J-S65018-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

LEROY CALBERT

                          Appellant                 No. 3485 EDA 2013


        Appeal from the Judgment of Sentence November 12, 2013
            In the Court of Common Pleas of Delaware County
           Criminal Division at No(s): CP-23-CR-0002065-2013
                         CP-23-CR-0005772-2013


BEFORE: PANELLA, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                       FILED NOVEMBER 25, 2014

     Appellant, Leroy Calbert, appeals from the judgment of sentence

entered on November 12, 2013. We affirm.

     The trial court ably summarized the facts underlying the current

appeal as follows:

        On February 27, 2013, at approximately 6:30 [a.m.],
        members of the Delaware County Drug Task Force[,] in
        possession of [a search warrant,] entered [Appellant’s]
        residence . . . and conducted a search [for] and seizure of
        controlled substances. [Appellant] was present during the
        search and was located lying in bed in the front[,] second
        floor bedroom. Recovered from the residence as a result of
        the search were: a scale with residue; [packaging] material
        with gloves and a razor; [one] empty pill bottle; several pill
        bottles containing a total of 243 assorted pills; 282 small
        plastic bags each containing crack cocaine; [four] large
        plastic bags each containing marijuana; [two] boxes of
        ammunition; a holster; a Ruger P95 [s]emi-automatic 9
        [millimeter handgun] loaded with [nine] rounds in the


*Retired Senior Judge assigned to the Superior Court.
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       magazine and [one] round in the chamber; a Rossi [.357]
       Magnum revolver loaded with [six] live rounds; a shoe box
       containing $128[.00] in [United States] currency; and[,]
       $473[.00] in [United States] currency from [Appellant’s]
       pocket.

       [Appellant] was arrested and charged[, at docket number
       2065 of 2013 (hereinafter “the 2065 case”),] with:
       possession of a controlled substance; [three counts of
       possession of a controlled substance with the] intent to
       distribute    [(“PWID”)];    use/possession       of    drug
       paraphernalia[;] possession of marijuana; possession of a
       firearm prohibited; firearms not to be carried without a
       license; and[,] making repairs, selling, etc. of an offensive
       weapon.

       On September 6, 2013, at approximately 3:50 [p.m.], a
       search warrant was served at 515 Chester Pike, Norwood,
       [Pennsylvania]. . . . Prior to entering the residence, officers
       stopped [Appellant] in a silver Ford Fiesta in a rear parking
       lot. As [the] officers stopped [Appellant,] he discarded
       numerous oxycodone hydrochloride pills. A brief struggle
       then ensued . . . [and the officers] plac[ed Appellant] in
       custody.     Officers searched [Appellant’s] vehicle and
       recovered a total of 132 oxycodone hydrochloride pills.
       Officers [] searched [Appellant] and recovered a clear
       plastic bag containing [seven] small bags of cocaine, several
       drug tally sheets, and $608[.00] in [United States]
       currency.    At approximately 3:53 [p.m.], the officers
       searched the residence of 515 Chester Pike. Seized from
       the residence were drug paraphernalia and several clear
       plastic bags containing cocaine residue. Seized from the
       residence during the search were: drug paraphernalia; 33.8
       grams of cocaine; 5.9 grams of marijuana; two plastic bags
       containing 891 oxycodone hydrochloride pills; several pill
       bottles containing 46 oxycodone hydrochloride pills; and
       [$3,644.00] in [United States] currency.

       [Appellant was arrested and charged, at docket number
       5772 of 2013 (hereinafter “the 5722 case”)], with: [three
       counts of] possession of a controlled substance; [two counts
       of PWID]; [three counts of] possession of drug
       paraphernalia; tampering with physical evidence; and
       resisting arrest.

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Trial Court Opinion, 7/1/14, at 1-2 (some internal capitalization omitted).

      Prior to trial, Appellant and the Commonwealth arrived at a negotiated

plea agreement. With respect to the 2065 case, Appellant agreed to plead

guilty to two counts of PWID, in exchange for the Commonwealth to

recommend the following sentence: a recommended sentence of 52 to 104

months in prison for the first PWID conviction and a recommended sentence

of 72 to 144 months in prison for the second PWID conviction, with the two

sentences at the 2065 case to run concurrently.         See N.T. Guilty Plea

Hearing, 11/12/13, at 3-4.

      With respect to the 5722 case, Appellant agreed to plead guilty to two

counts of PWID, in exchange for the Commonwealth to recommend the

following sentence: a recommended sentence of 48 to 96 months in prison

for the first PWID conviction and a recommended sentence of four years of

probation for the second PWID conviction, with the two sentences at the

5722 case to run consecutively. See id. at 7-8. The Commonwealth made

clear at the guilty plea colloquy, however, that the 5722 case “is consecutive

to all open cases.” Id. at 8.

      On November 12, 2013, Appellant entered his negotiated guilty pleas

in the trial court. During the guilty plea colloquy, the Commonwealth recited

the above-summarized, negotiated terms. With respect to the consecutive

nature of the sentences at the 2065 case and the 5772 case, the following

discussion occurred between the Commonwealth and Appellant’s attorney:




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        [The Commonwealth]: [The 5772 case] is consecutive to all
        open cases.

        [Appellant’s Attorney]:   I don’t think [Appellant] has any
        other open cases.

        [The Commonwealth]: Okay. Then the 2065 – at least to
        the 2065 [case].

Id.

      After conducting a colloquy, the trial court accepted Appellant’s guilty

pleas. That same day, the trial court sentenced Appellant in accordance with

the negotiated terms, including the term that “the sentence in [the 5722

case] shall run consecutive with the sentence in [the 2065 case].”     Id. at

28.   In relevant part, the trial court’s November 12, 2013 on-the-record

sentence reads:

        All right. With regard to [the 2065 case], Count 2, [PWID],
        an ungraded felony, cocaine, I sentence you to 52 to 104
        months SCI. With regard to Count 3, [PWID], ungraded
        felony, oxycodone, I sentence you to 72 to 144 months SCI,
        which shall run concurrent with Count 2. . . .

        With regard to [the 5772 case], Count 4, [PWID], an
        ungraded felony, cocaine, I sentence you to 48 to 96
        months SCI. . . . With regard to Count 5, [PWID], an
        ungraded felony, which is oxycodone, I sentence you to four
        years [of] probation to run consecutive with Count 4. . . .

        The sentence in [the 5722 case] shall run consecutive with
        the sentence [in the 2065 case].

Id. at 27-28 (some internal capitalization omitted).

      Appellant did not object to the above sentence and Appellant did not

seek to withdraw his guilty pleas following sentencing.




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     At the conclusion of the November 12, 2013 sentencing hearing,

Appellant was informed – on the record – that he had ten days to file a post-

sentence motion and 30 days to file a notice of appeal to the Superior Court.

Id. at 41.    Further, the trial court provided Appellant with a written

document entitled “Statement of Post-Sentence Rights.” Appellant initialed

every paragraph of the document and signed the document at the end. By

doing so, Appellant acknowledged such things as:

        By placing my initials on the line provided next to each of
        the paragraphs in this document, I agree that I have read,
        understand[,] and my lawyer has explained to my
        satisfaction the content and meaning of each paragraph.

                                     ...

        If I file a Post Sentence Motion with this Court, it must be in
        writing and be filed with the Delaware County Office of
        Judicial Support within 10 days of the date I am sentenced.

        This Post-Sentence Motion must state the specific relief
        requested, the specific issues to be considered and the
        specific reasons or grounds for the relief requested.

        If I pled guilty or nolo contendere, this Post-Sentence
        Motion may include: . . . a motion asking that the sentence
        imposed be changed; a motion asking that I be permitted to
        take back my plea(s) because it (they) was (were) not
        voluntary, knowingly[,] and intelligently entered; a motion
        challenging the denial of my motion to take back my
        plea(s).

                                     ...

        If I decide to file a Post-Sentence Motion and/or appeal to a
        higher court, I have the right to be represented by an
        attorney and if I cannot afford an attorney, upon my timely
        request to this Court, one will be provided to me free of


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         charge at no cost or expense to me and I will not be
         required to pay any costs normally associated with a Post-
         Sentence Motion and/or an appeal.

Appellant’s Statement of Post-Sentence Rights, 11/12/13, at 1-2.

       Finally, the trial court conducted an on-the-record colloquy of

Appellant, to ensure that Appellant’s trial counsel explained to Appellant –

and that Appellant understood – everything that was contained in the

written “Statement of Post-Sentence Rights.”           Specifically, Appellant

testified: that he had initialed every paragraph in the “Statement of Post-

Sentence Rights;” that he had signed the document at the end; that his

attorney had explained everything contained in the document; and, that he

did not have any questions regarding his post-sentence rights.            N.T.

Sentencing, 11/12/13, at 33-42.

       On December 5, 2013, Appellant filed three pro se documents:          a

notice of appeal to the Superior Court; a “motion for leave to file motion to

withdraw guilty plea out of time;” and, a “motion to withdraw guilty plea.” 1
____________________________________________


1
  Appellant is represented by new counsel on appeal; yet, the record does
not contain any order granting Appellant’s original trial counsel leave to
withdraw. See Pa.R.Crim.P. 120(B)(1) (“[c]ounsel for a defendant may not
withdraw his or her appearance except by leave of court”). Further, within
Appellant’s brief to this Court, Appellant does not explain what occurred to
his original trial counsel following the plea, or why Appellant acted in a pro
se capacity when he filed his December 5, 2013 notice of appeal and
motions. Moreover, we note that nothing in the record indicates that the
clerk of courts of Delaware County complied with Pennsylvania Rule of
Criminal Procedure 576(A)(4), which requires that, “[i]n any case in which a
defendant is represented by an attorney, if the defendant submits for filing a
written motion, notice, or document that has not been signed by the
defendant’s attorney, the clerk of courts shall accept it for filing . . . [and
(Footnote Continued Next Page)


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However, given that Appellant had filed a notice of appeal and given that

Appellant’s post-sentence motion was untimely by approximately 13 days,

the trial court did not rule upon Appellant’s post-sentence motion. See Trial

Court Opinion, 6/30/14, at 5.

      On January 16, 2014, Appellant filed a pro se “Request to Proceed In

Forma Pauperis for Purposes of Appeal and for Appointment of Counsel on

Appeal.” The trial court appointed counsel to represent Appellant on appeal

and counsel has filed a brief to this Court. Appellant now raises one claim

on appeal:

         The [trial c]ourt committed error by denying [Appellant’s]
         post-sentence motion to withdraw guilty plea on June 30,
         2014.[2]     [Appellant] contends that his guilty pleas of
         November 12, 2013 were not knowing, voluntary or
         intelligent, for the following reason[]:

                                            ...



                       _______________________
(Footnote Continued)

forward a copy of the document] to the defendant’s attorney. . . .”
Pa.R.Crim.P. 576(A)(4).
2
  Within Appellant’s brief to this Court, Appellant claims that “[t]he [trial
c]ourt committed error by denying [Appellant’s] post-sentence motion to
withdraw guilty plea on June 30, 2014.” Appellant’s Brief at 6 (emphasis
added). Appellant is incorrect to state that the trial court “denied” his post-
sentence motion. Rather, the trial court refused to consider Appellant’s
post-sentence motion, as Appellant had already filed a notice of appeal from
the judgment of sentence and the post-sentence motion was untimely. The
“June 30, 2014” date that Appellant references in his brief is merely the date
that the trial court filed its opinion pursuant to Pennsylvania Rule of
Appellate Procedure 1925(a). See Trial Court Opinion, 6/30/14, at 1-8.



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           Appellant contends that he was never adequately informed
           that his sentences in these two cases (incarcerations of six
           to [12] years and four to eight years[,] respectively) would
           run consecutively. Appellant insists that he was told that
           the sentences would run concurrently. He further contends
           that he would never have entered into these negotiated
           guilty pleas if he had known that the total period of
           incarceration was ten years at a minimum.

           Nowhere in this guilty plea colloquy before the [trial c]ourt[]
           was [Appellant] asked if he understood that the sentences
           in these two cases would run consecutively for a total of ten
           years[’] incarceration. The guilty plea colloquy transcript
           does not reflect that [] Appellant ever expressed his
           understanding and acceptance of [the] precise nature of the
           terms of incarceration.

Appellant’s Brief at 6.

         On appeal, Appellant claims that he should have been permitted to

withdraw his guilty plea, as “he was never adequately informed that his

sentences in these two cases . . . would run consecutively.”       Id. This claim

is waived, as Appellant failed to raise it in a timely manner before the trial

court.

         Under our rules and precedent, “[i]ssues not raised in the lower court

are waived and cannot be raised for the first time on appeal.”           Pa.R.A.P.

302(a). Therefore, to preserve a challenge to a guilty plea, the individual

must raise the issue prior to sentencing, at sentencing, or in a timely post-

sentence motion. Failing this, the challenge is waived. Commonwealth v.

Tareila, 895 A.2d 1266, 1270 n.3 (Pa. Super. 2006); Commonwealth v.

D’Collanfield, 805 A.2d 1244, 1246 (Pa. Super. 2002).




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      In the case at bar, Appellant failed to confront the trial court with any

challenge to his guilty plea during the sentencing hearing.            Further,

Appellant’s attempt to raise the claim in his post-sentence motion failed, as

Appellant had already filed a notice of appeal from his judgment of sentence

and the post-sentence motion was untimely by approximately 13 days. As a

result, the trial court refused to address the post-sentence motion on the

merits. See Pa.R.A.P. 1701(a) (“after an appeal is taken . . . , the trial court

. . . may no longer proceed further in the matter”); 42 Pa.C.S.A. § 5505 (“a

court upon notice to the parties may modify or rescind any order within 30

days after its entry, notwithstanding the prior termination of any term of

court, if no appeal from such order has been taken or allowed”);

Pa.R.Crim.P. 720(a)(1) (“a written post-sentence motion shall be filed no

later than 10 days after imposition of sentence”); Commonwealth v.

Dreves, 839 A.2d 1122, 1128 (Pa. Super. 2003) (en banc) (“under 42

Pa.C.S.A. § 5505, if no appeal ha[s] been taken, within 30 days after the

imposition of sentence, the trial court has the discretion to grant a request

to file a post-sentence motion nunc pro tunc”); Commonwealth v. Moore,

978 A.2d 988, 991 (Pa. Super. 2009) (“[t]o be entitled to file a post-

sentence motion nunc pro tunc, a defendant must, within 30 days after the

imposition of sentence, demonstrate sufficient cause, i.e., reasons that

excuse the late filing.   When the defendant has met this burden and has

shown sufficient cause, the trial court must then exercise its discretion in


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deciding whether to permit the defendant to file the post-sentence motion

nunc pro tunc”) (internal quotations, citations, and corrections omitted); see

also Commonwealth v. Cooper, 27 A.3d 994, 1007 (Pa. 2011) (pro se

filings by represented defendants may have legal effect and are not “legal

nullities”).

       Appellant’s claim on appeal is thus waived.

       Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/25/2014




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