J-S29006-17

                                  2017 PA Super 152



COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

STIVEN A. MONJARAS-AMAYA

                            Appellant                 No. 3065 EDA 2016


            Appeal from the Judgment of Sentence August 25, 2016
                In the Court of Common Pleas of Bucks County
             Criminal Division at No(s): CP-09-CR-0001085-2016


                                          *****

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

STIVEN A. MONJARAS-AMAYA

                            Appellant                 No. 3066 EDA 2016


            Appeal from the Judgment of Sentence August 25, 2016
                In the Court of Common Pleas of Bucks County
             Criminal Division at No(s): CP-09-CR-0002738-2016


BEFORE: LAZARUS, J., SOLANO, J., and STEVENS, P.J.E.*

OPINION BY LAZARUS, J.:                                  FILED May 19, 2017




____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S29006-17



        Stiven A. Monjaras-Amaya appeals from the judgment of sentence,

entered in the Court of Common Pleas of Bucks County. After our review,

we affirm.

        On January 7, 2016, Monjaras-Amaya was charged with resisting

arrest,1 loitering and prowling at nighttime,2 use/possession of drug

paraphernalia,3 and purchase of alcoholic beverage by a minor.4 Monjaras-

Amaya waived his preliminary hearing, and the charges were bound over for

trial under docket CP-09-CR-0001085-2016.

        On March 23, 2016, Monjaras-Amaya was arrested for driving under

the influence (DUI) and related offenses. He waived his preliminary hearing,

and these charges5 were bound over for trial at docket number CP-09-CR-

0002738-2016.

____________________________________________


1
    18 Pa.C.S.A. § 5104.
2
    18 Pa.C.S.A. § 5506.
3
    35 P.S. § 780-113(a)(32).
4
    18 Pa.C.S.A. § 6308(a).
5
  DUI-highest rate of alcohol (BAC .16+), 75 Pa.C.S.A. § 3802(c); DUI-
controlled substance-Schedule 1, 75 Pa.C.S.A. § 3802(d)(1)(i); DUI-
controlled substance-metabolite, 75 Pa.C.S.A. § 3802(d)(1)(iii); DUI-
controlled substance-combination alcohol/drugs, 75 Pa.C.S.A. § 3802(d)(3);
accident causing damage to unattended vehicle or property, 75 Pa.C.S.A. §
3745(a); reckless driving, 75 Pa.C.S.A. § 3736(a); careless driving, 75
Pa.C.S.A. § 3714(a); driving at unsafe speed, 75 Pa.C.S.A. § 3361;
purchase of alcohol beverage by minor, 18 Pa.C.S.A. § 6308; and public
drunkenness, 18 Pa.C.S.A. § 5505.



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        Pursuant to a plea agreement, the Commonwealth nolle prossed the

resisting arrest charge on docket CP-09-CR-0001085-2016. On August 25,

2016, Monjaras-Amaya appeared before the Honorable Wallace H. Bateman,

Jr., and entered a plea of guilty to all of the remaining charges on both

dockets.     Prior to entering his plea, Monjaras-Amaya reviewed a written

colloquy with his attorney, and he initialed and signed it.

        Following entry of his guilty plea, the court sentenced Monjaras-Amaya

to 72 hours to 6 months’ incarceration, a $1,000 fine, and a concurrent term

of 12 months’ probation. No post-sentence motions were filed. Monjaras-

Amaya filed timely notices of appeal on both dockets,6 as well as a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

He raises two issues for our review:

           1. Whether [Monjaras-Amaya’s] acknowledgement of the risk
              of collateral immigration consequences made his guilty
              plea “knowing” and “voluntary” even while his guilty plea
              indicated profound confusion?

           2. Whether Pennsylvania’s warnings of possible immigration
              consequences are sufficient to meet the requirements of
              Padilla v. Kentucky, 559 U.S. 356 (2010)?

Appellant’s Brief, at 5.

        Monjaras-Amaya argues that the trial court erred in accepting his

guilty plea because the colloquy indicated that he was not apprised of the


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6
    This Court consolidated the appeals sua sponte pursuant to Pa.R.A.P. 513.



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J-S29006-17



immigration consequences.7 He also argues that Pennsylvania’s “approach

to immigration consequences warnings” does not meet the federal standard

articulated in Padilla.

        Pennsylvania law makes clear that by entering a plea of guilty, a

defendant waives his right to challenge on direct appeal all nonjurisdictional

defects except the legality of the sentence and the validity of the plea.

Commonwealth v. Pantalion, 957 A.2d 1267, 1271 (Pa. Super. 2008). In

order to preserve an issue related to a guilty plea, an appellant must either

“object[ ] at the sentence colloquy or otherwise raise[ ] the issue at the

sentencing hearing or through a post-sentence motion.”              Commonwealth

v. D'Collanfield,       805    A.2d    1244,     1246   (Pa.   Super.   2002).   See

Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i); see also 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.”).

       In D'Collanfield, we held appellant’s issue challenging his guilty plea

was waived since it was not raised at the colloquy, at the sentencing

hearing, or through post-sentence motions.                 See Commonwealth v.

Lincoln, 72 A.3d 606, 609–10 (Pa. Super. 2013) (“A defendant wishing to

challenge the voluntariness of a guilty plea on direct appeal must either


____________________________________________


7
  The trial court states that as of December 14, 2016, Immigration and
Customs Enforcement (ICE) had detained Monjaras-Amaya while awaiting
the start of his deportation case.



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J-S29006-17



object during the plea colloquy or file a motion to withdraw the plea within

ten days of sentencing.       Failure to employ either measure results in

waiver.”) (citations omitted). Moreover, “[a] party cannot rectify the failure

to preserve an issue by proffering it in response to a Rule 1925(b) order.”

Commonwealth v. Kohan, 825 A.2d 702, 706 (Pa. Super. 2003)

(emphasis added) (citations omitted).             See also Commonwealth v.

Tareila,   895   A.2d   1266,    1270    n.   3    (Pa.   Super.   2006)   (same);

Commonwealth v. Watson, 835 A.2d 786, 791 (Pa. Super. 2003) (same).

      The purpose of this waiver rule is to allow the trial court to correct its

error at the first opportunity, and, in so doing, further judicial efficiency. “It

is for the court which accepted the plea to consider and correct, in the first

instance, any error which may have been committed. See Commonwealth

v. Roberts, 352 A.2d 140, 141 (Pa. Super. 1975) (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”).

      Here, Monjaras-Amaya failed to either raise this challenge during his

plea colloquy or file a post-sentence motion seeking to withdraw his plea.

Rather, for the first time after filing his notice of appeal, Monjaras-Amaya

argues that his guilty plea was invalid. Although Monjaras-Amaya raised the

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claim in his Rule 1925(b) statement, the trial court, at that point, is without

jurisdiction and cannot grant relief. See Pa.R.A.P. 1701 (“Except as

otherwise prescribed by these rules, after an appeal is taken or review of a

quasijudicial order is sought, the trial court or other government unit may no

longer proceed further in the matter.”).

       The record reveals that Monjaras-Amaya never challenged his guilty

plea in the trial court before raising it in his Rule 1925(b) statement.

Accordingly, this issue is waived.8       Watson, supra.

       Judgment of sentence affirmed.9

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8
  The trial court incorrectly states that although no post-sentence motion
was filed, Monjaras-Amaya “preserved this issue for appeal after he filed a
timely notice of appeal[.]” Trial Court Opinion, 12/9/16, at 6. We recognize
that, despite the absence of a post-sentence motion, the trial court chose to
address Monjaras-Amaya’s claim in its opinion filed pursuant to Pa.R.A.P.
1925(a). That the trial court chose to do so in no way alters the result. See
Commonwealth v. Melendez–Rodriguez, 856 A.2d 1278, 1287–89 (Pa.
Super. 2004) (en banc) (trial court's decision to address issue in its reply to
defendant's statement of issues complained of on appeal did not preserve
issue for appellate review). We note, too, that the Commonwealth raised
the issue of waiver in its counter-statement of the questions presented. See
Commonwealth’s Brief, at 1.
9
  Although not raised in his issues on appeal, we acknowledge Monjaras-
Amaya’s argument in his brief that counsel was ineffective in failing to
explain the risk of deportation to him. This issue is properly brought in a
petition under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
See Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002) (as general rule,
petitioner should wait to raise claims of ineffective assistance of trial counsel
until collateral review); Commonwealth v. Holmes, 79 A.3d 562 (Pa.
2013). Such claims are within the purview of the PCRA. See 42 Pa.C.S.A. §
9543(a)(2)(ii), (iii); see also Commonwealth v. Descardes, 136 A.3d
493, 501–02 (Pa. 2016) (stating it is well established that appellant's claim
(Footnote Continued Next Page)


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J-S29006-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/19/2017




                       _______________________
(Footnote Continued)

of ineffective assistance of plea counsel based upon counsel's failure to
advise him of collateral consequences of plea, was cognizable under PCRA).



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