Com. v. Shaw, L.

J-S14029-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LARRY SHAW :
:
Appellant : No. 1321 WDA 2021
Appeal from the Judgment of Sentence Entered July 8, 2020
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0000300-2020
BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY McCAFFERY, J.: FILED: JUNE 22, 2022
Larry Shaw (Appellant) appeals nunc pro tunc from the judgment of
sentence imposed in the Fayette County Court of Common Pleas following his
guilty plea to, inter alia, persons not to possess firearms.1 On appeal,
Appellant contends his plea was not entered knowingly, voluntarily, and
intelligently. We affirm.
The trial court summarized the facts underlying Appellant’s guilty plea
in the case sub judice as follows:
[On February 5, 2020,] the Uniontown Police were dispatched for
a reported shooting that occurred at 221 Connellsville Street in
the City of Uniontown. William Mattey, the victim, stated that he
had gone to purchase drugs from [ ] Appellant, but [Appellant]
did not have any [and] was in need of some. [ ] Appellant and
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 6105(a)(1).
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Mattey then planned to rob another guy of his drugs. They
attempted to commit the robbery but were unsuccessful. As they
were returning to [ ] Appellant’s residence, [ ] Appellant and
Mattey got into a verbal argument. Mattey informed the police
that [ ] Appellant then pulled a 45 caliber handgun on him and
fired the gun once at him before he fled and then fired the gun a
second time.
Trial Ct. Op., 1/4/22, at 2 (unpaginated).
Appellant was arrested and charged at the instant trial docket — CP-26-
CR-0000300-2020 (Docket 300-2020) — with attempted homicide, attempted
aggravated assault, simple assault, recklessly endangering another person,
terroristic threats,2 and persons not to possess firearms. On July 8, 2020,
Appellant appeared before the trial court to enter a global guilty plea in four
outstanding cases, including the one before us. He was represented by
Michael Aubele, Esquire. Appellant pled guilty to the following offenses: (1)
at trial docket CP-26-CR-0000575-2019 (Docket 575-2019), theft by
deception;3 (2) at trial docket CP-26-CR-0000288-2020 (Docket 288-2020),
persons not to possess firearms, possession with intent to deliver controlled
substances, possession of controlled substances, and possession of drug
paraphernalia;4 and (3) at trial docket CP-26-CR-0000591-2020 (Docket 591-
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2 See 18 Pa.C.S. §§ 901, 2501, 2702(a)(4), 2701(a)(3), 2705, and
2706(a)(1), respectively.
3 18 Pa.C.S. § 3922(a)(1).
4 35 P.S. § 780-113(a)(16), (30), (32).
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2020), simple assault and harassment.5 In the present case — Docket 300-
2020 — the Commonwealth agreed to nol pros the attempted murder charge
and Appellant pled guilty to the remaining offenses. N.T., 7/8/20, at 8, 13.
During the plea hearing, the trial court questioned whether the firearm
Appellant unlawfully possessed at Docket 288-2020 was the same firearm he
unlawfully possessed at Docket 300-2020. N.T., 7/8/20, at 7-8. Appellant
replied that it was. Id. at 8. Because both incidents occurred the same day,
the court inquired whether Appellant could “be charged and sentenced
multiple times for possessing the same firearm” on the same day. Id. The
Commonwealth replied that the charges were proper because “[t]here are two
separate incidents, two separate investigations, two separate charges, two
separate cases[;] these incidents were conducted by two different police
agencies at two different times.” Id. at 9. Although it is not clear from the
limited record before us,6 it appears the charges at Docket 288-2020 were
filed following the execution of a search warrant at Appellant’s home that was
obtained independent of the incident in this case. Appellant states the
incidents (i.e. the assault of Mattey and the execution of the search warrant),
“occurred only five hours apart on [the same] date, and . . . involved the same
Industria Argentina 45 caliber firearm.” Appellant’s Brief at 5.
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5 18 Pa.C.S. §§ 2701(a)(3), 2709(a)(1).
6The only information in the certified record regarding Docket 288-2020 is
what was discussed during the plea hearing.
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During the discussion, the Commonwealth stated that if Appellant did
not “want the deal” at Docket 300-2020, it would “get [the victim] in and he’ll
testify.” N.T., 7/8/20, at 10. Thereafter the following exchange took place:
[Attorney] Aubele: I’ve advised my client that it’s in his best
interest to take the deal and I believe it is. I just don’t want him
to have two convictions for the same, that’s all I’m trying to do.
[Commonwealth]: He’s not going to have two convictions
for the same offense because they’re at different times.
THE COURT: He can have two convictions for the same
firearm.
[Commonwealth]: Yes. Let’s say that on Monday he had
his gun out and he was wielding it around. That’s number one.
THE COURT: At 10:00 A.M.
[Commonwealth]: At 10:00 A.M.
THE COURT: And at 3:00 [P].M. he had the same gun out.
[Commonwealth]: He had it again. It’s not the same
incident. He had possession of the gun twice in one day. It
doesn’t matter if he had the incident number one at 10:00 and at
11:30 he went down in another place and had the gun. That’s
two different situations.
[Attorney] Aubele: Your Honor, we’re not going to contest
that specific charge. We agree that the Commonwealth will likely
sustain their burden on that charge.
Id. at 10-11.
The trial court accepted the plea and then proceeded to sentence
Appellant on each of the dockets. The court imposed a sentence of 5 to 10
years’ imprisonment for persons not to possess firearms at Docket 300-2020,
and a concurrent term of 4 to 10 years’ imprisonment for the same crime at
Docket 288-2020. N.T., 7/8/20, at 11, 13. At Docket 591-2020, the court
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imposed a term of six to 12 months’ imprisonment for simple assault, to run
consecutive to the sentence at Docket 288-2020, and at Docket 575-2019,
the court imposed a concurrent sentence of 2½ to 5 years’ imprisonment.7
See id. at 12.
Appellant did not file a post-sentence motion to withdraw his plea or a
direct appeal. Instead, on March 11, 2021, Appellant filed a pro se document
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7 Although not raised on appeal, we point out a discrepancy in the record. The
written guilty plea form indicates that Appellant was pleading guilty to various
counts in the aforementioned cases, and would receive an aggregate sentence
of 4½ to 11 years’ incarceration, consecutive to another sentence he had
recently received. See Guilty Plea, 7/8/20. The Commonwealth reiterated
this agreement at the commencement of the plea hearing. See N.T., 7/8/20,
at 2 (Commonwealth stating the plea “calls for a term of four and a half to
eleven years consecutive to the sentence he just received on all four cases”).
The court and its staff refer to the prior offense as “287 of 2020, which was
[a] trial.” See id. at 11, 13. Upon our independent review of Appellant’s
Fayette County Court Summary, we confirmed that on July 6, 2020, Appellant
was sentenced to a term of 6 to 12 years for persons not to possess firearms
at Trial Docket CP-26-CR-0000287-2020.
As noted above, the court imposed a sentence of five to ten years’
imprisonment for the firearms offense in the present case. Initially, the court
stated the sentence would run concurrently to the sentences for the other
three pleas entered that day, as well as to 287-2020. N.T., 7/8/20, at 13.
Inexplicably, the court also stated: “I[f] our calculations are correct that
should total four and a half to eleven years which was the plea bargain
consecutive to 300 of 2020.” Id. (emphasis added). However, the court then
corrected itself and indicated the sentence sub judice would run “consecutive
to 287 of 2020.” Id. To further complicate matters, the sentencing order in
the certified record states “this sentence shall run concurrent with the
sentencing imposed at Nos. 287 of 2020; 288 of 2020; 591 of 2020 and 575
of 2020.” Order, 7/8/20 (emphasis added). Thus, despite the agreement that
Appellant would serve an aggregate term of 4½ to 11 years’ imprisonment, it
appears he was sentenced to an aggregate term of 5 to 11 years’
imprisonment. Nevertheless, Appellant has not raised any challenge to his
sentence on appeal.
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titled “Motion to Modify and Reduce Sentence Nunc Pro Tunc.” No action was
taken. Thereafter, on May 24th, he filed a timely pro se petition for relief
pursuant to the Post Conviction Relief Act (PCRA),8 asserting he “didn[’]t plead
guilty to this case” and “also [he is] being charged with the same gun twice[.]”
Appellant’s Post-Conviction Relief Act Petition Pursuant to 42 Pa.C.S.A. 9543
et. seq., 5/24/21, at 4. James V. Natale, Esquire, was appointed to represent
Appellant and filed an amended PCRA petition on October 20, 2021, arguing
trial counsel was ineffective for failing to object when the court sentenced
Appellant at Docket 300-2020, and for failing to file a direct appeal. See
Appellant’s Amended Post Conviction Relief Act Petition, 10/20/21, at 1-2
(unpaginated). Appellant did not request permission to file a post-sentence
motion nunc pro tunc.
One week later, on October 27, 2021, the PCRA court entered an order
granting Appellant’s request to file a direct appeal nunc pro tunc. Order,
10/27/21. This timely appeal followed.9
Appellant raises a single issue on appeal:
Whether Appellant’s guilty plea was knowing, voluntary, and
intelligent?
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8 42 Pa.C.S. §§ 9541-9546.
9Appellant complied with the trial court’s directive to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal.
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Appellant’s Brief at 3.10
Generally, “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. Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014)
(citation omitted). Furthermore:
It is well-settled that the decision whether to permit a
defendant to withdraw a guilty plea is within the sound discretion
of the trial court. Although no absolute right to withdraw a guilty
plea exists in Pennsylvania, the standard applied differs depending
on whether the defendant seeks to withdraw the plea before or
after sentencing. When a defendant seeks to withdraw a plea
after sentencing, he “must demonstrate prejudice on the order of
manifest injustice.” . . . Thus, “post-sentence motions for
withdrawal are subject to higher scrutiny since the courts strive
to discourage the entry of guilty pleas as sentence-testing
devices.”
Commonwealth v. Hart, 174 A.3d 660, 664 (Pa. Super. 2017) (citations and
footnote omitted). A defendant meets the standard of manifest injustice “only
if he can demonstrate that his guilty plea was entered involuntarily,
unknowingly, or unintelligently.” Commonwealth v. Culsoir, 209 A.3d 433,
437 (Pa. Super. 2019). However:
Once a defendant enters a guilty plea, it is presumed that he was
aware of what he was doing. Consequently, defendants are bound
by statements they make during their guilty plea colloquies and
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10 The Commonwealth informed this Court that it would not be filing a
responsive brief, but rather would rely upon the trial court’s opinion. See
Commonwealth’s Letter, 3/18/22.
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may not successfully assert any claims that contradict those
statements.
Id. (citations omitted).
Moreover, it is axiomatic that “[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.” Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa. Super.
2013), citing Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). “Failure to employ either
measure results in waiver.” Id. at 610 (citation omitted). See also
Commonwealth v. Monjaras-Amaya, 163 A.3d 466, 469 (Pa. Super. 2017)
(challenge to deficient colloquy for guilty plea raised for the first time in Rule
1925(b) statement was waived).
On appeal, Appellant argues the entry of his guilty plea for persons not
to possess firearms at the present docket was “not knowing, voluntary and
intelligent.” Appellant’s Brief at 6. Although he concedes he is “guilty of at
least one count” of persons not to possess — i.e., at Docket 288-2020 —
Appellant insists “the two separate counts that he [pled] guilty to should have
merged.” Id. at 8. He emphasizes that “possession of a firearm is a
continuing offense.” Id. at 6, citing Commonwealth v. Miklos, 159 A.3d
962, 968 (Pa. Super. 2017). Thus, he maintains, because “the criminal
offenses in this case clearly originate from a single crime spree, and there is
no evidence that these offenses originated from completely separate criminal
acts[,]” he did not knowingly plead guilty to “two separate charges” of persons
not to possess firearms. Appellant’s Brief at 8. For support, he relies upon
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this Court’s decision in Commonwealth v. Woods, 710 A.2d 626 (Pa. Super.
1998), in which we held that a defendant was improperly sentenced for two
violations of carrying a firearm on public street in Philadelphia, 18 Pa.C.S. §
6108, when there “was no evidence to indicate [the defendant] carried the
subject weapon in other than an uninterrupted fashion for the entire period
encompassing . . . two assaults.” Id. at 631. See Appellant’s Brief at 6-7.
Thus, Appellant insists his “guilty plea results in a manifest injustice that must
be overturned.” Appellant’s Brief at 8.
We conclude no relief is warranted. As noted above, a defendant who
seeks 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.” Lincoln, 72 A.3d at 609-10. Appellant did
not file a post-sentence motion seeking to withdraw his plea, nor did he
request permission from the PCRA court to file a post-sentence motion nunc
pro tunc. See Commonwealth v. Fransen, 986 A.2d 154, 155 (Pa. Super.
2009) (“[A] PCRA petitioner who is granted reinstatement of his direct-appeal
rights nunc pro tunc is not entitled to a subsequent order reinstating his right
to file post-sentence motions nunc pro tunc if he has not requested such relief
with the PCRA court, and if the court did not hold an evidentiary hearing on
that issue.”), citing Commonwealth v. Liston, 977 A.2d 1089 (Pa. 2009).
Moreover, although the trial court raised a question concerning the
propriety of the separate persons not to possess charges and sentences at the
guilty plea hearing, Appellant’s counsel conceded that Appellant was “not
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going to contest that specific charge.” N.T., 7/8/20, at 11. Appellant was
present during this discussion and, as the trial court points out in its opinion,
Appellant did not “contradict his counsel” or otherwise indicate he desired to
withdraw the plea. See Trial Ct. Op. at 5 (unpaginated). Thus, Appellant has
not preserved this claim for appellate review.11 See Lincoln, 72 A.3d at 609-
10.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/22/2022
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11 We note, too, that based upon the limited record before us, it appears the
separate firearm charges at the present docket and Docket 288-2020 were
appropriate under Woods. Here, Appellant was accused of firing his 45 caliber
handgun at Mattey during an argument. At Docket 288-2020, the same
handgun was recovered during the execution of a search warrant at
Appellant’s home, which was based upon information independent of the
incident involving Mattey. Conversely, in Woods, the defendant was accused
of shooting at two drivers during separate incidents that occurred shortly after
one another along the same roadway. See Woods, 710 A.2d at 628. Unlike
in Woods, here, Appellant did not possess the firearm in “an uninterrupted
fashion for the entire period encompassing” the two incidents. Id. at 631.
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