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[U] Commonwealth v. Payne

Superior Court of Pennsylvania

February 19, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
NATHAN PAYNE, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence February 23, 2011 In the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-CR-0000855-2010

BEFORE: MUNDY, J., WECHT, J., and FITZGERALD, J. [*]

MEMORANDUM

MUNDY, J.

Appellant, Nathan Payne, appeals nunc pro tunc from the February 23, 2011 aggregate judgment of sentence of two to 20 years' imprisonment. After careful review, we affirm.

The relevant facts and procedural history have been summarized by the trial court as follows.

[] Appellant was charged with Violation of the Controlled Substance, Drug, Device, and Cosmetic Act (2nd Offense), Criminal Conspiracy/Violation of the Controlled Substance, Drug, Device, and Cosmetic Act, Criminal Use of Communication Facility, and Criminal Conspiracy/Criminal Use of Communication Facility.1 Ultimately, [] Appellant pled guilty to the aforementioned charges. On February 23, 2011, [] Appellant was sentenced as follows, in relevant part:
Count I, Violation of the Controlled Substance, Drug, Device, and Cosmetic Act: pay the costs of prosecution, pay a fine of $1, 000, and be incarcerated in a state correctional facility for a minimum of two years and a maximum of 20 years;
Count II, Criminal Conspiracy/Violation of the Controlled Substance, Drug, Devise, and Cosmetic Act: pay the costs of prosecution, pay fine of $250, and be incarcerated in a state correctional facility for a minimum of two years and a maximum of ten years, concurrent with Count I;
Count III, Criminal Use of Communication Facility: pay the costs of prosecution, pay a fine of $1, 000, and be incarcerated in a state correctional facility for a minimum of one and one half years and a maximum of seven years, concurrent with Count I;
Count IV, Criminal Conspiracy/Criminal Use of Communication Facility: pay the costs of prosecution, pay a fine of $1, 000, and be incarcerated in a state correctional facility for a minimum of one and one half years and a maximum of seven years, concurrent with Count I.

(February 23, 2011 Sentencing Order).

[] Appellant filed a PCRA Petition on January 11, 2012. [] Appellant claimed he was eligible for relief because of Constitutional violations, ineffective assistance of counsel, an unlawfully induced guilty plea, and the imposition of a sentence greater than the lawful maximum. The law firm of Montgomery & Zimmerer was appointed to represent [] Appellant. The Commonwealth filed its Response to the PCRA Petition and a Motion to Dismiss the PCRA Petition on January 31, 2012.
On May 22, 2012, a hearing was held on the PCRA Petition, but the [PCRA c]ourt ordered a continuance for Appellant's counsel to subpoena a witness. The hearing was continued until January 24, 2013. At the conclusion of the PCRA hearing, upon the Commonwealth's request, the [PCRA c]ourt granted the parties 20 days to brief their respective positions. The Commonwealth filed a brief in support of its position on February 13, 2013. [Appellant] filed a brief in support of his position on February 14, 2013.
135 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 903(a)(1)/35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 7512(a), and 18 Pa.C.S.A. §903(a)(1)/18 Pa.C.S.A. 7512(a), respectively.

Trial Court Opinion, 4/16/13, at 1-3 (some footnotes omitted).

On April 16, 2013, the PCRA court's order was entered granting Appellant reinstatement of his direct appeal rights, and denying all other requests for relief. On May 10, 2013, Appellant filed a timely nunc pro tunc notice of appeal.[1]

On appeal, Appellant raises the following issues for our review.

1. Whether [the] trial court erred when it failed to properly colloquy [Appellant] in accordance with Pa.R.C.P. 590 and thereby caused [Appellant] to accept a plea that was not voluntayily [sic], intelligently, or knowingly made?
2. Whether [the] trial court erred when it failed to consider mitigating factors and possible drug treatment programs when it sentenced [Appellant]?

Appellant's Brief at 4.

In his first issue, Appellant argues that the trial court "erred when it failed to properly colloquy him in accordance with Pa.R.C.P. 590, which ultimately caused him to accept a plea that was not voluntarily, intelligently, or knowingly made." Id. at 8. Referencing the transcript from his guilty plea hearing, Appellant asserts the trial court failed to inquire about several of the factors enumerated in Rule 590. Id. at 9.

In assessing challenges to the validity of a guilty plea, we are guided by the following standard of review. Generally, "the entry of a guilty plea constitutes a waiver of all defects and defenses except lack of jurisdiction, invalidity of the plea, and illegality of the sentence." Commonwealth v. Main, 6 A.3d 1026, 1028 (Pa.Super. 2010). "Our law presumes that a defendant who enters a guilty plea was aware of what he was doing. He bears the burden of proving otherwise." Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa.Super. 2011) (citation omitted).

[A] defendant has no absolute right to withdraw a guilty plea; rather, the decision to grant such a motion lies within the sound discretion of the trial court. In the seminal case of Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973), the Supreme Court set forth the standard for determining when a motion to withdraw a guilty plea prior to sentencing should be granted. The Court stated that "[a]lthough there is no absolute right to
withdraw a guilty plea, properly received by the trial court, it is clear that a request made before sentencing … should be liberally allowed." [Id. at 271].

Commonwealth v. Muhammad, 794 A.2d 378, 382-383 (Pa.Super. 2002).

Further,
post-sentence motions for withdrawal [of a guilty plea] are subject to higher scrutiny since courts strive to discourage entry of guilty pleas as sentence-testing devices. A defendant must
demonstrate that manifest injustice would result if the court were to deny his post-sentence motion to withdraw a guilty plea. Manifest injustice may be established if the plea was not tendered knowingly, intelligently, and voluntarily. In determining
whether a plea is valid, the court must examine the totality of circumstances surrounding the plea. A deficient plea does not per se establish prejudice on the order of manifest injustice.

Commonwealth v. Broaden, 980 A.2d 124, 129 (Pa.Super. 2009) (citations and quotation marks omitted), appeal denied, 992 A.2d 885 (Pa. 2010).

To the extent Appellant contends that his guilty plea was not knowing, voluntary, or intelligent, we conclude that he waived this substantive claim. Our review of the record reveals that Appellant did not object to his plea at the December 29, 2010 guilty plea hearing, at any time prior to sentencing, or at his February 23, 2011 sentencing hearing. Appellant also failed to file a post-sentence motion seeking to withdraw his guilty plea. In order to preserve an issue related to a guilty plea, an appellant must either object at the colloquy or otherwise raise the issue at the guilty plea hearing, the sentencing hearing, or through a post-sentence motion. Commonwealth v. Tareila, 895 A.2d 1266, 1270 n.3 (Pa.Super. 2006); see also Pa.R.A.P. 302(a) (stating, "[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal[]"). Accordingly, Appellant's first issue must fail.

In his second issue, Appellant argues "the [t]rial [c]ourt erred when it failed to consider mitigating factors and possible drug treatment programs when it sentenced [Appellant]." Appellant's Brief at 12. Preliminarily, we note that Appellant's Rule 1925(b) statement frames this issue as an ineffective assistance of counsel claim averring counsel "[f]ailed to appeal his sentence as requested by the Defendant." Appellant's Rule 1925(b) statement, 6/28/13, at ¶ 1(b).

Prior to addressing this claim, we must first determine whether Appellant has preserved this claim for our review. Pennsylvania Rule of Appellate Procedure 1925(b) by its text requires that statements "identify each ruling or error that the appellant intends to challenge with sufficient detail to identify all pertinent issues for the judge." Pa.R.A.P. 1925(b)(4)(ii). The Rule also requires that "[e]ach error identified in the Statement will be deemed to include every subsidiary issue contained therein which was raised in the trial court …." Id. at 1925(b)(4)(v). Finally, any issues not raised in accordance with Rule 1925(b)(4) will be deemed waived. Id. at

1925(b)(4)(vii). Our Supreme Court has recently held that Rule 1925(b) is a bright-line rule.

Our jurisprudence is clear and well-settled, and firmly establishes that: Rule 1925(b) sets out a simple bright-line rule, which obligates an appellant to file and serve a Rule 1925(b) statement, when so ordered; any issues not raised in a Rule 1925(b) statement will be deemed waived; the courts lack the authority to countenance deviations from the Rule's terms; the Rule's provisions are not subject to ad hoc exceptions or selective enforcement; appellants and their counsel are responsible for complying with the Rule's requirements; Rule 1925 violations may be raised by the appellate court sua sponte, and the Rule applies notwithstanding an appellee's request not to enforce it; and, if Rule 1925 is not clear as to what is required of an appellant, on-the-record actions taken by the appellant aimed at compliance may satisfy the Rule. We yet again repeat the principle first stated in [Commonwealth v.] Lord, [719 A.2d 306 (Pa. 1998)] that must be applied here: "[I]n order to preserve their claims for appellate review, [a]ppellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925. Any issues not raised in a Pa.R.A.P. 1925(b) statement will be deemed waived." [Id.] at 309.

Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (footnote omitted).

Following our Supreme Court's instructions in Hill, we conclude that Appellant has waived this issue for failing to include a discretionary aspects of sentencing claim in his Rule 1925(b) statement.[2]

Accordingly, for the foregoing reasons, we conclude Appellant's issues are waived. Therefore, we affirm Appellant's February 23, 2011 judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.


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