J-S76020-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

RICKY E. GRUBBS

                            Appellant                  No. 923 WDA 2014


             Appeal from the Judgment of Sentence April 14, 2014
                In the Court of Common Pleas of Indiana County
              Criminal Division at No(s): CP-32-CR-0000514-2013


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OLSON, J.

JUDGMENT ORDER BY PANELLA, J.                      FILED FEBRUARY 5, 2015

        Appellant, Ricky E. Grubbs, appeals from the judgment of sentence

entered April 14, 2014, by the Honorable Thomas M. Bianco, Court of

Common Pleas of Indiana County. We affirm.

        On August 26, 2013, Grubbs entered a nolo contendere plea to one

count of Statutory Sexual Assault,1 a felony of the second degree, in return

for which the Commonwealth agreed to nolle pros all remaining charges. At

the hearing, the Commonwealth recommended a sentence of one year less

one day to two years less one day imprisonment. See N.T., Plea Hearing,

8/26/13 at 1.      During the plea colloquy, the trial court explicitly informed



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1
    18 Pa.C.S. § 3122.1(a)(2).
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Grubbs that it was not obligated to sentence him to the recommended

sentence:

        THE COURT: Now, do you understand that the District
        Attorney is recommending that I mitigate and give you
        that type of sentence?

        THE DEFENDANT: Yes, sir.

        THE COURT:      Now, here’s the important part. Do you
        understand that that’s just a recommendation and the
        [c]ourt would not have to follow that recommendation?

        THE DEFENDANT: Yes, sir.

        THE COURT: Do you understand that if I did not follow
        that recommendation that in and of itself would not serve
        as the basis for you to withdraw your plea? Do you
        understand that?

        THE DEFENDANT: Yes, sir.

        THE COURT: Now, other than these things that we have
        discussed, have there been any other deals made or any
        promises made to you in connection with your plea?

        THE DEFENDANT: No, sir.

        THE COURT: Mr. Grubbs, do you have any questions at all
        for me?

        THE DEFENDANT: No, sir.

Id. at 9-10.   At sentencing, the trial court indicated that a pre-sentence

investigation report prepared in this matter revealed Grubbs’ prior record

score to be a five.   See N.T., Sentencing, 4/11/14 at 11. After informing

Grubbs that a county sentence was not possible even within the mitigated

range of the sentencing guidelines, the court proceeded to sentence Grubbs




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to two to seven years’ imprisonment in a state correctional institution. See

id. at 11-13.

       Grubbs filed a timely pro se notice of appeal on April 23, 2014. On

June 24, 2014, Grubbs’s court-appointed counsel filed a Rule 1925(b)

statement.      On appeal, Grubbs argues that his nolo contendere plea was

unknowingly entered because he did not understand that his sentence

involved the possibility of incarceration in a state correctional facility. See

Appellant’s Brief at 8.

       Our review of the record reveals that Grubbs did not challenge his

guilty plea either at sentencing or in a post-sentence motion. As such, we

are constrained to find that Grubbs has waived this issue on appeal.        See

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.”); Commonwealth v. Tareila,

895 A.2d 1266, 1270 n.3 (Pa. Super. 2006) (“Where an appellant fails to

challenge his guilty plea in the trial court, he may not do so on appeal.”).2

       Judgment of sentence affirmed.




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2
  Even if we were able to review Grubbs’s claim, we would not merit relief.
As recounted supra, the transcript of the plea hearing indicates that the trial
court explicitly informed Grubbs that it was not obligated to impose the
sentence recommended by the Commonwealth. See N.T., Plea Hearing,
8/26/13 at 9-10.



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J-S76020-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/5/2015




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