J-S03037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

MIGUEL BONES

                            Appellant                   No. 1417 EDA 2015


           Appeal from the Judgment of Sentence November 5, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0004122-2011


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                          FILED JANUARY 22, 2016

        Appellant Miguel Bones appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following his

guilty plea conviction for rape1 and unlawful contact with a minor.2            We

affirm.

        The trial court set forth the relevant procedural history as follows:

           Appellant was arrested February 25, 2011 and charged
           with Rape - Forcible Compulsion,[] Involuntary Deviate
           Sexual Intercourse (“IDSI”) - Forcible Compulsion,4
           Unlawful Contact With a Minor - Sexual Offenses,[]
           Unlawful Restraint - Serious-Bodily Injury,6 Statutory
           Sexual Assault,7 False Imprisonment,8 Endangering the
           Welfare of Children - Parent/Guardian Commits Offense,9

____________________________________________


1
    18 Pa. C.S. § 3121(a)(1).
2
    18 Pa. C.S. § 6318(a)(1).
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       Corruption of Minors,10 Simple Assault,11 and Recklessly
       Endangering Another Person (“REAP”).12
          4
              18 Pa.C.S. § 3123(a)(1).
          6
               18 Pa.C.S. § 2902(a)(1).
          7
               18 Pa.C.S.§3122.1.
          8
              18 Pa.C.S. § 2903(a).
          9
               18 Pa.C.S. § 4304(a)(1).
          10
               18 Pa.C.S. § 6401(a)(1).
          11
               18 Pa.C.S. § 2701.
          12
               18 Pa.C.S. § 2705.

       On July 30, 2013, Appellant entered a negotiated guilty
       plea to the charges of Rape – Forcible Compulsion and
       Unlawful Contact With a Minor - Sexual Offenses. All other
       charges were nolle prossed. At that time, Appellant was
       sentenced on the charge of Rape [] to nine (9) to twenty–
       one (21) years of state confinement; the sentence for
       Unlawful Contact was deferred pending an assessment
       pursuant to Megan’s Law. See 42 Pa.C.S. § 9799.24.

       On August 7, 2013, Appellant filed a timely pro se [p]ost
       [s]entence [m]otion to [w]ithdraw his [g]uilty [p]lea,
       averring that: his guilty plea was coerced; he was “not
       properly informed what was lawful and unlawful;” he was
       unable to comprehend due to emotional instability and
       trauma; that he rescinded all signatures waiving his right
       to a trial; that he was “coerced . . . under fraud and
       deception by all parties by deceiving petitioner to believe
       the said court has subject matter jurisdiction;” and that
       there was no subject matter jurisdiction because “accused
       persons get charged/indicted not by laws, but by codified
       versions of laws. WHICH ARE NOT LAWS AT ALL! . . .”;
       averred that Appellant was not made aware that this court
       was operating under “statutory jurisdiction, a jurisdiction
       which rules are unknown . . .”; and further averred that he
       was unaware of being considered a “STRAWMAN
       /CORPORATION and only knows himself to be a Living
       Being, Flesh and Blood, living breathing soul,” etc.
       Essentially, Appellant raised arguments typical of the

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          Sovereign Citizen Movement but did not explain why the
          trial c]ourt did not have subject jurisdiction to sentence
          him, other than his argument that the statutes were not
          laws.13
              13
                   See Southern Poverty Law Center, “Sovereign
              Citizens Movement,” http://www.splcenter.org/get-
              informed/intelligence-files/ideology/sovereign-
              citizens-movement.

          On August 27, 2013, counsel for Appellant filed a
          [s]upplemental [p]ost [s]entence [m]otion, arguing that
          Appellant’s plea was not knowing, intelligent or voluntary,
          and that he had not been adequately informed of the
          consequences of his guilty plea, specifically that he would
          not be permitted to withdraw the plea under Pa.R.Crim.P.
          591. Appellant averred that he was told by the [trial
          c]ourt that if he were found guilty after a trial, he could
          face seventy six (76) to a hundred fifty two (152) years
          [and that this information] caused undue duress such that
          under the circumstances his plea was coerced; and that he
          was innocent of the charges against him.

          On November 15, 2013, following a hearing on Appellant’s
          [m]otion at which Appellant refused to state his name for
          the record, [the trial c]ourt denied his [m]otion to
          [w]ithdraw his [g]uilty [p]lea.

          On December 12, 2014, [the trial c]ourt held a hearing to
          determine whether Appellant was a sexually violent
          predator.[3]   Following the hearing, [the trial c]ourt
          sentenced Appellant to ten (10) years of reporting
          probation [on the unlawful contact with a minor conviction]
          to run consecutive to his incarceration in accordance with
          his plea negotiations.

          On December 19, 2014, Appellant filed a pro se [p]ost
          [s]entence [m]otion, arguing that [the trial court] had
          erred in sentencing him to ten (10) years of probation to
          run consecutive to his confinement and averred that at the
____________________________________________


3
 The trial court found Appellant was not a sexually violent predator. N.T.,
12/12/2014, at 72.



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         time of the guilty plea, Appellant’s counsel “made it clear
         on the record . . . that the plea agreement was 9-21
         years[’] incarceration for the charge of Rape and ten
         years[’] probation to run concurrent for the charge of
         Unlawful Contact.”

         On February 17, 2015, Appellant filed an [a]mendment to
         his [p]ost [s]entence [m]otion, again arguing that his
         sentence was illegal and that [the trial c]ourt lacked
         jurisdiction to impose it upon him.

         On April 18, 2015, Appellant’s [m]otions were denied by
         [o]peration of [l]aw.

Opinion, 7/24/2015, at 1-3. Appellant filed a timely notice of appeal. Both

Appellant and the trial court complied with Pennsylvania Rule of Appellate

Procedure 1925.

      Appellant raises the following issues on appeal:

         1. Was not [A]ppellant’s guilty plea invalid where, during
         the plea colloquy, [A]ppellant clearly indicated that he
         could not fully read, write and understand English, and
         therefore, the colloquy was not sufficiently adequate to
         ensure that he understood and was aware of his rights and
         the consequences of the plea?

         2. Did not the trial court err by denying [A]ppellant’s post-
         sentence motion attacking the validity of his guilty plea
         and by terminating his hearing, solely because [A]ppellant
         did not state his name for the record?

Appellant’s Brief at 3.

      Appellant has waived his first issue, i.e., that his guilty plea was

involuntary because he could not fully read, write and understand the

English language.

      “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


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withdraw the plea within ten days of sentencing.”            Commonwealth v.

Lincoln,    72   A.3d    606,   609-10   (Pa.Super.2013)     (citing   Pa.R.Crim.P.

720(A)(1), (B)(1)(a)(i)).       “Failure to employ either measure results in

waiver.”    Id. at 610 (citing Commonwealth v. Tareila, 895 A.2d 1266,

1270 n. 3 (Pa.Super.2006)). Further:

           [F]or any claim that was required to be preserved, [an
           appellate 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.   (quoting     Commonwealth          v.    Rush,   959     A.2d     945,   949

(Pa.Super.2008)).

      Following imposition of sentence for the rape conviction, Appellant filed

a pro se motion to withdraw his guilty plea and his counsel filed a motion in

support of the motion to withdraw the guilty plea. The motions did not claim

Appellant’s guilty plea was involuntary because he did not understand the

English language.       Rather, the pro se motion, which was hand-written in

English, argued the plea was coerced, Appellant was not “properly informed

what was lawful and unlawful,” and Appellant was unable to comprehend the

guilty plea due to “emotional instability and trauma.”       Motion to Withdraw

Guilty Plea, 8/7/2013, at ¶¶ 2-3.        The motion also raised various subject

matter jurisdiction arguments. Id. at 5-16. The counsel’s motion in support

of motion to withdraw the guilty plea stated the plea was not knowing,

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intelligent or voluntary because Appellant had not been informed of the

consequences of his guilty plea, i.e., he was not informed that, because he

was immediately sentenced, he would not be permitted to withdraw the

plea. Motion in Support of Petitioner’s Post-Sentence Motion, 8/27/2013, at

¶5.   It further maintained the timing and manner in which the trial court

informed Appellant he could face 76 to 152 years’ imprisonment coerced

Appellant into pleading guilty. Id. at ¶ 6.      Neither motion argued, or even

mentioned, Appellant’s alleged inability to read, write, or understand the

English language. Therefore, the legal theory advanced in this Court differs

from the theory advanced in the trial court, and Appellant waived his first

claim. See Lincoln, 72 A.3d at 610.4

____________________________________________


4
 Further, the 1925(b) statement did not challenge the voluntariness of the
waiver based on Appellant’s understanding of the English language. The
1925(a) statement raises the following issues:

          a. The trial court erred by denying [A]ppellant’s motion for
          withdrawal of his guilty plea without holding a full hearing,
          despite the fact that [A]ppellant would not identify himself
          for the record.

          b. The trial court erred by denying [A]ppellant’s motion for
          withdrawal of his guilty plea, where the plea colloquy was
          not sufficiently adequate to ensure that appellant
          understood and was aware of his rights and the
          consequences of his plea and, therefore, the entry of his
          plea was invalid.

          c. The trial court erred and abused its discretion when it
          imposed a sentence of ten years[’] probation for the
          charge of unlawful contact of a minor to run consecutive to
          [A]ppellant’s sentence of incarceration for rape, where the
(Footnote Continued Next Page)


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      Further, even if Appellant had properly preserved the claim, it lacks

merit.   At the colloquy, the trial court and Appellant had the following

exchange:

          THE COURT: [] How old are you, sir?

          [APPELLANT]: Twenty-eight years old.

          THE COURT: How far did you go in school?

          [APPELLANT]: Graduated high school.

          THE COURT:            Can you read, write, and understand
          English?

          [APPELLANT]: Yes, for the most part[,] yes.

          THE COURT: [Do y]ou have any issues understanding
          English, reading, or writing?

          [APPELLANT]: Not really.

          THE COURT: Have you ever been or are you currently
          receiving treatment for any mental illness?

          [APPELLANT]:        Not currently receiving any treatment but
          yes, I have.

          THE COURT: What was your diagnosis, sir?

          [APPELLANT]:    Bipolar, post-traumatic stress disorder,
          manic depressant, hyperactivity disorder.

                       _______________________
(Footnote Continued)

          negotiation for the plea was for the probation to run
          concurrent to the sentence of incarceration.

Supplemental Statement of Errors Complained of on Appeal, filed 6/1/2015,
at ¶ 5. This statement does not clarify that Appellant sought relief on an
alleged inability to understand English, particularly as no trial court motion
or evidence alleged such an inability.




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       THE COURT:      When were you diagnosed with those
       ailments?

       [APPELLANT]: Around 1998.

       THE COURT: Were you prescribed any medications or any
       course of treatment?

       [APPELLANT]: Yes.

       THE COURT: Are you still in treatment for those ailments?

       [APPELLANT]: No.

       THE COURT: Are you under any medication to treat those
       ailments?

       [APPELLANT]: No.

       THE COURT: [Do y]ou require medication at all at this
       point in time?

       [APPELLANT]: No.

       THE COURT: When was the last time you required any
       medication for any of those?

       [APPELLANT]: The last time I did take my medication was
       probable a year ago.

       THE COURT: Do you feel that you have the ability to
       understand what’s happening here today?

       [APPELLANT]: Yes.

       THE COURT: Are you presently under the influence of any
       drugs or alcohol or medication at all that would prevent
       you from understanding what’s happening here today?

       [APPELLANT]: No.

       THE COURT: I’m going to refer you to this written guilty
       plea colloquy form, did you go over this form with your
       attorney?

       [APPELLANT]: Yes.

       THE COURT: Did you understand the form?

       [APPELLANT]: Yes.

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J-S03037-16


         THE COURT: I’m going to direct your attention to the
         bottom of page three of four, is that your signature at the
         bottom of that form, sir?

         [APPELLANT]: Yes.

         THE COURT: Did you sign it of your own free will?

         [APPELLANT]: Yes.

N.T., 7/30/2013, at 3-5. The trial court also discussed the rights Appellant

was giving up by pleading guilty and confirmed that Appellant was not made

any promises in exchange for his guilty plea and was not threatened or

forced to plead guilty. Id. at 6-10.

      Appellant bases his claim that he did not understand the English

language on the following: (1) he responded “yes, for the most part[,] yes,”

when asked whether he could read, write and understand English; (2) he

responded   “not   really,”   when     asked   whether   he   had   any   issues

understanding English, and (3) the below exchange that occurred at the

hearing on his motion to withdraw his guilty plea:

         COURT CRIER: Case number ten. In a loud voice for the
         record state your full name, home address.

         [APPELLANT]: I don’t understand. What do you want me
         to do?

         COURT CRIER: State your full name and home address.

         [APPELLANT]: I don’t understand why I have to do that.

         COURT CRIER:         Sir, state your full name and home
         address.

         [APPELLANT]: There was no identity. I shouldn’t have to
         be here.




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         THE COURT: If you want your Motion heard, you have to
         state your name on the record or your Motion will not be
         heard today.

         [APPELLANT]:         I don’t understand why I have to identify
         myself.

         THE COURT: If you don’t identify yourself, your Motion
         wont’ be heard. All right. You can take him back, Sheriff.

         Motion is denied. He refuses to identify himself[.]

N.T., 11/15/2013, at 4-5.

       The    guilty   plea   colloquy,    in    its   entirety,   established     Appellant

understood English.       He accurately answered the questions, which were

asked in English, and responded in full, complete sentences, also in English.

Further, the exchange at the post-sentence motion hearing does not

establish Appellant did not understand English.               Appellant understood the

request, i.e., state his name for the record, but did not understand why he

had to state his name. The claim he did not understand why he had to state

his name aligns with his arguments that the court lacked jurisdiction over

him.    Appellant’s contention that his guilty plea was unknowing and

involuntary because he did not understand English lacks merit.

       Appellant next maintains the trial court erred when it denied

Appellant’s    post-sentence      motion        attacking   his    guilty   plea   when   it

terminated the hearing on the motion because Appellant would not state his

name. Appellant’s Brief at 14-17.

       Pursuant to the Pennsylvania Rules of Criminal Procedure, if a

defendant files a post-sentence motion, “[t]he judge shall also determine



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whether a hearing or argument on the motion is required, and if so, shall

schedule a date     or dates certain for one or both.”            Pa.R.Crim.P.

720(B)(2)(b).

     The trial court denied the motion to withdraw Appellant’s guilty plea

following Appellant’s refusal to state his name for the record.          N.T.,

11/15/2013, at 4-5. Regardless whether the trial court erred when it denied

the motion based on this refusal, without reference to the court’s review of

the motions to withdraw and without further attempts to ascertain

Appellant’s cooperation with the hearing proceedings, any error was

harmless. In its 1925(a) opinion, the trial court explained its denial of the

motion to withdraw the guilty plea as follows:

        [T]o withdraw a guilty plea after sentencing, an Appellant
        must demonstrate prejudice on the level of “manifest
        injustice” before such a withdrawal is justified.
        Commonwealth v. Pantalon, 957 A.2d 1267, 1271
        (Pa.Super.2008) (citation omitted). This showing may “be
        established if the plea was entered into voluntarily,
        unknowingly, or unintelligently.”        Commonwealth v.
        Yeomans, [24 A.3d 1044, 1046] (Pa.Super.Ct. 2011).
        This is a difficult standard to meet, as Pennsylvania’s guilty
        plea procedures are designed to guarantee assurance that
        guilty pleas “are voluntarily and understandingly
        tendered.” Yeomans, 24 A.3d at 1046. The extensive
        colloquy process requires courts to make a specific
        determination as to the voluntariness and understanding of
        such a plea. Id.

        At a minimum, courts have established that the following
        information should be elicited at a colloquy. Yeomans, 24
        A.3d at 1047; Pa.R.Crim.P. 590.         Does the defendant
        understand the nature of the charges to which he is
        pleading guilty; is there a factual basis for the plea; does
        the defendant understand that he or she has the right to


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J-S03037-16


       trial by jury; is the defendant aware of the permissible
       range of sentences and fines for the offenses charged; is
       the defendant aware that the judge is not bound by the
       terms of any plea agreement tendered. Id. Whether the
       plea was knowing and voluntary is a totality of the
       circumstances determination, thus, even if there is a
       defect in one aspect of the colloquy, a plea will not be
       found invalid if the defendant had a “full understanding of
       the nature and consequences of his plea and that he
       knowingly and involuntarily decided to enter the plea.”
       Commonwealth v. Fluharty, [632 A.2d 312, 314-315]
       (Pa.Super.1993).      Finally, the law presumes that an
       Appellant who enters a guilty plea was aware of what he
       was doing, and it is his burden to prove otherwise.
       Yeomans, 24 A.3d at 1047. As noted above, [the trial
       court] conducted an extensive colloquy of Appellant to
       ensure that his guilty plea was knowing, intelligent, and
       voluntary. Appellant stated that he had graduated high
       school, [and] could read, write, and understand the English
       language. N.T.[,] 7/30/13[,] at 3. Although Appellant had
       been diagnosed with bipolar disorder, he stated that he did
       not require medication, and was not under the influence of
       any drugs, alcohol, or medication that would impair his
       abilit[y] to understand what was occurring.          N.T.[,]
       7/30/13[,] at 4-5. Appellant had reviewed the guilty plea
       colloquy form with his attorney and agreed to plead guilty,
       understanding that he could be incarcerated for at least
       sixty (60) years, and that he had an absolute right to a
       jury trial. N.T.[,] 7/30/13[,] at 5-6. Appellant understood
       that his appellate rights would be limited, and he could
       only appeal on the grounds that [the trial court] did not
       have jurisdiction to hear Appellant’s case, that the plea
       was involuntary, or that Appellant’s attorney was
       ineffective. N.T.[,] 7/30/13[,] at 7-8. Appellant stated
       that, despite knowing all of the above, he wished to plead
       guilty and was pleading guilty of his own free will. N.T.[,]
       7/30/13[,] at 10.

       Following this extensive colloquy, [the trial court] found
       that Appellant’s decision to plead guilty was knowing,
       intelligent, and voluntary, and accepted his plea. N.T.[,]
       7/30/13[,] at 10-11. The colloquy was sufficient to inform
       Appellant of his rights and the consequences of his plea,
       and Appellant’s Motion indicated no further facts that could


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J-S03037-16


        allow [the trial court] to conclude that his plea was not
        voluntary; thus, Appellant is not entitled to relief on this
        claim.

Opinion, 7/24/2015, at 8-9. This was not error.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/22/2016




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