J-S51027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DAVID J. ZORGER, JR.,

                            Appellant                 No. 167 EDA 2017


          Appeal from the Judgment of Sentence September 2, 2016
                In the Court of Common Pleas of Bucks County
             Criminal Division at No(s): CP-09-CR-0001811-2016


BEFORE: BOWES and SHOGAN, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.:                           FILED AUGUST 25, 2017

       David J. Zorger, Jr. (“Appellant”) appeals the judgment of sentence

entered on September 2, 2016. We affirm.

       This case arose on January 25, 2016, when Appellant assaulted his

mother and the responding Bristol Township police officers.     On June 13,

2016, Appellant pled guilty to four counts of aggravated assault, two counts

of possessing an instrument of crime, two counts of terroristic threats, one

count of resisting arrest, and one count of criminal mischief.1 On September



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*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 2702(a)(3), 907, 2706(a)(1), 5104, and 3304(a)(5),
respectively.
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2, 2016, Appellant admitted to violating his probation, waived a Gagnon II2

hearing, and proceeded to sentencing. The trial court first found Appellant

in direct violation of his probation on a 2014 conviction as a result of the

guilty plea.     The trial court then sentenced Appellant on the probation

violation to incarceration for eighteen to forty-eight months and on each of

the aggravated assault counts to incarceration for two to five years, the

latter to be served concurrently with each other and consecutively to

Appellant’s probation-violation sentence. N.T., 9/2/16, at 8, 22–24.

       Appellant filed a counseled motion to modify and reconsider sentence

on September 6, 2016. He filed a pro se post-sentence motion to modify

sentence on September 12, 2016.3               The trial court held a hearing on the

counseled motion on December 14, 2016. Appellant presented evidence of a

treatment program he was participating in and requested that all sentences
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2
   Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (noting that probationer
is entitled to two hearings, a pre-revocation hearing and a final revocation
hearing, before a final revocation decision can be made).
3
     Appellant also filed a premature pro se petition pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546, on November 21,
2016, which he withdrew during the hearing on his counseled motion for
reconsideration of sentence. N.T., 12/14/16, at 7. Appellant filed a second
premature pro se PCRA petition on January 17, 2017. “The PCRA provides
petitioners with a means of collateral review, but has no applicability until
the judgment of sentence becomes final.” Commonwealth v. Kubis, 808
A.2d 196, 198 n.4 (Pa. Super. 2002). Therefore, Appellant’s second PCRA
filing should be dismissed without prejudice and refiled once his judgment of
sentence becomes final. Accord Commonwealth v. Leslie, 757 A.2d 984,
985 (Pa. Super. 2000) (“A PCRA petition may only be filed after an
appellant has waived or exhausted his direct appeal rights”).



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run concurrently.     N.T., 12/14/16, at 11–12.              The trial court denied

Appellant’s post-sentence motion, and Appellant filed this timely appeal.

Following the appointment of new counsel, Appellant and the trial court

complied with Pa.R.A.P. 1925.

      On appeal, Appellant presents a single issue for our consideration:

      A. WHETHER APPELLANT’S GUILTY PLEA WAS KNOWINGLY,
         INTELLIGENTLY, AND VOLUNTARILY ENTERED UNDER
         CIRCUMSTANCES WHERE HE WAS NOT ADVISED OF THE
         POTENTIAL FOR CONSECUTIVE SENTENCES WITH A
         PROBATION/PAROLE VIOLATION?

Appellant’s Brief at 4.

      Appellant argues that he did not enter a knowing, voluntary, and

intelligent plea because he “was not advised of the potential that his

sentence on the probation violation could be run consecutive to the sentence

on the new case.” Appellant’s Brief at 10. The Commonwealth counters that

“Appellant has waived his appellate claims with respect to the validity of his

plea because he failed to preserve these claims before the trial court.”

Commonwealth’s      Brief   at    7.   Upon      review,     we    conclude    that    the

Commonwealth is correct.

      “Settled Pennsylvania law makes clear that by entering a guilty plea,

the   defendant   waives    his    right    to   challenge    on    direct    appeal   all

nonjurisdictional defects except the legality of the sentence and the validity

of the plea.”   Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa. Super.

2013) (citation omitted). However:


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      [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”).

            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. . . .
            Commonwealth v. Rush, 959 A.2d 945, 949
            (Pa.Super.2008), appeal denied, 601 Pa. 696, 972
            A.2d 521 (2009).

Lincoln, 72 A.3d at 609–610.

      In determining that Appellant did not preserve his guilty-plea

challenge, the trial court opined as follows:

            Here, Appellant did not move to withdraw his guilty plea
      prior to sentencing. Further, no argument as to the validity of
      the guilty plea was raised in Appellant’s counseled Motion to
      Modify and Reconsider Sentence. This issue was also not raised
      at the hearing on the Motion to Modify and Reconsider. The
      [c]ourt was not required to confront this issue until Appellant

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      filed his Statement of Errors Complained of on Appeal on March
      13, 2017.      Accordingly, the [c]ourt believes that Appellant
      waived his right to assert this issue on appeal.

Trial Court Opinion, 3/28/17, at unnumbered 5. We agree.

      Appellant did not object to the guilty plea during the plea colloquy.

N.T., 6/13/16, at 2–11.     Although Appellant’s counsel filed a timely post-

sentence motion, that motion did not challenge the guilty plea or seek

withdrawal of the plea. Motion to Modify and Reconsider Sentence, 9/6/16.

Additionally, Appellant’s pro se post-sentence motion affords no relief on two

grounds.     First,   Appellant   is   not   entitled   to   hybrid   representation.

Commonwealth v. Jette, 23 A.3d 1032, 1036 (Pa. 2011). Accordingly, pro

se motions have no legal effect and, therefore, are legal nullities.

Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super. 2007).

Second, even if legally effective, Appellant’s pro se motion did not seek

withdrawal of the plea. Motion to Modify Sentence, 9/12/16.

      Thus, we conclude that 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 raising it in a timely post-sentence motion to

withdraw the plea. Pa.R.Crim.P. 720(B)(1)(a)(i). Accordingly, we decline to

review Appellant’s challenge to the validity of his plea.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2017




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