Com. v. Haugh, M.

J. S76006/14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
M. PATRICK HAUGH, : No. 1968 WDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, October 31, 2013,
in the Court of Common Pleas of Westmoreland County
Criminal Division at Nos. CP-65-CR-0000876-2013,
CP-65-CR-0000877-2013, CP-65-CR-0002418-2012
BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OLSON, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 10, 2015
Appellant, M. Patrick Haugh, appeals from the judgment of sentence of
October 31, 2013, entered in the Court of Common Pleas of Westmoreland
County. We affirm.
On April 9, 2013, before the Honorable Debra Ann Pezze, appellant
entered a general guilty plea on three separate cases to the following
charges: person not to possess a firearm, unsworn falsification, one count
each of terroristic threats, recklessly endangering another person,
aggravated assault, two counts of disarming a law enforcement officer
without lawful authorization, one count of resisting arrest, criminal mischief,
and disorderly conduct. An on-the-record colloquy occurred where the court
identified each count, explained the maximum penalties he could receive,
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and described the incidents which gave rise to each respective charge. For
each count, appellant stated that he was pleading guilty. Sentencing was
deferred pending the completion of a pre-sentence report.
On October 31, 2013, appellant appeared for a sentencing hearing
before the Honorable Richard E. McCormick.1 The victim in one of the cases
took the stand and gave a statement. After affording appellant an
opportunity to address the court, Judge McCormick sentenced him to an
aggregate term of 42 to 84 months’ incarceration with credit for any time
served, no contact with the victims, forfeiture of the firearm, as well as costs
and restitution.
On November 6, 2013, a timely pro se motion to withdraw his guilty
pleas was filed as well as a request for court-appointed counsel.
Judge McCormick held a hearing on December 5, 2013, and appellant was
represented by David J. Eckle, Esq. Thereafter, Judge McCormick denied the
motion and granted defense counsel leave to withdraw his appearance.2
(See docket #29.) On December 9, 2013, a pro se notice of appeal was
filed. (Docket #30.) Subsequently, a Grazier3 hearing was held on
March 28, 2014, at which time the court appointed James M. Fox, Esq., to
1
Judge Pezze was on a leave of absence for medical reasons.
2
The record indicates that appellant was unwilling to leave the courtroom
and had to be carried out by sheriffs. (Notes of testimony, 12/5/13 at 9.)
3
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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represent appellant for purposes of appeal. Counsel filed a concise
statement of matters complained of on appeal pursuant to Pa.R.A.P.
1925(b), and on May 29, 2014, Judge McCormick issued a Rule 1925(a)
opinion.
Appellant presents the following issues on appeal:
I. The Appellant’s guilty plea was not knowingly,
voluntarily, and intelligently entered for the
following reasons:
a. Counsel for the Appellant did not
review the charges with the
Appellant, possible defenses that
could be raised or the sentencing
guidelines applicable to the
offenses thereby preventing the
Appellant from entering a knowing,
voluntary and intelligent plea;
b. The Appellant expressed an
intention, prior to sentencing, to
withdraw his guilty plea by writing
a letter to the Honorable Debra A.
Pezze wherein he informed the
court that he did not believe he
should be pleading guilty.
II. The Appellant’s guilty plea was
deficient and not knowingly,
voluntarily, and intelligently
entered as the lower court failed,
at the time of the guilty plea
colloquy, and at sentencing, to
advise the Appellant of his
post-sentence appeal rights as a
result of the entry of the guilty
plea.
Appellant’s brief at 2.
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Appellant first argues that guilty plea counsel did not review the
charges with him, possible defenses that could be raised, or the sentencing
guidelines applicable to the offenses, thereby preventing him from entering
a knowing, voluntary, and intelligent plea. (Appellant’s brief at 6.) After a
thorough review of the record, appellant’s brief, the relevant law, and the
well-reasoned opinion of the trial court, we find this argument to be without
merit. Because the trial court’s opinion adequately and accurately disposes
of this issue, we affirm on the basis of that opinion. (See trial court opinion,
5/29/14 at 1-2.)
Next, appellant argues that he “expressed an intention, prior to
sentencing, to withdraw his plea by writing a letter to [Judge Pezze] wherein
he informed the court that he did not believe he should be pleading guilty.”
(Appellant’s brief at 6.) As the Commonwealth notes, there is nothing in the
record substantiating appellant’s claim that he sent a letter to Judge Pezze
prior to being sentenced. Furthermore, since appellant was represented by
counsel, any pro se motion filed would have been a legal nullity. See
Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa.Super. 2007)
(“Appellant had no right to file a pro se motion because he was represented
by counsel. This means that his pro se post-sentence motion was a nullity,
having no legal effect.”). No relief is due.
In his final claim, appellant argues that his guilty plea is invalid as the
sentencing court did not explain his post-sentence or appeal rights as
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required by Pa.R.Crim.P. 704(c)(3). The lower court and the Commonwealth
do not dispute this assertion. We agree with the Commonwealth that since
appellant filed a timely pro se notice to withdraw his guilty plea and
thereafter filed a timely counseled notice of appeal to this court, the error
was harmless. The remedy of a remand so the court could properly advise
appellant of his rights is moot as appellant filed a timely post-sentence
motion and appeal and did not affect the validity of his plea.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2015
-5-
Circulated 01/23/2015 03:04 PM
IN THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY,
COMMONWEALTH OF PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTII OF PENNSYLV ANlA )
)
vs. ) No. 241 8 C2012
) 877 C 2013
M. PA1RICK HAUGH, ) 876 C 2013
)
DefendantiAppellant. )
OPINION OF COURT PURSUANT TO RULE 1925(8) OF THE PENNSYLVANtA
RULES OF APPELLATE PROCEDURE
AND NOW, to wit, tllls'J4- day of May, 2014, the Court hereby issues the
following Opinion in support of the Order appeaJed from, indicating those places in the
record where such reasons for the court's rulings can be found, pursuant to Pennsylvania
Rule of Appellate Procedure No. 1925(a).
This appeal is from this Court's denial of the DefendantlAppellant's pro se
Motion to Withdraw Guilty Plea. In his Concise Slatement of Errors Complained of on
Appeal, Appellant contends that his guilty plea was not knowingly, voluntarily and
intelligently entered. ,-- -- - -. ~ - .. - .
The fIrst basis upon which Appellant makes his claim is that his fonner legal
counsel did not review the charges with him. did not discuss the possible defenses that
could be raised, and did not explain the sentencing guidelines that were applicable to the
offenses. To the extent that Appellant raises issues oftrial counsel's ineffectiveness, the
evidence of counsel's ineffectiveness was nol offered or deveJoped at the hearing on the
I
ADDENDUM C
Circulated 01/23/2015 03:04 PM
Motion to Withdraw Guilty Plea. Furthermore, after reviewing the fI.Ies on this matter,
we have been unable to find a Guilty Plea Petition or Petitions which would have set
fonh Lhe charges and the possible maximum sentences, even though the Appellant
confmned, when questioned by tbe Honorable Debra A. Pezze that he had completed a
petition with his counsel. (See Transcript of General Guilty Pleas, April 9, 2013, p. 11,
proceeding before the Honorable Debra A. Pezze.) Despite there being no Petition in the
record, however, Judge Pezze specifically explained each charge, and the possible
maximum sentence that couJ