J-S73003-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOHN HULL                                  :
                                               :
                       Appellant               :   No. 475 MDA 2019

       Appeal from the Judgment of Sentence Entered February 21, 2019
      In the Court of Common Pleas of Luzerne County Criminal Division at
                        No(s): CP-40-CR-0000565-2018


BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                               FILED MARCH 10, 2020

        Appellant, John Hull, appeals from the judgment of sentence entered

following his conviction of aggravated assault.1 We affirm.

        In an information filed on March 3, 2018, Appellant was charged with

several crimes in relation to his striking David Beavers in the head multiple

times with a pool stick.         On January 7, 2019, Appellant pled guilty to

aggravated assault in exchange for the Commonwealth dropping the

remaining charges.

        The trial court explained the subsequent procedural history as follows:

              On February 21, 2019, [Appellant] was sentenced to a
        minimum term of 40 months to a maximum term of 96 months
        incarceration at a state correctional institution followed by 24
        months of consecutive special probation. [Appellant] was also
        ordered to pay restitution. On March 4, 2019, [Appellant] filed a
____________________________________________


1   18 Pa.C.S. § 2702(a)(4).
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       Petition for Reconsideration of Sentence through defense counsel
       William Thompson, Esquire. Before [Appellant’s] Petition was
       decided by this court, Mark Mack, Esquire, entered his appearance
       for [Appellant] on March 19, 2019, and filed a Notice of Appeal on
       March 20, 2019. After being ordered to do so, [Appellant] filed a
       [Pa.R.A.P. 1925(b) statement] on April 14, 2019.              The
       Commonwealth filed a Response on May 6, 2019. [Appellant’s]
       Petition for Reconsideration of Sentence was denied by this court
       on May 7, 2019.

Trial Court Opinion, 5/21/19, at 1 (footnote omitted). On May 7, 2019, the

trial court entered an order denying Appellant’s post-sentence motion.

Thereafter, the trial court complied with Pa.R.A.P. 1925(a).2

       Appellant presents the following issue for our review:

       1. Did the lower court err in accepting the Appellant’s guilty plea
       that was not voluntarily, knowingly, and intelligently tendered?



____________________________________________


2We note that the instant appeal was filed prematurely while Appellant’s post-
sentence motion was pending before the trial court. “No direct appeal may
be taken by a defendant while his or her post-sentence motion is pending.”
Pa.R.Crim.P. 720, cmt. See Commonwealth v. Claffey, 80 A.3d 780, 783
(Pa. Super. 2013) (noting that appeal filed while timely post-sentence motions
were pending may be premature). The trial court denied Appellant’s post-
sentence motion after this appeal was filed.

       In similar cases, wel have addressed a premature appeal when “the
subsequent actions [of the] court fully ripened it.” Commonwealth v.
Cooper, 27 A.3d 994, 1004 (Pa. 2011). See also Commonwealth v. Little,
879 A.2d 293, 296 n.6 (Pa. Super. 2005) (permitting premature appeal of
petition for reconsideration when order denying petition was entered between
filing of notice of appeal and consideration by appellate court);
Commonwealth v. Hamaker, 541 A.2d 1141, 1142 n.4 (Pa. Super. 1988)
(permitting a premature appeal of post-trial motions and citing Pa.R.A.P. 905
(“A notice of appeal filed after the announcement of a determination but
before the entry of an appealable order shall be treated as filed after such
entry and on the day thereof.”)). Accordingly, we consider this appeal to be
timely.

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Appellant’s Brief at 4.

      In his sole issue, Appellant argues that his guilty plea should be

withdrawn because it was not knowingly, intelligently, and voluntarily entered.

Appellant’s Brief at 14-28. Appellant asserts that his guilty plea colloquy was

insufficient because it did not include the nature of the charge under the plea

agreement, the factual basis for the plea, and the permissible consequences

or sentence of the offense. Id. at 14.

      With respect to challenges to the validity of a guilty plea on direct

appeal, this Court has stated the following:

             Settled Pennsylvania law makes clear that by entering a
      guilty plea, the defendant waives his right to challenge on direct
      appeal all nonjurisdictional defects except the legality of the
      sentence and the validity of the plea.

            Indeed, a defendant routinely waives a plethora of
            constitutional rights by pleading guilty, including the
            right to a jury trial by his peers, the right to have the
            Commonwealth prove his guilt beyond a reasonable
            doubt, and his right to confront any witnesses against
            him. Furthermore, a defendant is permitted to waive
            fundamental constitutional protections in situations
            involving far less protection of the defendant than that
            presented herein.

      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. Failure to employ either measure
      results in waiver. Historically, Pennsylvania courts adhere to
      this waiver principle because it 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, 237
      Pa. Super. 336, 352 A.2d 140, 141 (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

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     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”).

           Likewise:

           Normally, issues not preserved in the trial court may
           not be pursued before this Court. Pa.R.A.P. 302(a).
           For example, 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. Similarly,
           challenges to a court’s sentencing discretion must be
           raised during sentencing or in a post-sentence motion
           in order for this Court to consider granting allowance
           of appeal. Moreover, for 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.

     Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008),
     appeal denied, 601 Pa. 696, 972 A.2d 521 (2009).

           Further, a defendant who attempts to withdraw a
           guilty plea after sentencing must demonstrate
           prejudice on the order of manifest injustice before
           withdrawal is justified. A plea rises to the level of
           manifest injustice when it was entered into
           involuntarily, unknowingly, or unintelligently.

Commonwealth v. Lincoln, 72 A.3d 606, 609-610 (Pa. Super. 2013) (some

citations and quotation marks omitted) (emphasis added).




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       Our review of the certified record reflects that Appellant did not preserve

his challenge to the voluntariness of his guilty plea by either objecting during

the plea colloquy or filing a timely post-sentence motion seeking to withdraw

the guilty plea.3 Pa.R.Crim.P. 720(B)(1)(a)(i). Accordingly, Appellant waived

any challenge to his guilty plea on direct appeal. Lincoln, 72 A.3d at 609-

610.

       Moreover, if we were to ignore the waiver of Appellant’s challenge to his

guilty plea, we would affirm on the basis of the trial court’s opinion addressing

the knowing, intelligent, and voluntary nature of Appellant’s plea. See Trial

Court Opinion, 5/21/19, at 2-4.

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/10/2020




____________________________________________


3 We note that, although Appellant filed a post-sentence motion, his claims
therein were limited to requests for reconsideration of his sentence. Post-
Sentence Motion, 3/4/19, at 1-3. Appellant did not seek permission to
withdraw his guilty plea.

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