice of appeal that plea counsel’s representation
was ineffective. On January 6, 2023, the trial court permitted Atty. Montone
to withdraw and appointed Douglas Whitman, Esq. to serve as appellate
counsel. Thereafter, Atty. Whitman complied with the trial court’s direction to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b).
Appellant raises the following issues for our review on appeal:
1. Whether the Guilty Plea Court erred in accepting
Appellant’s plea of guilty where Appellant indicated that
“… I’m still not remembering everything, I still have to
accept this happened[,]” suggesting that he accepted
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responsibility for his acts but that he didn’t actually
remember them?
2. Whether Guilty Plea Counsel was ineffective for
responding to Appellant’s lack of memory by asserting
the “clarification” that Appellant admits his guilt instead
of either consulting with Appellant or by clarifying the
matter on the record by eliciting the necessary
clarification from his client?
Appellant’s Brief, at 4.
Appellant first claims the trial court erred in accepting Appellant’s guilty
plea as voluntarily, intelligently, and knowingly made when Appellant made
remarks on the record that suggesting he was taking responsibility for his
actions but did not remember committing the crimes at issue.
As a general rule, “upon entry of a guilty plea, a defendant waives all
claims and defenses other than those sounding in the jurisdiction of the court,
the validity of the plea, and what has been termed the ‘legality’ of the sentence
imposed[.]” Commonwealth v. Jabbie, 200 A.3d 500, 505 (Pa.Super. 2018)
(quoting Commonwealth v. Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014)).
In addition, to preserve a challenge to a guilty plea, an appellant must
either “object at the sentence colloquy or otherwise raise the issue at the
sentencing hearing or through a post-sentence motion.” Commonwealth v.
Monjaras-Amaya, 163 A.3d 466, 468–69 (Pa.Super. 2017) (citations
omitted). “[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.” Jabbie, 200 A.3d at 506. See also
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Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot
be raised for the first time on appeal”).
As noted above, neither Appellant nor plea counsel filed a post-sentence
motion. Instead, Appellant filed a pro se document entitled “notice of appeal”
in which he asked this Court to reconsider his sentence and to evaluate “the
validity and legality of his sentence” as well as a claim of the ineffectiveness
of counsel. Notice of appeal, 12/2/22, at 1.
This Court will not allow a defendant to file a pro se motion while he or
she is represented by counsel as hybrid representation is not permitted; such
motions are deemed to be legal nullities. Commonwealth v. Williams, 151
A.3d 621, 624 (Pa.Super. 2016) (citation omitted). However, this Court is
required to docket a pro se notice of appeal despite the appellant being
represented by counsel as the notice of appeal protects the constitutional right
to appeal. Id.As such, to the extent that Appellant was attempting to file a post-
sentence motion while represented by counsel, such a filing was a legal nullity.
The trial court correctly docketed the filing as a notice of appeal and properly
forwarded it to this Court.
As a result, Appellant failed to raise his claim that his plea was not
knowing, intelligent, or voluntary before the trial court at sentencing or in a
post-sentence motion. Thus, this issue is waived on direct appeal.
Appellant also claims that plea counsel was ineffective in two respects.
First, Appellant claims that plea counsel failed to consult with Appellant during
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the plea hearing when Appellant accepted responsibility for his actions in
committing burglarizing the victim’s home and strangling the victim, but
claimed he did not remember taking these actions. Second, Appellant claims
that plea counsel abandoned him by failing to file a timely post-sentence
motion or seek to file a post-sentence motion nunc pro tunc.
Generally, claims of ineffectiveness of counsel are deferred to collateral
review in a PCRA petition, and should not be reviewed on direct appeal.
Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013). However, our
Supreme Court has recognized three exceptions to this rule requiring
ineffectiveness claims to be deferred to collateral review:
The first exception ... affords trial courts discretion to entertain
ineffectiveness claims in extraordinary circumstances where a
discrete claim of trial counsel ineffectiveness is apparent from the
record and meritorious to the extent that immediate consideration
best serves the interests of justice. The second exception ... gives
trial courts discretion to address ineffectiveness claims on post-
sentence motions and direct appeal if there is good cause shown
and the defendant knowingly and expressly waives his entitlement
to seek subsequent PCRA review of his conviction and sentence.
Commonwealth v. Delgros, 183 A.3d 352, 360 (Pa. 2018) (citing Holmes,
79 A.3d at 563-64). The third exception permits “trial courts to address claims
challenging trial counsel's performance where the defendant is statutorily
precluded from obtaining subsequent PCRA review.” Delgros, 183 A.3d at
361.
The second exception to allow review of ineffectiveness claims on direct
appeal is not applicable in this case as there is no indication in the record that
Appellant waived his right to PCRA review. Likewise, the third exception is
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not applicable as Appellant is not statutorily precluded from obtaining PCRA
review. Instead, Appellant solely claims that this Court should review his
ineffectiveness claims as he believes they are apparent from the record.
Appellant suggests that the ineffectiveness of plea counsel was clear as
plea counsel failed to consult with Appellant during the plea hearing. As noted
above, Appellant agreed to take responsibility for the crimes at issue but
admitted that he did not remember committing the crimes. The record does
not contain counsel’s explanation for his actions or inactions during the plea
hearing. As such, the record is deficient for this Court to review Appellant’s
claim on direct appeal.
In the same manner, Appellant’s claim of ineffectiveness based on plea
counsel’s failure to file a post-sentence motion is not apparent from the
record. There is no evidence in the record that Appellant asked his plea
counsel to file a post-sentence motion on his behalf. Further, while Appellant
claims that plea counsel should have filed a post-sentence motion after
learning that Appellant had filed a pro se notice of appeal, it is also unclear
when plea counsel became aware that Appellant had filed his pro se notice of
appeal as Appellant did not serve plea counsel with his notice of appeal. There
is no indication in the record that the trial court forwarded the pro se notice
of appeal to counsel for his review.
Therefore, as Appellant has not shown that he is entitled to review of
his claims of ineffectiveness of counsel on direct appeal, such claims must be
deferred to collateral review in a PCRA petition.
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For the foregoing reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/22/2023
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