J-S94021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    JAMES E. TOLLEY                            :
                                               :
                      Appellant                :   No. 373 MDA 2016

            Appeal from the Judgment of Sentence January 28, 2016
                 In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0003760-2015


BEFORE:      LAZARUS, J., RANSOM, J., and FITZGERALD, J. *

MEMORANDUM BY RANSOM, J.:                                 FILED APRIL 17, 2017

        Appellant James E. Tolley appeals from the judgment of sentence of

eighteen months to five years of incarceration plus $13,990.42 in restitution,

imposed January 28, 2016, following an open guilty plea to aggravated

assault by a motor vehicle while driving under the influence (DUI) and DUI –

high rate of alcohol.1 We affirm.

        The relevant facts and procedural history are as follows. Around 7:30

a.m. on March 3, 2015, Appellant operated a motor vehicle and caused

serious bodily injury to another person.           See Notes of Testimony (N.T.),

12/7/2015, at 5.       Appellant’s blood alcohol content was .109 within two




____________________________________________


1
    75 Pa.C.S. § 3735.1(a), § 3802(b), respectively.


*
    Former Justice specially assigned to the Superior Court.
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hours of driving. See N.T., 12/7/2015, at 4. In December 2015, Appellant

entered an open guilty plea to the aforementioned charges. Id.

     During Appellant’s plea colloquy, the court explained the statutory

maximum sentence for each offense.           See N.T., 12/7/2016, at 9-10.

However, the court misstated the maximum sentence for aggravated assault

by motor vehicle:

     COURT:         The felony of the second-degree, aggravated assault
                    [by] motor vehicle, a [statutory] maximum of seven
                    years. Do you understand that?

     APPELLANT: Yes, sir.

     COURT:         And a $25,000 fine. The most you could get in this
                    case is five-and-a-half years. Okay?

     APPELLANT: Yes, sir.

     COURT:         This is an open plea. That means it is up to me what
                    is going to happen entirely. Anybody promise you
                    anything for your plea?

     APPELLANT: No, sir.

     COURT:         Do you have any expectations as to what is going to
                    occur?

     APPELLANT: No, sir.

Id. at 9-10. During the Colloquy, Appellant was advised on the record of his

right to file an appeal.    Id. at 12.   He also confirmed that his plea was

voluntary, that he had adequate opportunity to speak with his lawyer, and

that his lawyer explained the potential consequences of his open plea. Id.




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at 12-14. Appellant was also advised of his rights regarding withdrawing his

guilty plea. Id. at 13.

       Appellant was sentenced in the aggregate as described above on

January 28, 2016.2       Appellant failed to timely file a post-sentence motion.

On February 24, 2016, Appellant, through appellate counsel, filed a petition

to file a post-sentence motion nunc pro tunc along with a motion seeking

bail pending appeal.        His petition proposed that a post-sentence motion

could assert the following claims: (1) the trial court failed to advise Appellant

of his appellate rights at sentencing and (2) ineffective assistance of plea

counsel.     See Petition to File Post-Sentence Motion, 2/24/2016 at 4-5.

Appellant timely filed a notice of appeal on February 29, 2016.

       In March 2016, Appellant timely filed a court-ordered 1925(b)

statement asserting 1) the court abused its discretion in accepting his

unknowing, involuntary, and unintelligent plea and 2) ineffectiveness of the

court and trial counsel in failing to advise him of his post-sentence and

appellate rights. See 1925(b) Statement, 3/21/2016, 2-3. In April 2016,

the court ordered a hearing on both the petition to file a post-sentence

motion nunc pro tunc and motion seeking bail pending appeal. See Order,

4/14/2016. The court also issued a responsive 1925(a) opinion suggesting
____________________________________________


2
  Appellant was sentenced to eighteen months to five years of incarceration
plus $13,990.42 in restitution for aggravated assault by a motor vehicle
while driving under the influence (DUI) to run concurrently with a sentence
of thirty days to six months of incarceration for DUI – high rate of alcohol.



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this Court to take no action pending the outcome of the June 2016 hearing;

the opinion lacks an analysis of Appellant’s claims. Trial Ct. Op., 4/28/2016,

at 2.

        Following a hearing held in June 2016, the court denied Appellant’s

petition to file a post-sentence motion for lack of jurisdiction.    See N.T.,

6/29/2016, at 2.     However, the court granted Appellant’s request for bail

pending the outcome of this appeal. See id. at 5.

        On appeal, Appellant presents the following issue:

        Whether Appellant’s plea was knowing, voluntary and intelligent
        where he was improperly advised of the maximum sentence for
        aggravated assault while DUI and the maximum consecutive
        sentence for aggravated assault while DUI and DUI.

Appellant's Br. at 6.

        Appellant challenges the validity of his plea. Our standard of review is

as follows.

            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. Commonwealth v. Pantalion, 957
        A.2d 1267, 1271 (Pa. Super. 2008). . . . . 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. Pa.R.Crim.P.
        720(A)(1), (B)(1)(a)(i).     Failure to employ either measure
        results in waiver. Commonwealth v. Tareila, 895 A.2d 1266,
        1270 n. 3 (Pa. Super. 2006).

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

        Appellant concedes that he failed to timely file a post-sentence motion

challenging the validity of his guilty plea.      See Pa.R.Crim.P. 720(A)(1)

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J-S94021-16


(requiring    a   post-sentence       motion     to   be   filed   within   ten   days).

Notwithstanding, Appellant contends that this Court may review his claim

because he timely filed a notice of appeal. Appellant is incorrect.

          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, 972 A.2d 521 (Pa. 2009).

       Here, Appellant did not make a timely objection during the plea

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

to preserve his claim for review. See Lincoln, 72 A.3d at 611; Rush, 959

A.2d at 949; Pa.R.Crim.P. 720(A)(1). Therefore, we deem Appellant’s sole

issue waived.3

____________________________________________


3
 Absent waiver, Appellant’s claim is devoid of merit and warrants no relief.
The court wrongly suggested to Appellant that the maximum penalty for
aggravated assault was seven years. Rather, as a felony of the second
degree, the maximum penalty was ten years. 18 Pa.C.S. § 1103(2).
(Footnote Continued Next Page)


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      Judgement of sentence affirmed.

      Judge Lazarus joins.

      Judge Fitzgerald concurs in result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/2017




                       _______________________
(Footnote Continued)

Nevertheless, the court imposed a total, aggregate sentence of five years.
The sentence imposed did not exceed Appellant’s expectations. Therefore,
the court’s error was not prejudicial “on the order of manifest injustice.”
Commonwealth v. Carter, 656 A.2d 463, 466 (Pa. 1995).



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