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[U] Commonwealth v. Cherella

Superior Court of Pennsylvania

October 16, 2013

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
NOAH RICHARD CHERELLA Appellant COMMONWEALTH OF PENNSYLVANIA Appellee
v.
NOAH R. CHERELLA Appellant COMMONWEALTH OF PENNSYLVANIA Appellee
v.
NOAH R. CHERELLA Appellant COMMONWEALTH OF PENNSYLVANIA Appellee
v.
NOAH RICHARD CHERELLA Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence December 19, 2012 In the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000431-2012, CP-33-CR-0000360-2012, CP-33-CR-0000358-2012, CP-33-CR-0000359-2012

Joseph D. Seletyn, Esq.

BEFORE: FORD ELLIOTT, P.J.E., GANTMAN, J., and SHOGAN, J.

JUDGMENT ORDER

GANTMAN, J.

Appellant, Noah Richard Cherella, appeals from the judgment of sentence entered in the Jefferson County Court of Common Pleas, following his open guilty pleas to driving under the influence of alcohol or a controlled substance ("DUI"), institutional vandalism, and theft from a motor vehicle.[1]On November 1, 2012, Appellant entered an open guilty plea to DUI and three counts of theft from a motor vehicle. Appellant proceeded to sentencing on December 19, 2012. At that time, Appellant entered an additional guilty plea to institutional vandalism. The court imposed an aggregate sentence of 38-84 months' imprisonment. Appellant timely filed a notice of appeal on January 18, 2013. On January 22, 2013, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied. On appeal, Appellant raises one issue challenging the voluntariness of his guilty plea. Preliminarily, we observe:

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 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, [352 A.2d 140, 141 (Pa.Super. 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").

Commonwealth v. Lincoln, __ A.3d __, 2013 PA.Super. 177, *3 (filed July 9, 2013) (holding defendant failed to preserve challenge to validity of guilty plea where he did not object during plea colloquy or file post-sentence motion to withdraw plea). Further, "a defendant who attempts to withdraw a guilty plea after sentencing must demonstrate prejudice on the order of manifest injustice before withdrawal is justified." Id. (quoting Commonwealth v. Pantalion, 957 A.2d 1267, 1271 (Pa.Super. 2008)).

Instantly, Appellant waived review of the validity of his guilty plea because he failed to preserve it properly by objecting during the plea colloquy or by filing a post-sentence motion to withdraw the plea. See Lincoln, supra. Thus, Appellant's challenge to the validity of his guilty plea is not properly before us at this time.[2] Accordingly, we affirm.

Judgment of sentence affirmed.

Judgment Entered.


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