J-S92024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

SIAM SHABAZZ YEISER

                            Appellant                  No. 712 WDA 2016


               Appeal from the Judgment of Sentence April 4, 2016
                In the Court of Common Pleas of Clearfield County
               Criminal Division at No(s): CP-17-CR-0000200-2016


BEFORE: SHOGAN, J., MOULTON, J., and STRASSBURGER, J.*

MEMORANDUM BY MOULTON, J.:                        FILED DECEMBER 20, 2017

       Siam Shabazz Yeiser appeals from the April 4, 2016 judgment of

sentence entered in the Clearfield County Court of Common Pleas following

his entry of a guilty plea to possession of contraband by an inmate

(controlled substance).1 Because Yeiser did not challenge the validity of his

plea in his post-sentence motion, we are constrained to affirm the judgment

of sentence.

       The trial court set forth the factual and procedural history of this

matter as follows:

              The [aforementioned] charges were filed as a result of
            an incident that occurred on May 16, 2015 at the State
____________________________________________


       *
           Retired Senior Judge assigned to the Superior Court.
       1
           18 Pa.C.S. § 5123(a.2).
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        Correctional Institution in Houtzdale wherein [Yeiser] was
        an inmate. It was alleged that at that time [Yeiser] was
        visiting with Jasmine Santos in the prison visiting room.
        Santos allegedly placed three small balloons containing
        marijuana into an M&M bag which was passed to [Yeiser].
        [Yeiser] then swallowed the balloons. The circumstances
        were observed by security personnel at the prison and
        Yeiser was placed in a dry tank. Thereafter, [Yeiser]’s
        stool was searched and the three different colored balloons
        were confiscated. The Erie Crime Lab did an analysis and
        determined that the substance inside the balloons was
        marijuana, with a total weight of 2.98 grams.

            [Yeiser]’s preliminary hearing was scheduled for
        February 29, 2016, at which time he waived his case to
        court. [Yeiser] was represented by the Public Defender at
        the time of the preliminary hearing. A negotiated plea
        agreement and guilty plea colloquy document was filed
        with the record on March 7, 2016. [Yeiser] agreed to
        plead guilty to the Felony charge of Possession of
        Contraband/Inmate and receive a minimum period of 1
        year and a maximum period of 2 years incarceration. The
        plea agreement provided that fines, costs, restitution and
        all other terms were up to the Court . . . . [Yeiser]
        appeared at sentencing court on April 4, 2016, along with
        his attorney. The only question at [the] time of sentencing
        was whether the Court would impose the 1-2 year period
        of incarceration concurrent or consecutive to the other
        periods of incarceration currently being served by [Yeiser].
        Following argument by both the Commonwealth and the
        Defense, the Court sentenced [Yeiser] to a consecutive
        period of incarceration.

Opinion, 7/28/16, at 1-2 (“1925(a) Op.”). On April 13, 2016, Yeiser filed a

post-sentence motion for reconsideration of sentence. The trial court denied

this motion on May 10, 2016.

     Yeiser timely appealed to this Court.     However, we remanded this

matter for the filing of a counseled Pennsylvania Rule of Appellate Procedure

1925(b) statement and a new Rule 1925(a) opinion, because “the trial court


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erred by responding to the merits of the issues Yeiser raised in [a] pro se

1925(b) statement.” See Commonwealth v. Yeiser, No. 712 WDA 2016,

unpublished mem. at *4 (Pa.Super. filed Mar. 29, 2017).        Yeiser filed his

counseled Rule 1925(b) statement on April 19, 2017, and the trial court

issued a new Rule 1925(a) opinion on May 2, 2017.

       On May 23, 2017, we directed the parties to submit new briefs

addressing the issues and, on June 30, 2017, Yeiser’s counsel filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), and a petition to

withdraw as counsel.2        In our second memorandum, we denied counsel’s

petition to withdraw because a non-frivolous issue existed and directed

counsel to file an advocate’s brief. See Commonwealth v. Yeiser, No. 712

WDA 2016, unpublished mem. (Pa.Super. filed Sept. 1, 2017).            Yeiser’s

counsel filed an advocate’s brief on October 25, 2017; the Commonwealth

filed its brief on November 22, 2017.

       In his brief, Yeiser raises the following two questions: “Whether Rule

590(B)(2) requires the trial court to conduct an oral colloquy of Yeiser before

accepting his guilty plea, and if so, whether a violation of Rule 590(B)(2)

____________________________________________


       2
         Counsel’s first brief was also an Anders brief, to which counsel
attached a petition to withdraw. We did not dispose of counsel’s petition in
our first memorandum. In his June 30, 2017 Anders brief, counsel attached
a petition to withdraw but did not file it of record. Accordingly, on August
15, 2017, we denied counsel’s first petition to withdraw and directed the
Prothonotary to file counsel’s second petition.      See Super. Ct. Order,
8/15/17.



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requires the Court to vacate Yeiser’s judgement [sic] of sentence.” Yeiser’s

Br. at 7.

       It is well settled that “[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[, and the f]ailure to employ either measure results in waiver.” 3

Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa.Super. 2013); see

also Commonwealth v. Rush, 959 A.2d 945, 949 (Pa.Super. 2008) (“[A]

request to withdraw a guilty plea on the grounds that it was involuntary is

one of the claims that must be raised by motion in the trial court in order to

be reviewed on direct appeal”). “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.’”       Lincoln, 72 A.3d at 610 (quoting Commonwealth v.

Roberts, 352 A.2d 140, 141 (Pa.Super. 1975)); see also Rush, 959 A.2d

at 949 (“[F]or any claim that was required to be preserved, this Court

cannot review a legal theory in support of that claim unless that particular

legal theory was presented to the trial court. Thus, even if an appellant did

seek to withdraw pleas . . . in the trial court, that appellant cannot support

those claims in this Court by advancing legal arguments different than the

____________________________________________


       3
      Yeiser’s counsel failed to identify this issue in either of the two
Anders briefs he filed with this Court.



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ones that were made when the claims were preserved.”) (internal citation

omitted).

       In his April 13, 2016 post-sentence motion, Yeiser asked the trial court

to modify his sentence to run concurrent, rather than consecutive, to his

prior sentence.      Yeiser did not challenge the validity of his guilty plea.

Accordingly, we are constrained to conclude that Yeiser has waived his issue

on appeal.4
____________________________________________


       4
         Had Yeiser not waived this issue, his claim would not have been
frivolous. When a defendant tenders a guilty plea or plea of nolo contendere
based on a plea agreement, Pennsylvania Rule of Criminal Procedure
590(B)(2) provides that “[t]he judge shall conduct a separate inquiry of the
defendant on the record to determine whether the defendant understands
and voluntarily accepts the terms of the plea agreement on which the guilty
plea or plea of nolo contendere is based.” Pa.R.Crim.P. 590(B)(2). The
comments to Rule 590 clarify this requirement:

              It is advisable that the judge conduct the examination
           of the defendant.      However, paragraph (A) does not
           prevent defense counsel or the attorney for the
           Commonwealth from conducting part or all of the
           examination of the defendant, as permitted by the judge.
           In addition, nothing in the rule would preclude the use of a
           written colloquy that is read, completed, signed by the
           defendant, and made part of the record of the
           proceedings. This written colloquy would have to be
           supplemented        by     some     on-the-record      oral
           examination. Its use would not, of course, change any
           other requirement of law, including these rules, regarding
           the prerequisites of a valid guilty plea or plea of nolo
           contendere.

                                           ...

             When a guilty plea, or plea of nolo contendere, includes
           a plea agreement, the 1995 amendment to paragraph
(Footnote Continued Next Page)


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      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/2017




                       _______________________
(Footnote Continued)

          (B)(2) requires that the judge conduct a separate inquiry
          on the record to determine that the defendant understands
          and accepts the terms of the plea agreement.          See
          Commonwealth v. Porreca, 595 A.2d 23 (Pa. 1991).

Id. at cmt (emphasis added); see also Commonwealth v. Gunter, 771
A.2d 767, 771 (Pa. 2001) (Nigro, J., concurring) (“[R]egardless of the
sufficiency of the written colloquy,” where no on-the-record colloquy
appears, a defendant cannot enter into plea “knowingly and freely.”).

      Here, neither the trial court nor counsel colloquied Yeiser on-the-
record regarding his plea.         Instead, the trial court accepted the
Commonwealth’s representation in a written plea colloquy (signed nearly
five weeks before the in-court proceeding) that Yeiser had executed a
negotiated plea agreement with the Commonwealth; the court then
proceeded directly to sentencing. N.T., 4/4/16, at 1. Despite Yeiser’s
waiver, given the significant rights surrendered by a defendant who pleads
guilty or nolo contendere, we note our concerns about this truncated plea
proceeding, which lacked an oral plea colloquy.



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