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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                    v.                    :
                                          :
RYAN SANDERS,                             :         No. 802 WDA 2014
                                          :
                         Appellant        :


          Appeal from the Judgment of Sentence, March 24, 2014,
            in the Court of Common Pleas of Allegheny County
             Criminal Division at No. CP-02-CR-0012103-2012


BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 18, 2015

      Ryan Sanders appeals from the judgment of sentence of March 24,

2014, following his conviction of firearms offenses and various summary

traffic offenses.   On appeal, appellant challenges the validity of his guilty

plea. After careful review, we affirm.

      The factual basis for appellant’s plea was set forth at the plea hearing

by assistant district attorney Kristen Pauli:

            If the Commonwealth would have gone to trial in this
            matter, we would have called Officers Zuber and
            Goughner of the McKeesport Police Department, as
            well as Detective Gold and representatives from the
            Allegheny County Medical Examiner’s Office. They
            would collectively testify on or about September 4,
            2012, in Allegheny County, the officers observed
            [appellant] speeding. They attempted to pulled [sic]
            him over. He had gone through some traffic signal
            devices at that time. When they did pull him over,
            Officer Goughner observed him take a gun from his


* Retired Senior Judge assigned to the Superior Court.
J. S40007/15


            waistband and put it on the floor board underneath
            him while in the car. Nobody else was in the car
            with him.       [Appellant]’s driver’s license was
            suspended. He did not have a valid license to carry
            a concealed weapon. He does have prior felony
            convictions, three of them gun cases, which makes
            him a person not to possess a firearm. The gun was
            submitted to the Allegheny County Medical
            Examiner’s Office at Lab Number 12LAB08499. It
            was found to be in good operating condition and it
            had a barrel length of 2 and 7/16 inches.

Notes of testimony, 3/24/14 at 7-8.

      Appellant pled guilty to one count each of persons not to possess

firearms, a second-degree felony, and possession of a firearm without a

license, a third-degree felony.    In addition, appellant pled guilty to the

summary offenses of exceeding the speed limit, failing to obey traffic

signals, and driving while operating privileges are suspended or revoked.

Appellant faced a maximum penalty of 8½ to 17 years’ imprisonment. (Id.

at 3.)   The court accepted the plea and appellant elected to proceed

immediately to sentencing. (Id. at 8.)

      Appellant presented the testimony of a representative from Justice

Related Services (“JRS”), outlining a proposed treatment plan. (Id. at 9.)

The trial court rejected the JRS plan but imposed a mitigated range sentence

of 4 to 8 years’ imprisonment followed by 5 years of probation. (Id. at 11.)

After being advised of his rights, appellant stated he wished to withdraw the

plea; the trial court informed him that he could file a motion. (Id. at 12.)




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     Two days later, on March 26, 2014, appellant filed a pro se petition

for reconsideration, asserting that he was not credited for time served.

(Docket #24.)    On March 28, 2014, appellant filed a counseled motion to

withdraw guilty plea, alleging that his plea was invalid due to the stress he

was under:

             In support of this motion, the defendant avers that
             he was under the strain of significant family
             emergencies that would render his guilty plea
             unknowing,      unintelligent,    and     involuntary.
             Specifically, shortly before his plea of guilty, the
             defendant learned that: his uncle who he was very
             close to, had died; that his cousin had been involved
             in a shooting, and a close relative was undergoing
             surgery.

Motion to withdraw guilty plea, 3/28/14 at 2 ¶6; docket #28.

     Both the motion to withdraw guilty plea and the pro se motion for

reconsideration/time credit were denied on April 21, 2014.      (Docket #30.)

On May 16, 2014, appellant filed a timely notice of appeal. By order filed

July 3, 2014, appellant was directed to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A.,

on or before July 23, 2014; appellant timely complied on July 18, 2014. In

his Rule 1925(b) statement, appellant alleged that he was under extreme

emotional duress at the time of the plea; and also, that he had attempted to

assert his innocence on the record at the time of the guilty plea by stating

that he had no knowledge a firearm was in the car he was driving.




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(Rule 1925(b) statement, 7/18/14 at 3 ¶11; docket #34.) On February 4,

2015, the trial court filed a Rule 1925(a) opinion.

      Appellant has raised the following issue for this court’s review on

appeal:

            1.     WHETHER THE TRIAL COURT ERRED IN
                   DENYING THE [APPELLANT]’S MOTION TO
                   WITHDRAW HIS GUILTY PLEA AFTER THE
                   PENALTY WAS ASSESSSED [SIC] WHEN
                   DENYING THE MOTION RESUTLED [SIC] IN A
                   MANIFEST INJUSTICE?

Appellant’s brief at 4.

            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).
            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”).

Commonwealth v. Lincoln, 72 A.3d 606, 609-610 (Pa.Super. 2013),

appeal denied, 87 A.3d 319 (Pa. 2014).


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           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.

Id. at 610, quoting Commonwealth v. Rush, 959 A.2d 945, 949

(Pa.Super. 2008), appeal denied, 972 A.2d 521 (Pa. 2009).

     Furthermore, “When considering a petition to withdraw a plea

submitted to a trial court after sentencing, it is well-established that a

showing of prejudice on the order of manifest injustice is required before

withdrawal is properly justified.” Commonwealth v. Byrne, 833 A.2d 729,

737 (Pa.Super. 2003), quoting Commonwealth v. Johns, 812 A.2d 1260,

1261 (Pa.Super. 2002) (emphasis in original).



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             The standard for withdrawal of a guilty plea after
             imposition of sentence is much higher [than the
             standard applicable to a presentence motion to
             withdraw]; a showing of prejudice on the order of
             manifest injustice is required before withdrawal is
             properly justified.   A plea rises to the level of
             manifest injustice when it was entered into
             involuntarily, unknowingly, or unintelligently.

Id.,   quoting      Commonwealth    v.   Muhammad,      794   A.2d     378,   383

(Pa.Super. 2002) (citations and internal quotation marks omitted).

             A showing of manifest injustice is required after
             imposition of sentence since, at this stage of the
             proceeding,    permitting     the  liberal standard
             enunciated in [the presentence setting] might
             encourage the entrance of a plea as a “sentence
             testing device.” We note that disappointment by a
             defendant in the sentence actually imposed does not
             represent manifest injustice.

Id. (citations omitted).

       Appellant argues that he suffered a manifest injustice when the trial

court denied his petition to withdraw the plea because he is actually innocent

of the crimes charged. (Appellant’s brief at 12.) Appellant states that he

asserted his innocence during the plea colloquy, before sentence was

imposed.    (Id. at 16.) Appellant denied any knowledge of the gun in the

vehicle.    (Id.)    During the guilty plea colloquy, the following exchange

occurred:

             THE COURT: Why are you pleading guilty?

             [APPELLANT]:      I’m guilty of driving under
             suspension. I had a gun in the vehicle, but if I really
             knew that gun was in my vehicle, I would have



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           slowed that car up trying to stop rather than trying
           to flee and elude police officers. Just being honest.

           THE COURT: Mr. Herring, have a discussion with
           [appellant] because based upon his statements, I
           can’t accept the plea.

           MR. HERRING: I understand, Your Honor.            One
           moment, please.

           (Thereupon, there was a discussion off the record.)

           THE COURT:      Mr. Sanders, why are you pleading
           guilty?

           [APPELLANT]:     Because I’m guilty of the charges,
           Your Honor.

Notes of testimony, 3/24/14 at 6-7.

     As set forth above, this argument was not raised in the court below,

either orally, on the record following sentencing, or in post-sentence

motions.   It was raised for the first time in appellant’s Rule 1925(b)

statement. Following sentencing, appellant stated that, “Yes. I would like to

withdraw my plea.” (Id. at 12.) Appellant did not state any reason why he

wanted to withdraw his plea. In post-sentence motions, appellant raised a

credit time issue and also petitioned to withdraw his plea on the basis that

he was under emotional duress due to family circumstances.         Appellant

never asserted actual innocence as a basis for withdrawal of his guilty plea.

As such, the matter is waived.1 Lincoln, supra.


1
  Appellant does not argue on appeal that his plea was involuntary due to
emotional stress, including the recent death of a family member. Therefore,
that issue is deemed to have been abandoned.


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      Moreover, as recounted above, appellant initially denied knowledge of

the gun (which directly conflicts with the officers’ account of the incident, in

which they observed him retrieve the gun from his waistband), but, after

speaking with his attorney off the record, decided to plead guilty.      As the

Commonwealth observes, defendants choose to plead guilty for various

reasons, including to argue for a lesser sentence. See Commonwealth v.

Anthony, 475 A.2d 1303, 1307 (Pa. 1984) (“A defendant may plead guilty

for any reason:   to shield others, avoid further exposure, to diminish the

penalty, to be done with the matter, or any secret reason that appeals to his

needs.   What is generally and most objectively accepted is that a plea is

offered to relieve conscience, to set the record straight and, as earnest of

error and repentance, to accept the penalty.”).         By entering the plea,

appellant chose to waive any defenses he might have had.           There is no

manifest injustice apparent from the record.      It appears more likely that

appellant was simply unsatisfied with his sentence, having received a state

sentence instead of intermediate punishment. There is no error here.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/18/2015




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