J-A23020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                          OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

WAYNE DAVIS,

                         Appellant                 No. 1739 WDA 2018


    Appeal from the Judgment of Sentence Entered November 16, 2018
               In the Court of Common Pleas of Blair County
           Criminal Division at No(s): CP-07-CR-0002029-2017


BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                  FILED DECEMBER 6, 2019

     Appellant, Wayne Davis, appeals from the judgment of sentence of an

aggregate term of 12 to 24 years’ incarceration, imposed after he entered a

negotiated guilty plea to possession with intent to deliver a controlled

substance (35 P.S. § 780-113(a)(30)), dealing in the proceeds of unlawful

activities (18 Pa.C.S. § 911(a)(1)), corrupt organizations (18 Pa.C.S. §

911(b)(1)), and two counts of criminal conspiracy (18 Pa.C.S. § 903). On

appeal, Appellant contends that his guilty plea was not knowing, intelligent,

and voluntary. We affirm.

     Appellant was charged with various offenses, including those set forth

above, after “a statewide investigating grand jury conducted an investigation

into the reported sale of controlled substances, namely heroin, by various

individuals during 2015 and 2016 in the Altoona, Pennsylvania[,] area.” Trial
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Court Opinion (TCO), 4/23/19, at 2.         On November 16, 2018, Appellant

entered a negotiated guilty plea to the charges set forth supra, and the court

sentenced him that same day to the agreed-upon, aggregate term of 12 to 24

years’ incarceration. He did not file a post-sentence motion.

      On December 7, 2018, Appellant filed a timely, pro se notice of appeal.

This Court subsequently ordered the trial court to appoint Appellant counsel,

which the court did. We then remanded the case for counsel to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. Counsel filed

that Rule 1925(b) statement, and the trial court issued a Rule 1925(a) opinion

on April 23, 2019. Herein, Appellant states one issue for our review:

      1) [Was Appellant’s] guilty plea made intelligently, knowingly, and
      voluntarily when the oral and written guilty plea colloquy fail[ed]
      to set forth any factual basis for the guilty plea, lack[ed] any
      description of the nature of the charges[,] and fail[ed] to inform
      [Appellant] of the court’s power to deviate from any
      recommended sentence as required by Commonwealth v.
      Flanagan, 854 A.2d 489 (Pa. 2004)[,] and … Pennsylvania Rule[]
      of Criminal Procedure 590[?]

Appellant’s Brief at 9.

      Preliminarily, the Commonwealth contends that Appellant has waived

his challenge to the validity of his guilty plea by not raising this claim before

the trial court at the plea proceeding, or in a post-sentence motion.        The

Commonwealth explains:

      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



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     measure results in waiver. See Commonwealth v. Tareila, 895
     A.2d 1266, 1270 n.3 (Pa. Super. 2006)[,] stating:

        We recognize that Appellant’s remaining claims are waived
        because Appellant failed to file a post-sentence motion
        seeking to withdraw his guilty plea. “Issues not raised in the
        lower court are waived and cannot be raised for the first
        time on appeal.” Pa.R.A.P. 302(a). Where an appellant fails
        to challenge his guilty plea in the trial court, he may not do
        so on appeal. Commonwealth v. Watson, 835 A.2d 786,
        791 (Pa. Super. 2003). In order to preserve an issue related
        to the guilty plea, an appellant must either “object at the
        sentence colloquy or otherwise raise the issue at the
        sentencing hearing or through a post-sentence motion.
        Commonwealth v. D’Collanfield, 805 A.2d 1244, 1246
        (Pa. Super. 2002).

     Historically, Pennsylvania courts adhere to this waiver principle
     because “it 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) (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[.]”).

            Instantly, in light of the foregoing authority, [Appellant]
     cannot obtain review of his claim on direct appeal because he
     failed to preserve it properly by either objecting during the plea
     colloquy or by filing a post-sentence motion to withdraw the plea.
     See Pa.R.Crim.P. 720(B)(1)(a)(i); Commonwealth v. Lincoln,
     72 A.3d 606, 609-11 (Pa. Super. 2013).

Id. at 6-8.   Notably, Appellant offers no response to the Commonwealth’s

waiver argument.




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       Our review of the record confirms that Appellant at no point challenged

the validity of his guilty plea before the trial court. Therefore, we agree with

the Commonwealth that he has waived his issue for our review.1

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/6/2019




____________________________________________


1  Nevertheless, even had Appellant preserved his claim, we would conclude
that he has not demonstrated a manifest injustice warranting the post-
sentence withdrawal of his plea. Commonwealth v. Kehr, 180 A.3d 754,
756-57 (“A defendant must demonstrate that manifest injustice would result
if the court were to deny his post-sentence motion to withdraw a guilty plea.”)
(citation omitted). As we explained in Kehr,

       Manifest injustice may be established if the plea was not tendered
       knowingly, intelligently, and voluntarily. In determining whether
       a plea is valid, the court must examine the totality of
       circumstances surrounding the plea. A deficient plea does not per
       se establish prejudice on the order of manifest injustice.

Id. at 757 (citation omitted). In this case, the trial court aptly explains why
the totality of the circumstances surrounding Appellant’s plea demonstrates
that it was knowing, voluntary, and intelligent. See TCO at 4-15. Thus, had
Appellant preserved his claim for our review, we would adopt the trial court’s
rationale and conclude that he is not entitled to withdraw his plea.


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