J-A26039-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                   v.

JAMESON BRADLEY FITZGERALD

                        Appellant                    No. 2074 MDA 2013


         Appeal from the Judgment of Sentence November 5, 2013
             In the Court of Common Pleas of Franklin County
           Criminal Division at No(s): CP-28-CR-0002089-2013


BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                      FILED NOVEMBER 12, 2014


      In this direct appeal, Jameson Fitzgerald attempts to challenge a guilty

plea that he entered to retail theft. We conclude that Fitzgerald has waived

his right to challenge his guilty plea by (1) failing to make any challenge

during his guilty plea hearing and then (2) withdrawing his post-sentence

motions before the trial court ruled on them.   Accordingly, we affirm.


      Fitzgerald was charged with ten counts of retail theft and one charge

of possession of a controlled substance and drug paraphernalia.            On

November 5, 2013, he waived his preliminary hearing on all charges and

pled guilty to one count of retail theft. All other charges were dismissed. He

made no objections of any kind during his guilty plea hearing.
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      On November 15, 2013, defendant filed post-sentence motions

seeking leave to withdraw his guilty plea on three grounds: first, his plea

was not knowing or intelligent; second, the “Early Accountability Program”

(“EAP”) under which he entered his plea precluded his right to meaningful

constitutional representation; and third, the EAP operates under rules of

criminal procedure that are not authorized by the Pennsylvania Supreme

Court.


      On November 20, 2013, Fitzgerald filed a praecipe to withdraw his

post-sentence motions.         On the same date, he appealed his judgment of

sentence to this Court.


      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).

Pennsylvania courts enforce this principle because “[i]t 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, 352 A.2d

140, 141 (Pa.Super.1975) (tactic of attacking guilty plea on direct appeal

without first filing petition to withdraw plea in trial court constitutes waiver,

because “(t)he swift and orderly administration of criminal justice requires

that lower courts be given the opportunity to rectify their errors before they

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are considered on appeal,” and “strict adherence to this procedure could,

indeed, preclude an otherwise costly, time consuming, and unnecessary

appeal to this court”). See also Commonwealth v. Lincoln, 72 A.3d 606

(Pa.Super.2013) (collecting cases and affirming judgment of sentence due to

appellant’s failure to file post-sentence motions challenging voluntariness of

guilty plea and failure to object to guilty plea during guilty plea hearing).


      In view of these decisions, we consider the technique of filing a motion

to withdraw a guilty plea but then withdrawing the motion several days later

tantamount to filing no motion at all, because the withdrawal of the motion

deprives the trial court of any opportunity to rectify its alleged errors before

an appeal. For this reason, we hold that Fitzgerald has waived his challenge

to his guilty plea.


      Fitzgerald attempts to evade waiver by arguing that his challenge to

his guilty plea involves a non-waivable jurisdictional defect.      He contends

that the trial court’s failure to obtain the Supreme Court’s approval of local

rules underlying the EAP program deprives the trial court of jurisdiction to

impose EAP sentences or accept EAP guilty pleas.          Procedural intricacies

such as these do not amount to jurisdictional defects. The trial court clearly

had jurisdiction to adjudicate retail theft and drug possession charges. The

question whether the court used the wrong procedural mechanism to

address these charges does not amount to a jurisdictional defect.               Cf.

Commonwealth v. Hatchin, 709 A.2d 405 (Pa.Super.1997) (filing a

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criminal complaint    instead of an information does not constitute          a

jurisdictional defect that deprives the court of jurisdiction over defendant).

Since the error in question is not a jurisdictional defect, Fitzgerald had the

duty to either object during his guilty plea hearing to the EAP program or file

and prosecute a motion to withdraw his guilty plea after his sentence. By

filing a motion to withdraw his plea but then withdrawing it a few days later,

he waived his challenge to EAP procedures.


      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/12/2014




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