J-S86022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

KAYLA SHANIYAH SMITH

                            Appellant                   No. 457 WDA 2016


            Appeal from the Judgment of Sentence February 29, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0009206-2016


BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY MOULTON, J.:                         FILED FEBRUARY 07, 2017

       Kayla Shaniyah Smith appeals from the February 29, 2016 judgment

of sentence entered in the Allegheny County Court of Common Pleas

following Smith’s entry of a guilty plea to prostitution, 18 Pa.C.S.

§ 5902(a)(1). We affirm.

       On February 29, 2016, following both written and oral colloquies,

Smith pled guilty to one count of prostitution and was sentenced to one year

of reporting probation. She did not file post-sentence motions. On March

30, 2016, Smith filed a timely notice of appeal with this Court. On April 25,

2016, Smith filed a Pennsylvania Rule of Appellate Procedure 1925(b)



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       *
           Former Justice specially assigned to the Superior Court.
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concise statement of errors on appeal and a motion to withdraw her guilty

plea in the trial court.

      On appeal, Smith asserts that: (1) her guilty plea was not knowing,

intelligent, and voluntary; (2) the trial court erred in denying her motion for

a continuance of trial; and (3) the trial court pressured her to plead guilty by

threatening to revoke her bond if she proceeded to trial.

      It is well settled that “[i]ssues not raised in the [trial] court are waived

and cannot be raised for the first time on appeal.”        Pa.R.A.P. 302(a).    To

preserve a challenge to his or her guilty plea, the defendant must either

object during the plea colloquy or raise the claim in a timely filed post-

sentence motion.       Commonwealth v. Lincoln, 72 A.3d 606, 609-10

(Pa.Super. 2013); see also Commonwealth v. Rush, 959 A.2d 945, 949

(Pa.Super. 2008) (“[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.”).

      Here, Smith did not raise a concern about the voluntariness of her plea

at the plea proceeding or in a timely filed post-sentence motion.        Further,

the trial court lacked jurisdiction to consider Smith’s motion to withdraw

guilty plea because she filed it well beyond the ten-day period for filing post-

sentence motions and after she had appealed to this Court.                     See

Pa.R.Crim.P. 720(A)(1) (requiring written post-sentence motions to be filed

within 10 days after imposition of sentence); Pa.R.A.P. 1701(a) (“[A]fter an

appeal is taken . . ., the trial court . . . may no longer proceed further in the

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matter.”); see also 42 Pa.C.S. § 5505 (permitting trial court to modify or

rescind order within 30 days only “if no appeal from such order has been

taken”).1 Therefore, Smith has waived her challenges to the validity of her

plea. See Lincoln, 72 A.3d at 611.

        We also reject Smith’s claim that the trial court erred in denying her

request for continuance of the trial. The trial court had scheduled a non-jury

trial for February 29, 2016.2          When the parties convened on that date,

Smith’s counsel informed the trial court that Smith had changed her mind

and wanted a jury trial. N.T., 2/29/16, at 2-3. The trial court stated, “Your

bond is revoked.        Take her into custody.      We’ll sign your request for

postponement, and we will schedule this [trial] in about three months.” Id.

at 4.

        Subsequently, after a recess, Smith’s counsel informed the trial court

that she had negotiated a plea agreement with the Commonwealth. Id. at

16-17. The trial court conducted an on-the record colloquy with Smith, after

which it accepted her guilty plea. Id. at 19-23. Smith did not request any

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        1
        We recognize that Rule 720(B)(1)(c) provides that “[i]ssues raised
before or during trial shall be deemed preserved for appeal whether or not
the defendant elects to file a post-sentence motion on those issues.”
Pa.R.Crim.P. 720(B)(1)(c). Smith, however, failed to challenge the validity
of her plea in the trial court at any time before filing her Rule 1925(b)
statement and untimely motion to withdraw.
        2
        The trial court had initially scheduled the trial for January but
continued it to February at Smith’s request. N.T., 2/29/16, at 2.



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further continuance. Therefore, Smith’s request to postpone the trial, which

the trial court was prepared to grant, became moot once she entered a

guilty plea.3

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/7/2017




____________________________________________


       3
           The trial court further clarified:

            While this Court did note at one point on February 29,
            2016 that it would sign a motion for postponement, this
            Court made that comment because it was under the
            impression that such a motion was going to be filed by
            [Smith]. However, this Court was never in a position to
            rule on a motion to postpone this case because no such
            motion was ever filed.    Accordingly, because no such
            motion was filed, this Court could not have erred in
            denying it.

Trial Ct. Op., 6/22/16, at 3. We agree.



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