Com. v. Keller, C.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER ROBERT KELLER :
:
Appellant : No. 1757 EDA 2022
Appeal from the Judgment of Sentence Entered June 7, 2022
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0000406-2022
BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY OLSON, J.: FILED JUNE 30, 2023
Appellant, Christopher Robert Keller, appeals from the June 7, 2022
judgment of sentence entered in the Court of Common Pleas of Lehigh County
that imposed a sentence of 2 years’ probation with 120 days to be served on
house arrest with electronic monitoring after Appellant pleaded guilty to
driving under the influence of alcohol or a controlled substance
(“DUI”) – second offense (a first-degree misdemeanor).1 As part of his
sentence, the trial court ordered Appellant to pay a fine in the amount of
$1,500.00 and the costs of prosecution. We affirm.
The trial court summarized the factual history as follows:
On September 18, 2021, at [] 3:25 p.m., [Officer] Alexie T.
Santiago of the South Whitehall Police Department [(“Officer
Santiago”)] was conducting traffic enforcement at the intersection
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1 75 Pa.C.S.A. § 3802(d)(1)(i).
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of Hamilton Boulevard and Lincoln Avenue in Allentown, Lehigh
County, Pennsylvania. [As part of the enforcement operations,
Officer Santiago stopped Appellant’s motor vehicle] for an expired
registration. Appellant was operating the vehicle [at the time of
the stop].
After stopping his vehicle, Appellant exited and began
approaching another parked vehicle with two children in the back
[seat of the vehicle]. Officer Santiago requested that Appellant
walk towards him or return to his vehicle based on the fact that
[Officer Santiago] did not know whether Appellant had [a]
relationship to the children in the other vehicle. Appellant
continued approach[ing] the second vehicle, prompting Officer
Santiago to attempt to physically restrain him. Several
bystanders [assisted] Officer Santiago. Based on his experience
and training, Officer Santiago believed Appellant was under the
influence of narcotics. A subsequent blood draw conducted at
5:40 p.m. at Lehigh County Central Booking revealed the
presence of [Tetrahydrocannabinol (“THC”)] in Appellant's
system.
Trial Court Opinion, 9/16/22, at 2-3.
Appellant was charged with the aforementioned crime, as well as
DUI – impaired ability - second offense (a first-degree misdemeanor),
resisting arrest or other law enforcement (a second-degree misdemeanor),
disorderly conduct – hazardous or physically offensive condition (a
third-degree misdemeanor), registration and certificate of title
required – driving unregistered vehicle (a summary offense), and operation of
vehicle without official certificate of inspection (a summary offense).2 On June
7, 2022, Appellant pleaded guilty, pursuant to a negotiated plea agreement,
to one count of DUI – second offense (a first-degree misdemeanor) under
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275 Pa.C.S.A. § 3802(d)(2), as well as 18 Pa.C.S.A. §§ 5104 and 5503(a)(4),
and 75 Pa.C.S.A. §§ 1301(a) and 4703(a), respectively.
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Section 3802(d)(1)(i).3 That same day, the trial court sentenced Appellant to
2 years’ probation, with 120 days to be served on house arrest with electronic
monitoring, and ordered Appellant to pay a $1,500.00 fine and the costs of
prosecution. This appeal followed.4
Appellant raises the following issues for our review:
1. Was [] Appellant prejudiced when the trial court accepted
Appellant's guilty plea as being knowingly, intelligently, and
voluntarily tendered?
2. Was trial counsel ineffective by failing to fully explain the
consequences, both direct and collateral, of the proposed
plea, prior to [Appellant’s entry of a guilty plea] before the
trial court?
Appellant’s Brief at 2.5
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3 In accordance with the negotiated plea agreement, the Commonwealth
withdrew the remaining criminal charges on June 7, 2022.
At the plea hearing, Appellant was represented by Paul Bender, Esquire
(“Attorney Bender”).
4On June 27, 2022, Charles E. Dutko, Jr., Esquire ("Attorney Dutko”) entered
his appearance as counsel for Appellant.
Both Appellant and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.
5 We note that Appellant’s brief fails to conform to Pennsylvania Rule of
Appellate Procedure 2119. Rule 2119 requires the argument section of an
appellant’s brief to be “divided into as many parts as there are questions to
be argued; and shall have at the head of each part - in distinctive type or in
type distinctively displayed - the particular point treated therein, followed by
such discussion and citation of authorities as are deemed pertinent.” Pa.R.A.P.
2119(a).
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In his first issue, Appellant challenges the validity of his guilty plea as
unknowingly, unintelligently, and involuntarily tendered on the ground that he
was not aware, when he entered the plea, that his driver’s license would be
suspended as a result of his conviction. Appellant’s Brief at 7-9. For the
reasons discussed herein, we find Appellant failed to raise this issue with the
trial court and cannot raise it for the first time on direct appeal. As such, we
find Appellant waived this issue.
Appellant filed his notice of appeal on July 6, 2022. That same day,
Appellant filed a request for the production of a transcript of his plea hearing
and sentencing hearing, both of which occurred on June 7, 2022. Request for
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Here, Appellant raises two issues for our review. The argument section of
Appellant’s brief, however, does not contain two distinct sections setting forth
the issue presented and the argument in support thereof, with citation to
pertinent portions of the record or authorities. Instead, Appellant’s argument
section contains a single argument, without a heading of the particular point
treated therein, in support of his first issue. A review of the argument section
does not reveal an argument in support of his second issue.
The failure to conform to the Pennsylvania Rules of Appellate Procedure with
regard to the format and content of an appellate brief, including Rule 2119,
may result in waiver or dismissal of an appellant’s issues if the defects in the
brief are substantial and prevent this Court from conducting a meaningful
review. See Pa.R.A.P. 2101 (stating, “Briefs and reproduced records shall
conform in all material respects with the requirements of these rules as nearly
as the circumstances of the particular case will admit, otherwise they may be
suppressed, and, if the defects are in the brief or reproduced record of the
appellant and are substantial, the appeal or other matter may be quashed or
dismissed”); see also Commonwealth v. Adams, 882 A.2d 496, 497-498
(Pa. Super. 2005). Nonetheless, in the case sub judice, we decline to find
waiver of Appellant’s issues or dismiss the appeal on the basis of Appellant’s
failure to conform to the Pennsylvania Rules of Appellate Procedure with
regard to the format and content of his brief.
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Transcript, 7/6/22, (requesting a transcript of the “entire proceeding”). On
July 19, 2022, the trial court denied Appellant’s request for the production of
a transcript. Trial Court Order, 7/19/22. In its order denying the request, the
trial court informed the parties that
The transcript is unavailable due to a technical error which caused
approximately [one] hour of the proceedings from the date of June
7, 2022[,] to be recorded without [] audio from which a transcript
could be produced. [Appellant’s case] was one of several which
[were] handled during the time of the recording outage.
Id. at Footnote 1.
On August 1, 2022, the trial court directed Appellant, pursuant to
Pennsylvania Rule of Appellate Procedure 1923, “to prepare a statement of
the evidence in absence of a transcript and [] serve a copy of said statement
on the Commonwealth within [20] days of the date of this Order.”6 Trial Court
Order, 8/1/22. The trial court provided the Commonwealth with 10 days,
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6 Rule 1923 states as follows:
If no report of the evidence or proceedings at a hearing or trial
was made, or if a transcript is unavailable, the appellant may
prepare a statement of the evidence or proceedings from the best
available means, including his[, or her,] recollection. The
statement shall be served on the appellee, who may serve
objections or propose amendments thereto within ten days after
service. Thereupon the statement and any objections or proposed
amendments shall be submitted to the [trial] court for settlement
and approval and as settled and approved shall be included by the
clerk of the [trial] court in the record on appeal.
Pa.R.A.P. 1923.
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upon receipt of Appellant’s statement, to submit any objections or proposed
amendments.
Appellant filed his proposed statement in absence of a transcript on
August 22, 2022. The Commonwealth subsequently filed its response to
Appellant’s statement on September 13, 2022.7 On September 14, 2022, the
trial court, upon review of Appellant’s proposed statement in absence of a
transcript and the Commonwealth’s response thereto, directed the clerk of
courts for the Court of Common Pleas of Lehigh County to include the following
statement of evidence and proceedings as part of the certified record:
Statement of Evidence and Proceedings
Upon review of Appellant's statement in absence of a transcript
and the Commonwealth's response thereto, and upon
consideration of the Commonwealth's objections, the following
statement is hereby approved as a statement of evidence and
proceedings in the within matter:
1. On June 7, 2022, [Appellant] entered a negotiated
guilty plea to Count 1 DUI controlled substance – 2nd
offense pursuant to 75 Pa.C.S.A. § 3802(d)(1)(i).
2. [Appellant] was represented by [Attorney Bender.]
3. On that date, [Appellant] was sentenced to 2 years of
probation by the [trial court] with 120 days to be
served on house arrest with electronic monitoring
beginning June 7, 2022.
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7 The trial court granted the Commonwealth an extension in which to file its
response. Trial Court Order, 9/14/22, (granting the Commonwealth an
extension of time in which to file a response “by the close of business on
September 24, 2022”).
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4. In accordance with the plea, all other counts were
withdrawn by the Commonwealth.
5. At the time of the plea, [Appellant] submitted a
written guilty plea colloquy and a post[-]sentence
rights form, both of which he executed [and] both of
which were made part of the official court file.
6. The [trial] court reviewed both forms with [Appellant]
in open court.
7. The Commonwealth presented its version of the
underlying facts and [Appellant] conceded those facts
were accurate in tendering his guilty plea.
8. [Appellant] answered the questions posed by the
[trial] court in reviewing both forms truthfully and to
the best of his ability.
9. There was [no] discussion on the record at the time
of [Appellant’s] plea concerning any loss of
[Appellant’s] driver's license which could or would
result from his plea.
Trial Court Order, 9/14/22, at 2-3 (unpaginated) (extraneous capitalization
and record citation omitted).
It is well-established that
Pennsylvania law makes clear that by entering a plea of guilty, a
defendant waives his right to challenge on direct appeal all
non[-]jurisdictional defects except the legality of the sentence and
the validity of the plea. Commonwealth v. Pantalion, 957 A.2d
1267, 1271 (Pa. Super. 2008). In order to preserve an issue
related to a guilty plea, an appellant must either “object at the
sentence colloquy or otherwise raise the issue at the sentencing
hearing or through a post-sentence motion.” Commonwealth v.
D'Collanfield, 805 A.2d 1244, 1246 (Pa. Super. 2002)[; see
also] Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i); [] Pa.R.A.P. 302(a)
([stating,] “Issues not raised in the [trial] court are waived and
cannot be raised for the first time on appeal.”).
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Commonwealth v. Monjaras-Amaya, 163 A.3d 466, 468-469 (Pa. Super.
2017) (original brackets omitted).
Based upon a review of the certified record currently before us,
Appellant did not challenge the validity of his guilty plea during his guilty plea
colloquy, at the sentencing hearing, or in a post-sentence motion. See Trial
Court Order (Statement of Evidence and Proceedings), 9/14/22; see also
Trial Court Docket; Appellant’s Brief at 7 (conceding that Appellant did not file
a post-sentence motion); Appellant’s Statement in Absence of Transcript,
8/22/22 (failing to set forth averments that Appellant raised a challenge to his
guilty plea with the trial court); Commonwealth’s Response to Appellant’s
Statement in Absence of Transcript, 9/13/22. Because Appellant did not raise
a challenge to the validity of his guilty plea with the trial court, and he is not
permitted to do so for the first time on appeal, we find Appellant waived his
first issue.8 Monjaras-Amaya, 163 A.3d at 468-469; see also Pa.R.A.P.
302(a).
Appellant’s second issue raises a claim that trial counsel provided
ineffective assistance during his guilty plea hearing on the ground that trial
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8 In his brief, Appellant invites this Court, without citation to authority, to find
that his first issue is not waived for failure to raise the issue with the trial court
in a post-sentence motion. Appellant’s Brief at 7. Appellant asserts that his
issue should not be waived because he “was not made aware of the driver’s
license suspension, at issue, until he received a notice of suspension from
[the] Pennsylvania Department of Transportation[, and the] notice was
received after the time to file a post-sentence motion expired.” Id. at 7-8
(extraneous capitalization omitted). We decline Appellant’s invitation. See
Pa.R.A.P. 302(a).
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counsel failed “to fully explain the consequences, both direct and collateral, of
the proposed plea[.]” Appellant’s Brief at 2.
Our Supreme Court recently reiterated the well-established principle
that claims of trial counsel’s ineffectiveness are to be raised in collateral
proceedings and may not be raised on direct appeal. Commonwealth v.
Bradley, 261 A.3d 381, 391 (Pa. 2021) (stating that, “claims of trial counsel’s
ineffectiveness . . . are to be presented in a [petition filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546]”); see also
Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013) (stating, “claims
of ineffective assistance of counsel are to be deferred to PCRA review”); 42
Pa.C.S.A. § 9543(a)(2)(ii) (setting forth ineffective assistance of counsel as
grounds for collateral relief if pleaded and proven by a preponderance of the
evidence). Therefore, Appellant’s claim of ineffective assistance of trial
counsel is premature, and we dismiss this claim without prejudice to raise it
in a collateral proceeding.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/30/2023
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