J-S74013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
OTIS WILKERSON                           :
                                         :
                    Appellant            :   No. 1227 EDA 2016

         Appeal from the Judgment of Sentence November 17, 2015
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0009610-2015,
            CP-51-CR-0510891-2006, CP-51-CR-0808421-2006


BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.

MEMORANDUM BY BOWES, J.:                            FILED MARCH 27, 2018

      Otis Wilkerson appeals from the judgment of sentence of thirty-five to

seventy years incarceration imposed following his non-negotiated guilty plea

to, inter alia, involuntary deviate sexual intercourse, robbery, and rape. We

affirm.

      This matter returns to the Court following a grant of relief in which we

vacated Appellant’s judgment of sentence. We adopt the history as set forth

in that decision.

      As this appeal involves a defect in the guilty plea process,
      extensive details of the crimes underlying Wilkerson’s
      convictions are not necessary. It is sufficient for our purposes to
      state that Wilkerson’s convictions arise from three separate
      occasions in which he took young women against their will to
      remote locations, raped them and, in two instances, stole from
      them.
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        Wilkerson was charged with numerous crimes related to these
        events and on February 28, 2011, he pled guilty to the offenses
        set forth above. The trial court subsequently sentenced
        Wilkerson to ten to 20 years on each rape conviction and ten to
        20 years on the IDSI conviction. No further penalty was imposed
        on the remaining convictions. The trial court further ordered that
        the sentences run consecutively, resulting in an aggregate term
        of 40 to 80 years of imprisonment. N.T., 6/7/11, at 15-16.
        Wilkerson filed a timely post-sentence motion seeking to
        withdraw his guilty pleas, but the trial court never acted on
        Wilkerson’s motion. The post-sentence motion was ultimately
        denied by operation of law, and this appeal followed.

Commonwealth v. Wilkerson, 2013 WL 11250801, at *1 (Pa.Super.

2013) (footnote omitted).

        We vacated Appellant’s guilty plea on the grounds it was involuntary

since    Appellant   was   not   advised   that   his   sentences   could   be   run

consecutively. The Commonwealth filed for review with our Supreme Court,

which denied the request on May 7, 2014. Commonwealth v. Wilkerson,

91 A.3d 162 (Pa. 2014).

        Following the return of the record to the Court of Common Pleas,

Appellant elected to proceed to trial by jury. However, on July 13, 2015, he

requested a continuance for new counsel. The trial court postponed the case

for one day to see if Appellant’s family could retain private counsel. On July

14, 2015, W. Fred Harrison, Jr., Esquire entered his appearance, and court

appointed counsel was permitted to withdraw. The trial court then continued

the case until November 17, 2015.

        On that date, Attorney Harrison filed a motion to dismiss pursuant to

Rule 600, which was denied.        Appellant then decided to plead guilty and



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received       an   aggregate     sentence     of    thirty-five   to   seventy   years

imprisonment. On November 30, 2015, Appellant filed a pro se motion to

withdraw his plea, claiming that he “met with counsel only once prior to

November 17, 2015, and counsel shall be deemed ineffective for lack of

preparation for the purposes of trial.”             Motion to Withdraw Guilty Plea,

11/30/15, at 1.1       The motion was denied, and Appellant filed a notice of

appeal.       This Court issued an order on June 30, 2016, remanding for a

determination as to whether counsel abandoned Appellant.                  On July 11,

2016, Attorney Harrison filed a motion to withdraw, which was granted on

July 20, 2016. Newly-appointed counsel then complied with the order to file

a concise statement of matters complained of on appeal, and the matter is

now ready for our review. Appellant raises the following claims.

       I.      The trial court committed error when it refused the
               Appellant's request to continue the case thereby violating
               the Appellant's 6th amendment right to a fair trial because
               he did not have a full and fair opportunity to consult with
               counsel.

       II.     The trial court committed error when it found there was
               not a violation of Rule 600 despite the court record which
               demonstrated that the Commonwealth failed to bring this
               case to trial in a timely manner.

       III.    The court committed error when it failed to permit the
               Appellant to withdraw his guilty plea based upon the
               motion filed November 30, 2015.
____________________________________________


1 The tenth day after sentencing was Friday, November 27, 2015. The filing
was apparently accepted on Monday, November 30, 2015 as an application
of the prisoner mailbox rule.



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Appellant’s brief at 6.

       Appellant’s first claim reads in its entirety:

             Every defendant in a criminal case shall have the right to
       competent counsel. The Sixth Amendment of the United States
       Constitution provides for the right to counsel in a criminal
       prosecution. Said right attaches at the first formal proceeding
       against an accused. McNeil v. Wisconsin, 501 U.S. 171, ----,
       111 S.Ct. 2204 2210, 115 L.Ed.2d 158, 170 (1991); Pack, In
       Interest of 616 A.2d 1006, 420 Pa. Super. 347 (Pa. Super.,
       1992).

       The appellant argues that he did not have the right to counsel
       and he was severely prejudiced in that he was not afforded the
       right to have a meaningful discussion with his most recently
       counsel, Fred Harrison. These are 3 very serious cases which, if
       found guilty, would all but amount to a de facto life sentence. To
       clarify, it appears from the record that the appellant was given 1
       day to hire an attorney, after which the case was continued for 4
       months. The appellant would argue that 4 months is not a
       significant amount of time to prepare for three cases of serious
       magnitude. This did not allow the appellant any chance to have a
       meaningful opportunity to discuss the merits of the 3 cases nor
       the defenses which could be raised even with the brea[d]th of
       experience and knowledge that attorney Harrison brings to the
       table.

Appellant’s brief at 9.

       Appellant fails to cite any portion of the record2 nor does he set forth

any standard of law. His argument, such as it is, cites the right to counsel,

and   suggests     that    Appellant    was    prejudiced   because   counsel   was

unprepared to try the case. “The appellant would argue that 4 months is not


____________________________________________


2 Appellant neglected to ensure that the notes of testimony were included in
the certified record.



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a significant amount of time to prepare for three cases of serious

magnitude.”    Id.   The trial court emphasizes that Appellant has misstated

the record:

      In his first statement of errors, Defendant complains the Court
      erred when it denied his "request to continue the case...because
      he did not have a full and fair opportunity to consult with
      counsel." Defendant's complaint is without merit, it also
      misstates the record.

              ....

      On November 17, Defendant voluntarily entered non-negotiated
      pleas of guilty. Defendant's complaint misstates the record in
      that the Court in fact granted a four month continuance, to
      November 16, 2015, to consult with newly retained private
      counsel. Prior to swearing the jury in, Defendant advised the
      Court that he had conferred with counsel and was ready to
      proceed to trial. (N.T., 11/17/15 pg. 11). At the close of opening
      arguments, counsel further advised the Court that Defendant
      wished to enter non-negotiated pleas to the pending charges.
      (N,T., 11/17/15 pg. 12).

Trial Court Opinion, 2/24/17, at 9-11.

      Thus, contrary to Appellant’s claim that the trial court somehow erred

in failing to grant a continuance request, it appears that Appellant is not

faulting the trial court in any way. Appellant recognizes as much, as he

acknowledges that the trial court postponed trial by four months; he simply

claims that “[four] months is not a significant amount of time to prepare[.]”

Appellant’s brief at 9.

      We deem this claim waived due to the complete failure to develop an

argument. “It is not the obligation of [an appellate court . . . ] to formulate

[a]ppellant's arguments for him.” Wirth v. Commonwealth, 95 A.3d 822,


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837 (Pa. 2014) (quoting Commonwealth v. Johnson, 985 A.2d 915, 924

(Pa. 2009) (alterations in original). Moreover, as stated, Appellant’s claim in

truth appears to challenge the adequacy of counsel’s representations, which

must be raised through collateral proceedings.

      Appellant’s second claim argues that the trial court incorrectly denied

his Rule 600 motion. We find that this claim is waived due to the entry of

the plea.    “A plea of guilty constitutes a waiver of all nonjurisdictional

defects and defenses. When a defendant pleads guilty, he waives the right to

challenge anything but the legality of his sentence and the validity of his

plea.” Commonwealth v. Jones, 929 A.2d 205, 212 (Pa. 2007) (quoting

Commonwealth v. Montgomery, 401 A.2d 318, 319 (Pa. 1979)).                This

includes Rule 600 claims. “[A]n alleged irregularity in proceedings prior to a

plea of guilty, including an alleged violation of Rule [600], would be

reviewable to the extent that it affected the voluntariness of the guilty plea

itself.” Commonwealth v. Gibson, 561 A.2d 1240, 1242 (Pa.Super. 1989)

(citing Commonwealth v. Riviera, 385 A.2d 976 (Pa.Super. 1978)).

Accordingly, Appellant has waived his Rule 600 claim, especially insofar as

claims challenging the voluntariness of the guilty plea must now be raised

through the PCRA. See e.g. Commonwealth v. Hickman, 799 A.2d 136

(Pa.Super.    2002)    (examining     ineffectiveness    claims    challenging

voluntariness of plea based on counsel’s advice).




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      Appellant’s    third     claim,    like   his   first,   challenges     counsel’s

representation. Appellant’s brief at 11-12 (“The appellant should have been

permitted to withdraw his guilty plea in light of his lack of effective

representation.”).      This     claim    is    unreviewable    on   direct    appeal.

Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002) (“We now hold

that, as a general rule, a petitioner should wait to raise claims of ineffective

assistance of trial counsel until collateral review.”).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/18




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