Com. v. Snider, J. ( 2021 )

J-A20033-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH SNIDER :
:
Appellant : No. 1362 WDA 2020
Appeal from the Order Entered November 24, 2020
In the Court of Common Pleas of Butler County Criminal Division at
No(s): CP-10-CR-0000185-2017
BEFORE: PANELLA, P.J., BENDER, P.J.E., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: OCTOBER 12, 2021
Joseph Snider (Appellant) appeals from the order entered in the Butler
County Court of Common Pleas denying his motion to dismiss his guilty plea
to recklessly endangering another person (REAP).1 On appeal, he claims the
trial court was required to dismiss his conviction after his successful
completion of the Butler County Veterans Treatment Court Program. For the
reasons below, we affirm.
We glean the following facts from Appellant’s hearing admitting him into
Veterans Court.
[O]n November 2, 2016, in Lancaster Township, [Pennsylvania,
Appellant] did drive, operate, or [was] in actual physical control
of the movement of a vehicle after imbibing a sufficient amount
of alcohol such that the alcohol concentration in [Appellant’s]
blood or breath was .16 percent or higher within two hours after
____________________________________________
1 18 Pa.C.S. § 2705.
J-A20033-21
[Appellant] had driven, operated[,] or been in actual physical
control of the movement of a vehicle in violation of Section
3802[(c)] of the Vehicle Code.
N.T., Admission into Veterans Court, 7/19/17, at 3.2
Appellant was initially charged with driving under the influence (DUI)
(highest rate of alcohol).3 On June 28, 2017, Appellant, represented by James
Herb, Esquire, entered and subsequently withdrew a guilty plea for the
purposes of Veterans Court admission. On July 19, 2017, the Commonwealth
amended its complaint to include one count of REAP, and Appellant was
admitted into Veterans Court. That same day, Appellant completed “two
alternative pleas.” N.T., 7/19/17, at 3. Appellant would enter the first plea,
for one count of DUI (highest rate of alcohol), a first-degree misdemeanor, “in
the event of unsuccessful completion of Veterans Court.” Id. Appellant would
enter the second plea, for one count of REAP, a second-degree misdemeanor,
“in the event of successful completion of Veterans Court.” Id. at 4. Both plea
agreements were open, meaning the Commonwealth and Appellant did not
agree on a particular sentence before he entered the agreement. Id. at 3-4.
On July 11, 2018, after Appellant successfully completed the Veterans
Court Program,4 the trial court sentenced Appellant to a period of 12 months’
____________________________________________
2 The transcript is dated as having taken place on July 19, 2019; however, the
record confirms this to be a typographical error.
3 75 Pa.C.S. § 3802(c).
4 Appellant’s date of completion of the Veterans Court Program is not provided
in the record, but the “expected length of participation” in the program is 12
(Footnote Continued Next Page)
-2-
J-A20033-21
probation. On October 20, 2020, Appellant, still represented by Attorney
Herb, filed a petition for dismissal of his REAP charge. The trial court ordered
a hearing on the petition for dismissal on November 20, 2020, and
subsequently denied Appellant’s motion on November 23, 2020. This timely
appeal followed. Appellant timely complied with the trial court’s order to file
a concise statement of matters complained of on appeal pursuant to Pa.R.A.P.
1925(b).
Appellant raises one issue on appeal:
Did the [trial court] err when it failed to dismiss charges against
Appellant, where Appellant had completed all requirements of the
Veterans’ Treatment Court Program and the program policy states
charges will be dismissed upon successful completion?
Appellant’s Brief at 7 (emphasis in original).
Preliminarily, we note that the Butler County Veterans Court has two
program tracks. We cite the relevant portion of the Butler County Veterans
Treatment Court Policies and Procedures below:
Dismissal of Charges
Diversionary Track:
For participants completing the diversionary track, charges will
not be dismissed until the participant has graduated, completed
aftercare and paid any and all applicable fines; costs, and fees. It
is the responsibility of the participant to furnish proof of final
payment to their Veterans Treatment Court Probation Officer.
Once verified, the Office of the District Attorney will prepare a
Court order seeking dismissal of the charges. Further, upon
____________________________________________
months. Some participants may take longer. Veterans Treatment Court
Policies and Procedures, Butler County, at 15.
-3-
J-A20033-21
successful completion of aftercare, which includes remaining drug
and alcohol free along with not obtaining new charges, the
defendant who entered into the program as diversionary may
petition the court to have their criminal case/s expunged. The
participant must pay the appropriate fee in the Clerk of Courts
Office prior to the filing the petition for expungement. The Office
of the District Attorney will prepare the necessary paper work for
participant's expungement. Failure to successfully complete
aftercare may result in the District Attorney denying the
expungement request.
Non-Diversionary Track:
For participants completing the non-diversionary track, any
remaining supervision may terminate early if all requirements of
aftercare have been met including, but not limited to, all financial
obligations paid in full, remaining drug free and remaining free of
new criminal offense.
Veterans Treatment Court Policies and Procedures, Butler County, at 33. In
its Order dismissing Appellant’s motion, the trial court notes,
[t]he Butler County Veterans Treatment Court Policies and
Procedures Manu[a]l contains two tracks, a Diversionary Track[ ]
for participants who are offered the diversion program of ARD[,
Accelerated Rehabilitation Disposition]. The supervision for those
participants requires them to complete the requirements of Butler
County Treatment Court in order to obtain dismissal of their
charges. For the Non-Diversionary Track[ ], participants in Butler
County Veterans Treatment Court are offered a plea agreement
and remain in Veterans Treatment Court with bond conditions and
if they successfully complete the program they are sentenced
according to the plea agreement they entered. If they do not
successfully complete Veterans Treatment Court, they are
sentenced to an alternative plea agreement to which they have
entered into with the Butler County District Attorney’s Office.
Order, 11/24/20, at 2 (unpaginated).
In his sole issue on appeal, Appellant argues he is entitled to dismissal
of his charges as he successfully completed the Veterans Court Treatment
Program. Appellant’s Brief at 13. Appellant insists he and the Commonwealth
-4-
J-A20033-21
“are to reach a plea agreement as a requirement for entry into the program”
and that pleading guilty does not waive a claim of “validity of guilty plea[.]”
Id. at 14 citing Commonwealth v. Morrison, 173 A.3d 286, 290 (Pa. Super.
2017). Appellant maintains that “upon graduation [and] successful
completion” of the diversionary track of the program, the Commonwealth is
required to seek dismissal of charges. Id. at 15. The trial court stated
Appellant was not in the diversionary track of program, as evidenced by “entry
of the REAP [p]lea[,]” and as such was not entitled to dismissal. Id. at 16.
Appellant asserts that the terms “diversionary” and “non-diversionary” are not
defined anywhere in the treatment court Policies and Procedures and “the
record does not set forth that the plea to REAP is one on a non-diversionary
track.” Id. at 16-17. Appellant insists “the language or lack of definition” of
these terms caused confusion “acknowledged by the [trial court]” and
Commonwealth. Id. at 21. Appellant cites the Commonwealth’s comment
that “[it] understood where [Appellant] sees that the diversionary track
language in [its] policies and procedures ” as well as the trial court’s comment
“if we need to make some changes in the program, that might be appropriate.”
Id. at 21-22. Appellant contends that because of this, he entered an
unknowing plea. Id. at 17.
Before addressing Appellant’s claim on its merits, we note he argues the
validity of his plea for the first time on appeal.
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.
-5-
J-A20033-21
Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). Failure to employ either
measure results in waiver. Historically, Pennsylvania courts
adhere to this waiver principle because “[i]t is for the court which
accepted the plea to consider and correct, in the first instance,
any error which may have been committed.” [ ]
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.
Commonwealth v. Lincoln, 72 A.3d 606, 609-610 (Pa. Super. 2013)
(citations omitted). Because his arguments supporting an involuntary plea
are waived, we may not address them; we address his remaining argument
on its merits. See id.Appellant bases his argument on the alleged confusion caused by the
treatment court’s program, which has both a diversionary and non-
diversionary track, citing comments made by the Commonwealth and trial
court. However, Appellant mischaracterizes these comments to create his
own confusion. The Commonwealth simply stated it understood “where”
Appellant pulled the diversionary track language from. See N.T., Motion to
Dismiss H’rg, 11/20/20, at 6. The trial court commented on potential future
“changes in the program” and on Appellant’s “exemplary” work in the
program. See id. at 6-7. The trial court did not imply that any changes were
necessary due to any confusion on Appellant’s part, rather context makes it
clear that the trial court was simply acknowledging Appellant participated
successfully.
-6-
J-A20033-21
Moreover, at Appellant’s plea hearing, the Commonwealth clearly stated
the terms of each plea agreement, and Appellant stated he understood the
agreement’s terms:
The first plea [ ] is the plea in the event of unsuccessful completion
of Veterans Court. That will be a plea of guilty to count [2] of the
information, [DUI], second offense. The information sets forth
that on November 2, 2016, in Lancaster Township, [Appellant] did
drive, operate[,] or be in actual physical control of the movement
of a vehicle after imbibing a sufficient amount of alcohol such that
the Alcohol concentration in [Appellant’s] blood or breath was .16
percent or higher within two hours after [Appellant] [operated a
vehicle] in violation of [75 Pa.C.S. § 3802(c), a misdemeanor of
the first degree]. The agreed upon recommended sentence is a
straight or open plea.
* * *
The second plea to be recited will be the plea enforced in the
event of successful completion of Veterans Court. That will
be a plea of guilty to count four, [REAP], misdemeanor of the
second degree. The information in that regard will set forth at the
same time and place, [Appellant] did recklessly endanger other
persons or property. [ ] This is a straight and open plea as well[.]
* * *
[Plea counsel: D]o you understand that if you successfully
complete the Veterans Court program, that the [DUI] charge will
be withdrawn or dismissed by the [Commonwealth], that you will
enter a plea to [REAP] only?
[Appellant:] Yes.
N.T., Admission into Veterans Court, at 3-4, 7 (emphasis added). Appellant
stated he truthfully filled out a written colloquy admitting he understood the
terms and conditions of Veterans Treatment Court and plea counsel answered
any questions he had regarding his guilty plea. Id. at 6-7; Appellant’s
-7-
J-A20033-21
Veterans Treatment Court Guilty Plea Colloquy, 7/20/17, at 3. We note at the
plea hearing, counsel stated to Appellant that upon successful completion of
Veterans Court, the Commonwealth would withdraw or dismiss his DUI
charge and Appellant would “enter a plea to [REAP] only[.]” N.T., Admission
into Veterans Court, at 7. Now, on appeal, counsel is arguing for dismissal of
Appellant’s REAP charge despite explicitly explaining the contrary to Appellant.
After Appellant’s colloquy, the trial court confirmed again Appellant “met
with [ ] the Probation Office” where they “explained [ ] the requirements of
[ ] Veterans Court[.]” N.T., Admission into Veterans Court, at 9. At no point
in the terms of the plea agreement or Appellant’s colloquy did the
Commonwealth say or give Appellant the impression that his charge for REAP
would be dismissed. On the contrary, the Commonwealth specifically stated
in exchange for completion of the program, a plea resulting in a conviction for
REAP, a lesser charge, would be enforced and the harsher DUI conviction
would be averted. Because he successfully completed the program, he
escaped a DUI conviction and the consequences that follow. Thus, he has
received the benefit of his bargain.
We agree with the trial court’s conclusion that his plea agreement
included a conviction and sentence to one count of REAP, and thus Appellant’s
claim is meritless.
Order affirmed.
-8-
J-A20033-21
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2021
-9-