J-S69004-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JAMES WHITE

                            Appellant                 No. 1851 EDA 2013


             Appeal from the Judgment of Sentence May 31, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0009507-2012


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

MEMORANDUM BY GANTMAN, P.J.:                     FILED DECEMBER 15, 2014

        Appellant, James White, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his

negotiated guilty plea to one count of escape.1 We affirm.

        The relevant facts and procedural history of this appeal are as follows.

Appellant was committed to a Department of Corrections prerelease facility

in Philadelphia. On the night of July 12, 2012, Appellant checked out of the

facility with a pass that allowed him to leave temporarily to work. Appellant

failed to return to the prerelease facility at the required time.       He was

arrested on July 25, 2012. On May 31, 2013, Appellant entered a negotiated

guilty plea to escape. On the same date, the court sentenced Appellant to a
____________________________________________


1
    18 Pa.C.S.A. § 5121(a).
J-S69004-14


term of six (6) to twelve (12) months’ incarceration. The court also granted

immediate parole. Appellant filed a pro se notice of appeal and a voluntary

Pa.R.A.P. 1925(b) statement on June 26, 2013.2

       Appellant raises two issues for our review:

          WAS NOT APPELLANT’S GUILTY PLEA INVALID WHERE,
          DURING THE PLEA COLLOQUY, THE TRIAL COURT FAILED
          TO ADVISE HIM THAT HE WAS PRESUMED INNOCENT
          UNTIL PROVEN GUILTY AND THAT HE HAD A RIGHT TO A
          JURY TRIAL WHERE APPELLANT INDICATED TO THE
          COURT THAT HE DID NOT UNDERSTAND THE NATURE OF
          THE PROCEEDINGS AGAINST HIM?

          DID NOT COUNSEL’S FAILURE EITHER TO OBJECT TO THE
          DEFECTIVE PLEA COLLOQUY OR TO FILE A MERITORIOUS
          MOTION TO WITHDRAW APPELLANT’S GUILTY PLEA
          CONSTITUTE FACIAL INEFFECTIVE ASSISTANCE OF
          COUNSEL, AND IS NOT THAT CLAIM REVIEWABLE ON
          DIRECT APPEAL?

(Appellant’s Brief at 3).

       In his first issue, Appellant argues the trial court failed to inform him

during the oral plea colloquy that he had the right to a jury trial and he was

presumed innocent until proven guilty. Appellant asserts the court neither

asked him whether he knew he had these rights nor ascertained whether he

understood them. Appellant contends he was reluctant to plead guilty; he

emphasizes his previous rejection of the Commonwealth’s plea offer and his

statements to the court that he wanted to “fight the case.”        (Appellant’s

____________________________________________


2
  Appellant had representation during the plea proceedings, and he is
currently represented by new counsel on appeal.



                                           -2-
J-S69004-14


Brief at 10). Appellant also points to his statement at a status hearing that

he did not understand the nature of the proceedings.             According to

Appellant, the court failed to clear up his confusion and fully explain the

rights Appellant would surrender by pleading guilty.      Appellant claims he

“felt defeated” and simply resigned to plead guilty, telling the court “I’m

tired; I’m beat.” Id. at 14 (citing N.T. Guilty Plea, 5/31/13, at 6). Appellant

concludes his guilty plea was not knowing, intelligent, and voluntary, and

this Court should permit him to withdraw the plea. We cannot agree.

      Initially, 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, 72 A.3d 606, 609-10 (Pa.Super. 2013), appeal

denied, ___ Pa. ___, 87 A.3d 319 (2014) (holding defendant failed to


                                     -3-
J-S69004-14


preserve challenge to validity of guilty plea where he did not object during

plea colloquy or file post-sentence motion to withdraw plea).

        Further, withdrawal of a guilty plea after sentencing requires “a

showing of prejudice on the order of manifest injustice…. A plea rises to the

level   of   manifest   injustice    when   it   was   entered   into   involuntarily,

unknowingly, or unintelligently.”       Commonwealth v. Muhammad, 794

A.2d 378, 383 (Pa.Super. 2002) (internal citations and quotation marks

omitted). The Pennsylvania Rules of Criminal Procedure mandate that pleas

be taken in open court, and require the court to conduct an on-the-record

colloquy to ascertain whether a defendant is aware of his rights and the

consequences of his plea.           Commonwealth v. Hodges, 789 A.2d 764

(Pa.Super. 2002). Specifically, the court must affirmatively demonstrate the

defendant understands: (1) the nature of the charges to which he is

pleading guilty; (2) the factual basis for the plea; (3) his right to trial by

jury; (4) the presumption of innocence; (5) the permissible ranges of

sentences and fines possible; and (6) the judge is not bound by the terms of

the agreement unless he accepts the agreement.                   Pa.R.Crim.P. 590

Comment; Commonwealth v. Watson, 835 A.2d 786 (Pa.Super. 2003).

Nevertheless, “nothing in [Rule 590] would preclude the use of a written

colloquy that is read, completed, signed by the defendant, and made part of

the record of the plea proceedings. This written colloquy would have to be

supplemented by some on-the-record oral examination.” Pa.R.Crim.P. 590


                                        -4-
J-S69004-14


Comment.     See also Commonwealth v. Rush, 909 A.2d 805 (Pa.Super.

2006) (holding defendant entered guilty plea knowingly and voluntarily

where he acknowledged in written colloquy that he understood his rights to

trial by jury and presumption of innocence, and he confirmed during court’s

oral examination that he signed written colloquy and understood its

contents); Commonwealth v. Morrison, 878 A.2d 102 (Pa.Super. 2005)

(holding court’s failure to delineate elements of charges at oral colloquy did

not invalidate otherwise knowing and voluntary guilty plea where defendant

executed written colloquy wherein he admitted he was advised of offenses

outlined in criminal information, which detailed elements of those offenses).

      Pennsylvania law presumes a defendant who entered a guilty plea was

aware of what he was doing, and the defendant bears the burden of proving

otherwise.    Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa.Super.

2003). A defendant who decides to plead guilty is bound by the statements

he makes while under oath, “and he may not later assert grounds for

withdrawing the plea which contradict the statements he made at his plea

colloquy.”   Id.   “This Court evaluates the adequacy of the guilty plea

colloquy and the voluntariness of the resulting plea by examining the totality

of the circumstances surrounding the entry of that plea.”       Muhammad,

supra at 383-84.      “[T]he law does not require that [a defendant] be

completely satisfied with the outcome of his decision to plead guilty.” Rush,

supra at 810. A guilty plea will be deemed valid if an examination of the


                                    -5-
J-S69004-14


totality of the circumstances surrounding the plea shows that the defendant

had a full understanding of the nature and consequences of his plea such

that he knowingly and intelligently entered the plea of his own accord. Id.

at 808.

      Instantly, Appellant lodged no objection to the validity of his guilty

plea during the oral plea colloquy and failed to file a post-sentence motion to

withdraw the plea. Therefore, Appellant’s challenge to the voluntariness of

his guilty plea is waived. See Lincoln, supra.

      Moreover, the record shows Appellant executed a written plea colloquy

indicating he entered the negotiated guilty plea voluntarily, knowingly, and

intelligently. In the written colloquy, Appellant acknowledged, inter alia, the

following consequences of pleading guilty:

          I do not have to plead guilty, even if I committed the
          crimes. I have an absolute right to plead not guilty and
          have a trial. I can have a jury trial or, if I give up my jury
          trial rights, I can have a trial by a judge alone. When I
          plead guilty, I give up my right to have a trial. If I went to
          trial, I would have all the rights listed below plus others.

          I am presumed to be innocent. …

          To convict me, the District Attorney must prove more than
          that I probably committed the crimes.          The District
          Attorney has to prove me guilty “beyond a reasonable
          doubt.” A reasonable doubt is the kind of doubt which
          would cause a normal, reasonable person to hesitate or
          halt or refuse to take any action at all in something very
          important to them.

                                   *    *    *

          My lawyer has fully explained to me that I have a right to a

                                       -6-
J-S69004-14


        jury trial. Nobody can take that right away from me. At a
        jury trial, twelve (12) people, all from Philadelphia, would
        be on the jury and hear the facts of my case.

        If all twelve were convinced beyond a reasonable doubt
        that I was guilty, I would be found guilty.

        If all twelve were not convinced beyond a reasonable
        doubt that I was guilty, I would be found not guilty.

        If all twelve could not agree, I would not be convicted,
        although I might have another trial before a different jury.

        I can help pick my jurors. Each juror would be questioned
        to make sure they would be fair. I can keep anyone off
        the jury who is shown to the judge to be unfair.

        *     *   *

        If I plead guilty, I give up my right to a jury trial, and I
        also give up my right to have a trial by a judge who would
        decide the case alone without a jury.

(Written Guilty Plea Colloquy, 5/31/13).   Appellant also acknowledged he

could be imprisoned for up to seven years and fined $15,000.00, if convicted

of the current charge; plea counsel explained to him the elements of the

offense; and the court was not obligated to accept the plea agreement.

During the oral plea colloquy, the following exchange took place between

Appellant and the court:

        THE COURT: I have in front of me the written guilty plea
        colloquy form. I see that you have signed the bottom of
        page three. Did you do that after you went through pages
        one, two, and three with your attorney and understood all
        the rights you were giving up by not going to trial?

        [APPELLANT]: Yes.

(N.T. Guilty Plea, 5/31/13, at 4).   Notwithstanding his comments that he

                                     -7-
J-S69004-14


was “tired” and “beat” and “need[ed] to have this resolved,” Appellant

unequivocally stated he could read and write the English language; he was

not under the influence of drugs or alcohol; he made the decision to plead

guilty of his own free will; he fully discussed the case and his decision to

plead guilty with plea counsel; and he was satisfied with plea counsel’s

representation. The Commonwealth’s attorney then stated the factual basis

for the plea agreement. Thus, the court made the written colloquy part of

the record of the plea proceedings and supplemented it with an adequate

on-the-record oral examination.          The court’s reference to the written plea

colloquy was sufficient to confirm that Appellant understood he was

presumed innocent and he was giving up his right to a jury trial.             See

Pa.R.Crim.P. 590; Rush, supra; Morrison, supra. Based on the totality of

the circumstances, the record shows Appellant had a full understanding of

the nature and consequences of his plea and voluntarily, knowingly, and

intelligently entered the plea.3 See Rush, supra; Muhammad, supra.

       In his second issue, Appellant argues plea counsel was ineffective for

____________________________________________


3
  Appellant’s statements of confusion about the case bore no relation to the
plea proceedings. Appellant made these statements at an earlier status
hearing. In fact, the court held the status hearing to answer Appellant’s
questions about the case. At the conclusion of the hearing, the court
continued the case to allow Appellant an opportunity to confer with counsel
and decide how to proceed. The oral and written plea colloquies confirm
Appellant understood the nature and consequences of his decision to plead
guilty at the time he entered the plea, two weeks after the status
hearing.



                                           -8-
J-S69004-14


failing to object to the defective plea colloquy or file a motion to withdraw

the guilty plea. Appellant contends this claim is reviewable on direct appeal

because counsel’s ineffectiveness is clear from the record. Appellant further

asserts counsel’s deficient representation excuses the waiver of Appellant’s

claim that he did not enter a knowing and voluntary plea.               Appellant

concludes plea counsel’s ineffectiveness entitles Appellant to withdraw his

guilty plea. We decline to address this claim.

      “[A]s a general rule, a [defendant] should wait to raise claims of

ineffective   assistance   of   trial    counsel   until   collateral    review.”

Commonwealth v. Grant, 572 Pa. 48, 67, 813 A.2d 726, 738 (2002).

“[A]ny ineffectiveness claim will be waived only after a petitioner has had

the opportunity to raise that claim on collateral review and has failed to avail

himself of that opportunity.” Id.

      Nevertheless, the Pennsylvania Supreme Court has recognized two

very limited exceptions to the general rule in Grant regarding the

appropriate timing for review of ineffective assistance of counsel claims:

         First, we appreciate that there may be extraordinary
         circumstances where a discrete claim (or claims) of trial
         counsel ineffectiveness is apparent from the record and
         meritorious to the extent that immediate consideration
         best serves the interests of justice; and we hold that trial
         courts retain their discretion to entertain such claims.

         Second, with respect to other cases and claims…where the
         defendant seeks to litigate multiple or prolix claims of
         counsel ineffectiveness, including non-record-based claims,
         on post-verdict motions and direct appeal, we repose
         discretion in the trial courts to entertain such claims, but

                                        -9-
J-S69004-14


            only if (1) there is good cause shown, and (2) the unitary
            review so indulged is preceded by the defendant’s knowing
            and express waiver of his entitlement to seek PCRA review
            from his conviction and sentence, including an express
            recognition that the waiver subjects further collateral
            review to the time and serial petition restrictions of the
            PCRA.

Commonwealth v. Holmes, 621 Pa. 595, 598-99, 79 A.3d 562, 563-64

(2013) (internal citations and footnotes omitted) (emphasis added).

         Instantly, Appellant failed to raise his ineffectiveness claim before the

trial court, and the claim is not apparent from the record.             Additionally,

Appellant does not seek to litigate multiple or prolix claims of ineffectiveness

accompanied by an express waiver of his entitlement to seek PCRA review.

Thus, neither Holmes exception applies to Appellant’s case.                 See id.

Absent these exceptions, the general rule in Grant applies. See Holmes,

supra at 620, 79 A.3d at 576 (stating ineffective assistance of counsel

claims are to be deferred to PCRA review, and should not be reviewed on

direct    appeal).     Thus,   pursuant   to    Grant,   we   dismiss    Appellant’s

ineffectiveness of counsel claim but without prejudice to Appellant to raise it

in a timely petition for collateral relief. See Grant, supra at 69, 813 A.2d

at 739. Accordingly, we affirm Appellant’s judgment of sentence.

         Judgment of sentence affirmed.




                                       - 10 -
J-S69004-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/15/2014




                          - 11 -
