J-S32001-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

LUCHO HUMBERTO YOUNGS,

                        Appellant                  No. 1959 EDA 2015


            Appeal from the Judgment of Sentence June 2, 2015
           In the Court of Common Pleas of Montgomery County
            Criminal Division at No(s): CP-46-CR-0000291-2015


BEFORE: BOWES, MUNDY AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                             FILED May 11, 2016

     Lucho Humberto Youngs appeals from the judgment of sentence of one

to twenty-three months in jail followed by two years probation.        The

sentence was imposed after Appellant tendered a negotiated guilty plea to

retail theft graded as a first-degree misdemeanor. We affirm.

     Appellant was charged in this action with retail theft, conspiracy to

commit retail theft, and criminal mischief. The affidavit of probable cause

indicates the following.   Just before midnight on September 17, 2014,

eyewitness Tameeka Pittman was present in the parking lot of the Walmart

store on 275 N. Gulph Road, King of Prussia, Upper Merion Township. She

observed Appellant and Major Fleming, II, take bolt cutters, cut a lock

securing an orange snow blower located in front of the Walmart, and load


* Retired Senior Judge assigned to the Superior Court.
J-S32001-16



the snow blower into a silver GMC Sierra pick-up truck with a Maryland

license plate.    Ms. Pittman immediately notified Upper Merion Township

police, gave a description of the perpetrators and the truck, and reported the

direction that the vehicle proceeded when it turned onto North Gulph Road.

       Seventeen minutes after Ms. Pittman telephoned police, they stopped

Appellant and Fleming on North Gulph Road in the described vehicle, which

had an orange Yard Machines snow blower in the back and a set of orange

bolt cutters on the floor.      Ms. Pittman was driven to the scene, and she

identified Appellant and Fleming as the perpetrators of the theft of the snow

blower, which had a retail value of $598.

       On June 2, 2015, Appellant, with the assistance of privately-retained

counsel, Jeremy Z. Mittman, Esquire, entered a negotiated guilty plea to one

count of retail theft graded as a first-degree misdemeanor and the two other

offenses were withdrawn. The negotiated sentence was “not less than one

nor more than twenty-three months in Montgomery County [jail,] . . . and

two-year consecutive probation.”       N.T. Guilty Plea, 6/2/15, at 3.       After a

written colloquy was completed and an oral colloquy was conducted, the

court accepted the guilty plea and imposed the negotiated sentence.

       On June 10, 2015, Mr. Mittman filed a motion to withdraw the guilty

plea   raising   the   single   contention   that   Appellant’s   guilty   plea   was

unknowingly entered because he was “unaware that his plea would result in

the aggregate of 4[7] months of supervision.” Motion to Withdraw, 6/10/15,

                                       -2-
J-S32001-16



at ¶ 3.    Appellant claimed to have “misunderstood the exact amount of

supervision he would be subjected to as a result of such plea.” Id. at 5.

       On June 23, 2015, the court denied the motion to withdraw the guilty

plea.1 Notice of denial of the motion to withdraw the plea was sent to Mr.

Mittman. Appellant filed a pro se appeal on June 26, 2015. He additionally

presented a pro se motion to proceed in forma pauperis and a pro se motion

to stay his sentence pending appeal. The latter two motions were denied;

the trial court indicated that the motion to proceed in forma pauperis was

denied because Appellant had employment income. On June 30, 2015, the

trial court ordered the filing of a Pa.R.A.P. 1925(b) statement.            Since

Appellant had requested to proceed in forma pauperis, the order to file a

Pa.R.A.P. 1925(b) statement was forwarded to the public defender’s office.

       On July 20, 2015, Raymond D. Roberts of the Montgomery County

Public Defender’s Office requested an extension of time to file a Pa.R.A.P.

1925(b) statement. Therein, Mr. Roberts noted the following. Appellant had

sent the public defender’s office a letter stating that he was not employed

but actually was a college student.              The public defender asked for an

extension due to the uncertain status of Appellant’s qualification for

appointed counsel and whether Appellant would need to be colloquied so he
____________________________________________


1
  Appellant represents that a truncated hearing occurred on the motion, but
the notes of testimony of that proceeding are not contained in the certified
record.



                                           -3-
J-S32001-16



could proceed pro se. Mr. Roberts also noted that he had not yet received

the transcript of the guilty plea. The court denied the motion to extend the

filing date of the Pa.R.A.P. 1925(b) statement.

      On appeal, Appellant raises these contentions: “1. The trial court erred

in denying Appellant’s petition to withdraw his guilty plea. 2. The trial court

erred in denying Appellant’s request for an extension of time in which to file

the concise statement.” Appellant’s brief at 7.

      We address the issues in reverse order since the first averment would

be considered waived if the second contention lacks merit.           Pa.R.A.P.

1925(b)(2) (emphases added) expressly states,

             Upon application of the appellant and for good cause
      shown, the judge may enlarge the time period initially specified
      or permit an amended or supplemental Statement to be filed.
      Good cause includes, but is not limited to, delay in the
      production of a transcript necessary to develop the
      Statement so long as the delay is not attributable to a lack of
      diligence in ordering or paying for such transcript by the party or
      counsel on appeal.

Additionally, the comment to Pa.R.A.P. 1925(b)(2) provides, “A trial court

should enlarge the time or allow for an amended or supplemental Statement

when new counsel is retained or appointed.”

      In the present case, the extension was requested by a new lawyer,

who was from the public defender’s office and who was attempting to

ascertain whether Appellant qualified for appointed counsel.      Additionally,

that attorney, as part of his request for an extension, noted that he had not



                                     -4-
J-S32001-16



reviewed the guilty plea colloquy, which was not available.           Hence, we

conclude that, under the express language of Pa.R.A.P. 1925(b)(2) and the

comment thereto, an extension of time to file the statement should have

been granted both based due to the entry of the appearance of a new

lawyer, who did not have the plea transcript.2 We refuse to find waiver of

the issue presented on appeal due to Appellant’s failure to file a Pa.R.A.P.

1925(b) statement.3



____________________________________________


2
   The court herein justified its refusal to allow the enlargement of time to file
the Pa.R.A.P. 1925(b) statement on the ground that Mr. Robert’s motion was
premised upon the mistaken belief that the motion to withdraw the guilty
plea was not resolved. We disagree. The thrust of the request for more
time was based upon Mr. Robert’s need to resolve the question of whether
Appellant was entitled to appointed counsel as well as the fact that Mr.
Roberts did not have the guilty plea transcript.             The motion merely
mentioned that the motion to withdraw the guilty plea had not been
resolved. Mr. Roberts, in his appellate brief, explains this misstatement. He
had printed a copy of the docket sheet in this criminal matter on July 2,
2015. The July 2, 2015 docket sheet, a copy of which is appended to the
brief, does not contain any docket entry for June 23, 2013. It shows the
filing of a motion to withdraw and then of a notice of appeal on June 26,
2013. Thus, Mr. Roberts did not intentionally misstate the procedural
posture of this case.
3
  It is unnecessary for us to remand for the filing of an opinion under
Pa.R.A.P. 1925(a) in that, although it found waiver, the trial court addressed
the merits of the question of whether Appellant was entitled to withdraw his
guilty plea. Cf. Commonwealth v. Thompson, 39 A.3d 335 (Pa.Super.
2012) (finding counsel ineffective per se for not filing a Pa.R.A.P. 1925(b)
statement, allowing the filing of the statement nunc pro tunc, and ordering
the court to file an opinion in support of its rulings).




                                           -5-
J-S32001-16



      We now address Appellant’s first issue, whether he should have been

permitted to withdraw his guilty plea.     A trial court’s decision to deny a

defendant’s motion to withdraw his guilty plea is subject to an abuse-of-

discretion standard of review. Commonwealth v. Broaden, 980 A.2d 124

(Pa.Super. 2009).    In order to withdraw a guilty plea after sentence is

imposed, “A defendant must demonstrate that manifest injustice would

result if the court were to deny his post-sentence motion to withdraw a

guilty plea.” Id. at 129. Manifest injustice is present when “the plea was

not tendered knowingly, intelligently, and voluntarily.” Id. (citation omitted).

When we determine if a guilty plea is valid, we must “examine the totality of

circumstances surrounding the plea.” Id. (citation omitted).

      Initially, we note that there is only one challenge to the guilty plea

preserved for purposes of this appeal. As we stated in Commonwealth v.

Tareila, 895 A.2d 1266, 1270 n.3 (Pa.Super. 2006) (citation omitted): “In

order to preserve an issue related to the guilty plea, an appellant must

either object at the . . . colloquy or otherwise raise the issue at the

sentencing hearing or through a post-sentence motion.”              Herein, no

objection appears in the colloquy, and Appellant’s post-sentence motion to

withdraw the plea raised a single claim, which was that his guilty plea was

unknowing and involuntary in that he was unaware that he would be subject

to supervision for forty-seven months when he tendered it.




                                     -6-
J-S32001-16



     As noted by the trial court, the record belies this assertion.   At the

beginning of the plea proceeding, the Commonwealth delineated the terms

of the agreement on the record: “[Appellant] will plead guilty to count one,

retail theft, graded as an M-1. We have a negotiated sentence of not less

than one nor more than 23 months in Montgomery County.             He'll turn

himself in on July 2, 2015, at 9:00 a.m., and two-year consecutive

probation.” N.T. Guilty Plea, 6/2/15, at 3.   As of the date of entry of the

plea, Appellant was fifty-five years old, had graduated from high school, and

understood English.   Id. at 4.   He was told and thus understood that he

would be in jail from one to twenty-three months and that he would be

subject to two years probation consecutive to the term of imprisonment.

Accordingly, Appellant knew that he would be under supervision for forty-

seven months.

     On appeal, Appellant raises various complaints relating to Mr. Mittman

representation during the guilty plea process.   As noted, these averments

are waived. Moreover, our Supreme Court announced in Commonwealth

v. Grant, 813 A.2d 726 (2002), that allegations of ineffective assistance of

counsel will no longer be entertained on direct appeal. Rather, such claims

are to be pursued pursuant to the provisions of the Post-Conviction Relief

Act, 42 Pa.C.S. §§ 9541, et seq.     Our Supreme Court more recently re-

affirmed that “Grant's general rule of deferral to PCRA review remains the

pertinent law on the appropriate timing for review of claims of ineffective

                                    -7-
J-S32001-16



assistance of counsel[.]”   Commonwealth v. Holmes, 79 A.3d 562, 563

(Pa. 2013). There are two exceptions to Grant, as outlined in Holmes, but

neither of those exceptions applies herein.      Accordingly, Appellant’s

challenges to the validity of his guilty plea that relate to whether Mr.

Mittman provided ineffective assistance in connection with its entry are

deferred to collateral review.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/11/2016




                                   -8-
