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[U] Commonwealth v. Kim

Superior Court of Pennsylvania

March 6, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
KYUNG SOON KIM Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence April 15, 2013 In the Court of Common Pleas of Montgomery County Criminal Division at No: CP-46-CR-0000325-2012

BEFORE: ALLEN, STABILE, and STRASSBURGER, [*] JJ.

MEMORANDUM

STABILE, J.

Appellant Kyung Soon Kim appeals from a judgment of sentence entered in the Court of Common Pleas of Montgomery County (trial court) following his guilty plea to theft by unlawful taking[1] and conspiracy to commit theft by unlawful taking.[2] For the reasons set forth below, we affirm.

The facts underlying this appeal are undisputed. As the trial court recounted:

On January 25, 2013, [Appellant] appeared in court accompanied by counsel and admitted the following facts. Ms. Kathleen Chung held the power of attorney for her son, who had moved to South Korea. Ms. Chung's son left her in care of his automobile, a 2008-model Lexus. With Ms. Chung's permission, [Appellant] drove the vehicle. After having put "many miles" on the vehicle, [Appellant] instructed Ms. Chung how to make a false claim to the police that the vehicle was stolen, and how to submit a false claim to the firm that insured the vehicle against theft. [Appellant] took the vehicle and hid it in his garage, and Ms. Chung reported the vehicle stolen and submitted a claim to the insurer. Two years later, Ms. Chung admitted to making the false report to the police and submitting the fraudulent claim to the insurer. Although the insurer recovered the Lexus and sold it at an auction, the sale price fell short of the amount paid on the fraudulent claim by $24, 473.70.
By admitting to these facts, [Appellant] admitted to the factual basis for his plea. During the oral colloquy, [Appellant] testified that he understood he had a right to trial by jury. [He] also indicated that he understood that he was presumed innocent until proven guilty. With the assistance of counsel, [Appellant] completed a written guilty plea colloquy, which was admitted . . . at the guilty plea hearing. [Appellant] testified that he recognized the document, that he had reviewed it in detail with his lawyer, that he understood it, and that he had initialed each page and signed and dated the last page. In the written colloquy, [Appellant] attested that his lawyer explained all the things a person must have done to be guilty of the crimes to which he was pleading guilty. By doing so, he indicated that he understood the nature of the charges to which he was pleading guilty. In the written colloquy, he also stated that he was aware of the maximum sentence and fine he could receive for the crimes, the minimum-maximum sentencing scheme for incarceration, and the possibility that terms of incarceration could be made to run consecutively. By doing so, he indicated that he understood the permissible ranges of sentences and fines for the offenses charged. Finally, [Appellant] indicated that he understood the undersigned judge was not bound by the terms of any plea agreement tendered unless she accepted it.

Trial Court Opinion, 7/22/2013, at 1-2 (Internal record citations omitted.) Following the guilty plea, the trial court sentenced Appellant, inter alia, to two consecutive weekends in county prison and seven years of probation. Notes of Testimony (N.T.), 4/15/2013, at 20-21. Appellant, representing himself, appealed to this Court.

Following filing of statement of errors complained of on appeal, [3] the trial court issued an opinion in accordance with Pa.R.A.P. 1925(a). In its 1925(a) opinion, trial court concluded that Appellant was barred from challenging the discretionary aspects of sentence imposed because of his failure to file a post-sentence motion. Id. at 3. Next, addressing Appellant's argument that his convictions were invalid, the trial court concluded Appellant was barred from challenging his guilty plea on appeal. Id. at 7. Specifically, the trial court noted that, at the time Appellant pleaded guilty, he was aware that Ms. Chung was listed as his co-conspirator. Id.

On appeal, Appellant raises three issues for our review.[4] First, he argues that the sentence meted out to him was too harsh relative to Ms. Chung's sentence. Second, Appellant argues that the trial court erred in convicting him of conspiracy because the complaint was defective to the extent it listed him as his co-conspirator. Finally, he argues that, given the lack of evidence, the trial court erred in convicting him of theft by unlawful taking.

Preliminarily, we observe that Pa.R.A.P. 302 provides that "issues not raised in the lower court are waived and cannot be raised for the first time on appeal." Commonwealth v. Jarvis, 663 A.2d 790, 791 (Pa.Super. 1995). Thus, "[i]ssues challenging the discretionary aspects of a sentence must be raised in a post-sentence motion or by presenting the claim to the trial court during the sentencing proceedings. Absent such efforts, an objection to a discretionary aspect of a sentence is waived." Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa.Super. 2005). Here, our review of the record reveals that Appellant failed to object to the discretionary aspects of the sentence imposed either before the trial court or in a post-sentence motion. We, therefore, conclude that he has waived his challenge to the discretionary aspect of his sentence.[5]

We next address Appellant's contention that the trial court erred in convicting him of conspiracy because the criminal complaint was defective. In particular, he argues that the complaint listed him as his co-conspirator, instead of Ms. Chung. The Commonwealth points out that Appellant's argument regarding the deficiency of the complaint is waived. Specifically, the Commonwealth notes that Appellant failed to preserve this issue for review by failing to assert it below. We agree. "It is well settled that issues not raised below cannot be advanced for the first time in a 1925(b) statement or on appeal." Irwin Union Nat. Bank & Trust Co. v. Famous, 4 A.3d 1099, 1104 (Pa.Super. 2010), appeal denied, 20 A.3d 1212 (Pa. 2011); see also Jarvis, 663 A.2d at 791. Upon reviewing the entire record, we conclude that Appellant has waived his challenge to the deficiency of the complaint because he failed to raise this issue below.

We lastly address Appellant's contention that the trial court erred in convicting him of theft by unlawful taking. Specifically, he argues that there was insufficient evidence to demonstrate that he had the requisite intent to deprive the owner of the vehicle. We must reject Appellant's argument because it lacks merit and is nothing more than a challenge to his guilty plea. When an appellant enters a guilty plea, he waives his right "to challenge on appeal all non-jurisdictional defects except the legality of his sentence and the validity of his plea." Commonwealth v. Rush, 909 A.2d 805, 807 (Pa.Super. 2006). Also, "[i]t is well established that any issue relating to sufficiency of the evidence is waived by entry of a guilty plea." See Commonwealth v. Rounsley, 717 A.2d 537, 539 (Pa.Super. 1998.)

Here, it is undisputed that Appellant pleaded guilty and, as a result of his guilty plea, the trial court convicted him of theft by unlawful taking.[6] Moreover, our review of the record reveals that Appellant agreed before the trial court with the Commonwealth's recitation of the facts. N.T., 1/25/2013, at 12. Because he pleaded guilty to theft by unlawful taking, Appellant's sufficiency of the evidence argument is waived.

Judgment of Sentence affirmed.

Judgment Entered.


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