J-S30040-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

STANLEY ORLIN STIRES

                         Appellant                    No. 83 EDA 2015


        Appeal from the Judgment of Sentence November 13, 2014
          In the Court of Common Pleas of Northampton County
           Criminal Division at No(s): CP-48-CR-0001327-2014


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

CONCURRING MEMORANDUM BY GANTMAN, P.J.:FILED OCTOBER 14, 2015

      I agree with the majority that prior to Appellant’s entry of his guilty

plea, the trial court failed to conduct a proper on-the-record oral colloquy to

ascertain whether Appellant was aware of his rights and the consequences of

the plea.   Likewise, the record contains no written colloquy.    Therefore, I

concur in the result of the majority’s disposition, which vacates Appellant’s

judgment of sentence because no written guilty plea colloquy or proper on-

the-record oral plea colloquy occurred.     See Commonwealth v. Hodges,

789 A.2d 764 (Pa.Super. 2002) (stating Pennsylvania Rules of Criminal

Procedure mandate that pleas be taken in open court, and require court to

conduct on-the-record colloquy to ascertain whether defendant is aware of

his rights and consequences of his plea).

      I write separately because I do not fully agree with the majority’s
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analysis regarding the potential waiver of Appellant’s challenge to his guilty

plea. To avoid waiver, 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.”

Commonwealth v. Lincoln, 72 A.3d 606, 610 (Pa.Super. 2013), appeal

denied, 624 Pa. 688, 87 A.3d 319 (2014). Importantly:

           [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 or to attack the discretionary aspects of sentencing
           in the trial court, the appellant cannot support those claims
           in this Court by advancing legal arguments different than
           the ones that were made when the claims were preserved.

Id. (citation omitted). But see Commonwealth v. Jasper, 472 Pa. 226,

372 A.2d 395 (1976) (holding guilty plea was invalid due to trial court’s

misrepresentation to defendant during plea colloquy, where defendant

objected to voluntariness of plea but did not point to specific defect in

colloquy; once issue of voluntariness of plea is raised, Pennsylvania Rules of

Criminal    Procedure    require   that    constitutional   validity   of   plea   be

demonstrated on record); Commonwealth v. Edwards, 410 A.2d 841

(Pa.Super. 1979) (citing Jasper to reject Commonwealth’s argument that

Appellant waived his challenge to adequacy of plea colloquy where Appellant

asserted broadly in petition to withdraw plea that he did not enter plea

voluntarily and intelligently).

      In my view, Jasper and Edwards stand for the narrow proposition

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that where a defendant generally claims he did not enter his plea voluntarily,

knowingly, or intelligently, this Court may reach the issue of whether the

trial court conducted an adequate on-the-record colloquy pursuant to

Pa.R.Crim.P. 590. I do not read those cases to hold that a broad claim of

involuntariness is sufficient to preserve any issues regarding the validity of a

defendant’s plea, other than defects in (or the absence of) a colloquy.

      Moreover, I disagree with the majority’s reliance on Commonwealth

v. Broaden, 980 A.2d 124 (Pa.Super. 2009), and Commonwealth v.

Pantalion, 957 A.2d 1267 (Pa.Super. 2008), as both of those cases

involved plea challenges which also implicated the legality of the defendant’s

sentence. See Broaden, supra (addressing defendant’s claim that his plea

was   not   knowing   and    voluntary   on   basis   that   he   was   unaware

Commonwealth would seek mandatory minimum sentence, where defendant

included claim in post-sentence motion but broadly stated in Pa.R.A.P.

1925(b) statement that trial court abused its discretion when it denied

Appellant’s post-sentence motion to withdraw plea); Pantalion, supra

(stating defendant preserved her challenge to guilty plea even though she

presented different basis to trial court for withdrawing plea, because plea

challenge was bundled with legality of sentence issue involving alleged error

in grading of forgery offense); Commonwealth v. Oree, 911 A.2d 169

(Pa.Super. 2006), appeal denied, 591 Pa. 699, 918 A.2d 744 (2007) (stating

legality of sentence is nonwaivable issue and appellate court can review


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illegal sentence sua sponte).

      I do not think Broaden and Pantalion apply here because Appellant’s

challenge to the validity of his guilty plea does not implicate the legality of

his sentence. Nevertheless, in Appellant’s post-sentence motion to withdraw

the plea and Rule 1925(b) statement, he raised the issue of whether his

guilty plea was knowing and voluntary.        In his brief, Appellant argues,

“[T]here was clearly doubt that [Appellant] in fact knew the rights he was

giving up and the presumption of innocence.”         (Appellant’s Brief at 8).

Therefore, I agree with the majority only insofar as the majority reviewed

the record for a proper plea colloquy.      See Jasper, supra; Edwards,

supra. Absent those colloquies having occurred, I concur in the majority’s

disposition to vacate and remand.




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