Com. v. Wise, J.

J-S33041-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES WISE :
:
Appellant : No. 2971 EDA 2019
Appeal from the Judgment of Sentence Entered September 10, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006968-2018
BEFORE: DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: Filed: July 30, 2020
Appellant James Wise appeals the judgment of sentence entered by the
Court of Common Pleas of Philadelphia County after Appellant pled guilty to
Attempted Murder, Aggravated Assault, and Carrying a Firearm Without a
License.1 Appellant claims the trial court erred in refusing to grant his post-
sentence motion to withdraw his guilty plea. We affirm.
Appellant was arrested and charged with multiple offenses in connection
with the September 18, 2016 shooting of four individuals in the parking lot of
a night club on Castor Avenue in Philadelphia. Two of the victims sustained
serious bodily injury and required extensive medical care.
On September 10, 2019, Appellant entered a negotiated guilty plea to
two counts each of Attempted Murder and Aggravated Assault as well as one
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. § 901, 2701, and 6106, respectively.
J-S33041-20
count of Carrying a Firearm Without a License. In exchange for this plea, the
Commonwealth agreed to recommend that the trial court sentence Appellant
to an aggregate term of 12½ to 25 years’ imprisonment and to drop the
remaining charges. After Appellant completed both oral and written colloquies
reflecting that he understood and agreed to the plea agreement, the trial court
sentenced Appellant according to the terms of parties’ agreement.
On September 18, 2019, Appellant filed a post-sentence motion, asking
the trial court to allow him to withdraw his guilty plea on the basis that his
“his guilty plea was the product of duress and undue coercion.” Post-Sentence
Motion, 9/18/19, at 1. On September 20, 2019, the trial court denied this
motion. On October 10, 2019, Appellant filed this appeal and subsequently
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:
I. Whether the trial court erred in not allowing Appellant to
withdraw his guilty plea where he was not informed
adequately of the nature of the charges pending against him
during the lower[] court’s colloquy?
II. Whether the trial court erred in not allowing Appellant to
withdraw his guilty plea where the circumstances of
Appellant’s plea warranted the pre-sentence standard for
withdrawing a guilty plea?
Appellant’s Brief, at 5.
In reviewing Appellant’s claim that the trial court erred in refusing to
allow him to withdraw his guilty plea, we are guided by the following
principles:
-2-
J-S33041-20
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. Commonwealth v. Unangst, 71 A.3d 1017,
1019 (Pa. Super. 2013) (quotation omitted); see
Commonwealth v. Broaden, 980 A.2d 124, 128 (Pa. Super.
2009) (noting that we review a trial court's order denying a motion
to withdraw a guilty plea for an abuse of discretion), appeal
denied, 606 Pa. 644, 992 A.2d 885 (2010). 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.” Commonwealth v.
Yeomans, 24 A.3d 1044, 1046 (Pa. Super. 2011). In
Commonwealth v. Prendes, 97 A.3d 337, 352 (Pa. Super.
2014), impliedly overruled on other grounds by
Commonwealth v. Hvizda, 632 Pa. 3, 116 A.3d 1103, 1106
(2015), we explained that a defendant may withdraw his guilty
plea after sentencing “only where necessary to correct manifest
injustice.” Prendes, 97 A.3d at 352 (citation omitted). 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. Flick,
802 A.2d 620, 623 (Pa. Super. 2002).
“Manifest injustice occurs when the plea is not tendered
knowingly, intelligently, voluntarily, and understandingly.”
Commonwealth v. Kpou, 153 A.3d 1020, 1023 (Pa. Super.
2016) (citation omitted). In determining whether a plea is valid,
the court must examine the totality of circumstances *665
surrounding the plea. Id. “Pennsylvania law presumes a
defendant who entered a guilty plea was aware of what he was
doing, and the defendant bears the burden of proving otherwise.”
Id.Commonwealth v. Hart, 174 A.3d 660, 664–65 (Pa.Super. 2017).
We are also mindful 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.
Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). Failure to employ either
measure results in waiver. Commonwealth v. Tareila, 895 A.2d
-3-
J-S33041-20
1266, 1270 n. 3 (Pa.Super.2006). 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.”
Commonwealth v. Roberts, 237 Pa.Super. 336, 352 A.2d 140,
141 (1975) (holding that common and previously condoned
mistake of attacking guilty plea on direct appeal without first filing
petition to withdraw plea with trial court is procedural error
resulting in waiver; stating, “(t)he swift and orderly administration
of criminal justice requires that lower courts be given the
opportunity to rectify their errors before they are considered on
appeal”; “Strict adherence to this procedure could, indeed,
preclude an otherwise costly, time consuming, and unnecessary
appeal to this court”).
Likewise:
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. Similarly, challenges to a court's sentencing
discretion must be raised during sentencing or in a post-
sentence motion in order for this Court to consider granting
allowance of appeal. Moreover, for any claim that was
required to be preserved, this Court cannot review a legal
theory in support of that claim unless that particular legal
theory was presented to the trial court.
Thus, even if an appellant did seek to withdraw pleas or to
attack the discretionary aspects of sentencing in the trial
court, the appellant cannot support those claims in this
Court by advancing legal arguments different than the ones
that were made when the claims were preserved.
Commonwealth v. Rush, 959 A.2d 945, 949 (Pa.Super. 2008),
appeal denied, 601 Pa. 696, 972 A.2d 521 (2009).
Commonwealth v. Lincoln, 72 A.3d 606, 609–10 (Pa.Super. 2013).
In this case, Appellant initially argued in his post-sentence motion that
he should be allowed to withdraw his guilty plea, which was the “product of
duress and undue coercion.” Post-Sentence Motion, 9/18/19, at 1. The trial
-4-
J-S33041-20
court denied Appellant’s motion without a hearing, finding there was no
evidence to support Appellant’s bald claim of duress and coercion.
On appeal, Appellant does not argue that he was coerced into entering
his plea, but alleges for the first time that he was not adequately advised of
the charges filed against him and the penalties he faced for each charge. As
this legal theory was not raised before the trial court in Appellant’s post-
sentence motion and the trial court had no opportunity to address this claim
of error, Appellant has not properly preserved this argument for our review.
Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/30/20
-5-