Com. v. Grubbs, R.

J-S76020-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RICKY E. GRUBBS
Appellant No. 923 WDA 2014
Appeal from the Judgment of Sentence April 14, 2014
In the Court of Common Pleas of Indiana County
Criminal Division at No(s): CP-32-CR-0000514-2013
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OLSON, J.
JUDGMENT ORDER BY PANELLA, J. FILED FEBRUARY 5, 2015
Appellant, Ricky E. Grubbs, appeals from the judgment of sentence
entered April 14, 2014, by the Honorable Thomas M. Bianco, Court of
Common Pleas of Indiana County. We affirm.
On August 26, 2013, Grubbs entered a nolo contendere plea to one
count of Statutory Sexual Assault,1 a felony of the second degree, in return
for which the Commonwealth agreed to nolle pros all remaining charges. At
the hearing, the Commonwealth recommended a sentence of one year less
one day to two years less one day imprisonment. See N.T., Plea Hearing,
8/26/13 at 1. During the plea colloquy, the trial court explicitly informed
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1
18 Pa.C.S. § 3122.1(a)(2).
J-S76020-14
Grubbs that it was not obligated to sentence him to the recommended
sentence:
THE COURT: Now, do you understand that the District
Attorney is recommending that I mitigate and give you
that type of sentence?
THE DEFENDANT: Yes, sir.
THE COURT: Now, here’s the important part. Do you
understand that that’s just a recommendation and the
[c]ourt would not have to follow that recommendation?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand that if I did not follow
that recommendation that in and of itself would not serve
as the basis for you to withdraw your plea? Do you
understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Now, other than these things that we have
discussed, have there been any other deals made or any
promises made to you in connection with your plea?
THE DEFENDANT: No, sir.
THE COURT: Mr. Grubbs, do you have any questions at all
for me?
THE DEFENDANT: No, sir.
Id. at 9-10. At sentencing, the trial court indicated that a pre-sentence
investigation report prepared in this matter revealed Grubbs’ prior record
score to be a five. See N.T., Sentencing, 4/11/14 at 11. After informing
Grubbs that a county sentence was not possible even within the mitigated
range of the sentencing guidelines, the court proceeded to sentence Grubbs
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J-S76020-14
to two to seven years’ imprisonment in a state correctional institution. See
id. at 11-13.
Grubbs filed a timely pro se notice of appeal on April 23, 2014. On
June 24, 2014, Grubbs’s court-appointed counsel filed a Rule 1925(b)
statement. On appeal, Grubbs argues that his nolo contendere plea was
unknowingly entered because he did not understand that his sentence
involved the possibility of incarceration in a state correctional facility. See
Appellant’s Brief at 8.
Our review of the record reveals that Grubbs did not challenge his
guilty plea either at sentencing or in a post-sentence motion. As such, we
are constrained to find that Grubbs has waived this issue on appeal. See
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.”); Commonwealth v. Tareila,
895 A.2d 1266, 1270 n.3 (Pa. Super. 2006) (“Where an appellant fails to
challenge his guilty plea in the trial court, he may not do so on appeal.”).2
Judgment of sentence affirmed.
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2
Even if we were able to review Grubbs’s claim, we would not merit relief.
As recounted supra, the transcript of the plea hearing indicates that the trial
court explicitly informed Grubbs that it was not obligated to impose the
sentence recommended by the Commonwealth. See N.T., Plea Hearing,
8/26/13 at 9-10.
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J-S76020-14
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/5/2015
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