J-S33041-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES WISE                                 :
                                               :
                       Appellant               :   No. 2971 EDA 2019

      Appeal from the Judgment of Sentence Entered September 10, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0006968-2018


BEFORE:      DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                            Filed: July 30, 2020

        Appellant James Wise appeals the judgment of sentence entered by the

Court of Common Pleas of Philadelphia County after Appellant pled guilty to

Attempted Murder, Aggravated Assault, and Carrying a Firearm Without a

License.1 Appellant claims the trial court erred in refusing to grant his post-

sentence motion to withdraw his guilty plea. We affirm.

        Appellant was arrested and charged with multiple offenses in connection

with the September 18, 2016 shooting of four individuals in the parking lot of

a night club on Castor Avenue in Philadelphia. Two of the victims sustained

serious bodily injury and required extensive medical care.

        On September 10, 2019, Appellant entered a negotiated guilty plea to

two counts each of Attempted Murder and Aggravated Assault as well as one
____________________________________________


*   Former Justice specially assigned to the Superior Court.
1   18 Pa.C.S.A. § 901, 2701, and 6106, respectively.
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count of Carrying a Firearm Without a License. In exchange for this plea, the

Commonwealth agreed to recommend that the trial court sentence Appellant

to an aggregate term of 12½ to 25 years’ imprisonment and to drop the

remaining charges. After Appellant completed both oral and written colloquies

reflecting that he understood and agreed to the plea agreement, the trial court

sentenced Appellant according to the terms of parties’ agreement.

      On September 18, 2019, Appellant filed a post-sentence motion, asking

the trial court to allow him to withdraw his guilty plea on the basis that his

“his guilty plea was the product of duress and undue coercion.” Post-Sentence

Motion, 9/18/19, at 1. On September 20, 2019, the trial court denied this

motion. On October 10, 2019, Appellant filed this appeal and subsequently

complied with the trial court’s direction to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).

      Appellant raises the following issues for our review on appeal:

      I.      Whether the trial court erred in not allowing Appellant to
              withdraw his guilty plea where he was not informed
              adequately of the nature of the charges pending against him
              during the lower[] court’s colloquy?

      II.     Whether the trial court erred in not allowing Appellant to
              withdraw his guilty plea where the circumstances of
              Appellant’s plea warranted the pre-sentence standard for
              withdrawing a guilty plea?

Appellant’s Brief, at 5.

      In reviewing Appellant’s claim that the trial court erred in refusing to

allow him to withdraw his guilty plea, we are guided by the following

principles:

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            It is well-settled that the decision whether to permit a
     defendant to withdraw a guilty plea is within the sound discretion
     of the trial court. Commonwealth v. Unangst, 71 A.3d 1017,
     1019      (Pa.   Super.    2013)     (quotation    omitted);     see
     Commonwealth v. Broaden, 980 A.2d 124, 128 (Pa. Super.
     2009) (noting that we review a trial court's order denying a motion
     to withdraw a guilty plea for an abuse of discretion), appeal
     denied, 606 Pa. 644, 992 A.2d 885 (2010). Although no absolute
     right to withdraw a guilty plea exists in Pennsylvania, the standard
     applied differs depending on whether the defendant seeks to
     withdraw the plea before or after sentencing. When a defendant
     seeks to withdraw a plea after sentencing, he “must demonstrate
     prejudice on the order of manifest injustice.” Commonwealth v.
     Yeomans, 24 A.3d 1044, 1046 (Pa. Super. 2011). In
     Commonwealth v. Prendes, 97 A.3d 337, 352 (Pa. Super.
     2014), impliedly overruled on other grounds by
     Commonwealth v. Hvizda, 632 Pa. 3, 116 A.3d 1103, 1106
     (2015), we explained that a defendant may withdraw his guilty
     plea after sentencing “only where necessary to correct manifest
     injustice.” Prendes, 97 A.3d at 352 (citation omitted). Thus,
     “post-sentence motions for withdrawal are subject to higher
     scrutiny since the courts strive to discourage the entry of guilty
     pleas as sentence-testing devices.” Commonwealth v. Flick,
     802 A.2d 620, 623 (Pa. Super. 2002).

           “Manifest injustice occurs when the plea is not tendered
     knowingly, intelligently, voluntarily, and understandingly.”
     Commonwealth v. Kpou, 153 A.3d 1020, 1023 (Pa. Super.
     2016) (citation omitted). In determining whether a plea is valid,
     the court must examine the totality of circumstances *665
     surrounding the plea. Id. “Pennsylvania law presumes a
     defendant who entered a guilty plea was aware of what he was
     doing, and the defendant bears the burden of proving otherwise.”
     Id.

Commonwealth v. Hart, 174 A.3d 660, 664–65 (Pa.Super. 2017).

     We are also mindful that:

     [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

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     1266, 1270 n. 3 (Pa.Super.2006). Historically, Pennsylvania
     courts adhere to this waiver 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, 237 Pa.Super. 336, 352 A.2d 140,
     141 (1975) (holding that common and previously condoned
     mistake of attacking guilty plea on direct appeal without first filing
     petition to withdraw plea with trial court is procedural error
     resulting in waiver; stating, “(t)he swift and orderly administration
     of criminal justice requires that lower courts be given the
     opportunity to rectify their errors before they are considered on
     appeal”; “Strict adherence to this procedure could, indeed,
     preclude an otherwise costly, time consuming, and unnecessary
     appeal to this court”).

     Likewise:

        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, 601 Pa. 696, 972 A.2d 521 (2009).

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

     In this case, Appellant initially argued in his post-sentence motion that

he should be allowed to withdraw his guilty plea, which was the “product of

duress and undue coercion.” Post-Sentence Motion, 9/18/19, at 1. The trial

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court denied Appellant’s motion without a hearing, finding there was no

evidence to support Appellant’s bald claim of duress and coercion.

     On appeal, Appellant does not argue that he was coerced into entering

his plea, but alleges for the first time that he was not adequately advised of

the charges filed against him and the penalties he faced for each charge. As

this legal theory was not raised before the trial court in Appellant’s post-

sentence motion and the trial court had no opportunity to address this claim

of error, Appellant has not properly preserved this argument for our review.

     Accordingly, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/30/20




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