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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                         :
DALE MICHAEL WAKEFIELD,                  :           No. 2904 EDA 2015
                                         :
                         Appellant       :

             Appeal from the Judgment of Sentence, June 5, 2014,
                in the Court of Common Pleas of Bucks County
              Criminal Division at Nos. CP-09-CR-0002725-2014,
                           CP-09-CR-0006123-2013

BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED MARCH 21, 2017

        Dale Michael Wakefield appeals from the June 5, 2014 judgment of

sentence after he entered guilty pleas in two unrelated prosecutions.            At

No. CP-09-CR-006123-2013,       appellant    pled   guilty   to   one   count    of

first-degree murder and two counts of aggravated assault.1 The sentencing

court imposed an aggregate sentence of life imprisonment without the

possibility of parole. At No. CP-09-CR-0002725-2014, appellant pled guilty

to two counts of aggravated assault and one count each of assault by

prisoner, simple assault, and harassment.2 The sentencing court imposed an




* Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2502(a), 2702(a)(1), and 2702(a)(4), respectively.
2
  18 Pa.C.S.A. §§ 2702(a)(1),          2702(a)(4),    2703(a),    2701(a),      and
2709(a)(1), respectively.
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aggregate sentence of 10½ to 30 years’ imprisonment to run consecutive to

the life sentence. After careful review, we affirm.

      Appellant raises the following issue for our review:

             Did the lower court err by accepting [appellant’s]
             guilty plea, which was unknowing and involuntarily
             tendered while he was under the influence of
             prescribed psychotropic medications?

Appellant’s brief at 2.

      At the outset, the Commonwealth suggests that we quash this appeal

for lack of jurisdiction.    The question of timeliness of an appeal is

jurisdictional.   Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa.Super.

2000) (citation omitted). A notice of appeal must be filed within 30 days of

the entry of the order being appealed. See id.; see also Pa.R.A.P. 903(a).

This court may not extend the time for filing a notice of appeal.        See

Pa.R.A.P. 105(b). Rule 720 of the Pennsylvania Rules of Criminal Procedure

provides that a party may file post-sentence motions no later than 10 days

after imposition of sentence.   A timely motion tolls the appeal period; an

untimely motion does not. See Commonwealth v. Dreves, 839 A.2d 1122

(Pa.Super. 2003) (en banc); Commonwealth v. Felmlee, 828 A.2d 1105

(Pa.Super. 2003) (en banc). “[W]here the defendant does not file a timely

post-sentence motion, there is no basis to permit the filing of an appeal

beyond 30 days after the imposition of sentence.”            Commonwealth v.

Green, 862 A.2d 613, 618 (Pa.Super. 2004) (en banc).




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      The factual histories of the two incidents that gave rise to appellant’s

guilty pleas are not germane to this appeal. The procedural history following

entry of those guilty pleas, however, is perplexing, at best.

      The record reflects that appellant, while represented by the Bucks

County Public Defender’s Office, entered his guilty pleas, and the sentencing

court imposed judgment of sentence on June 5, 2014. Nothing in the record

indicates   that   the   public   defender’s   office   moved   to   withdraw   its

representation of appellant following entry of appellant’s guilty pleas.        In

fact, the public defender’s office continued to represent appellant for

approximately a year after appellant entered those guilty pleas.

      Nevertheless, the public defender’s office failed to file post-sentence

motions on appellant’s behalf.      As such, appellant was required to file his

notice of appeal on or before July 7, 2014.3 The public defender’s office did

not file a notice of appeal on appellant’s behalf.

      The record, however, reflects that appellant filed a pro se notice of

appeal.4 (Docket #39.) Appellant dated his pro se notice of appeal July 1,



3
    We note that 10 days following imposition of sentence was Sunday,
June 15, 2014, and that 30 days following imposition of sentence was
Saturday, July 5, 2014. Therefore, the filing deadlines were extended to the
next business day. See 1 Pa.C.S.A. § 1908 (providing that when a statutory
filing deadline falls on a Saturday, Sunday, or holiday, the deadline will be
extended to the next business day).
4
  A pro se notice of appeal from a final judgment filed by a represented
appellant is sufficient to support a timely appeal. See Commonwealth v.
Cooper, 27 A.3d 994, 1007 (Pa. 2011).


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2014, but it is clearly date-stamped and was docketed on July 11, 2014.

The record also reflects that when appellant filed this pro se notice of

appeal, he filed a request to proceed in forma pauperis for purposes of

appeal and for appointment of counsel.         (Docket #38.)    Additionally,

appellant filed a pro se proof of service.    Although appellant signed the

proof of service and dated it July 1, 2014, he did not indicate the parties

upon whom he served his pro se notice of appeal and “appointment of

counsel on appeal.”     (Id.)   For reasons unknown, the envelope that

contained appellant’s notice of appeal, as well as his request to proceed

in forma pauperis and the proof of service, bears no postmark.       In fact,

nothing on the envelope indicates when the appeal was mailed. Under these

circumstances, we give appellant the benefit of the doubt and treat his

appeal as timely filed pursuant to the prisoner mailbox rule.           See

Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (extending

prisoner mailbox rule to all appeals by pro se prisoners).

      The procedural quagmire, however, does not end there.      The record

further reflects that when appellant filed his pro se notice of appeal, Bucks

County directed the appeal to Commonwealth Court.            The appeal was

subsequently docketed in this court.

      On July 17, 2014, the trial court granted appellant’s pro se request to

proceed in forma pauperis for purposes of direct appeal, but did not

appoint counsel. (Docket #40.) Then, on July 29, 2014, appellant, through



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counsel at the public defender’s office, filed “nunc pro tunc post-sentence

motions,” as well as a “petition to reinstate [appellant’s] appellate rights

nunc pro tunc.”         (Docket #41 and #42.)        On August 5, 2014, the

Commonwealth filed a motion to deny appellant’s post-sentence motions for

lack of jurisdiction.    Then, on August 19, 2014, appellant filed another

pro se notice of appeal to this court in Bucks County with another request to

proceed in forma pauperis.           (Docket #43.)    Because appellant was

represented by counsel, the record reflects that the Bucks County Clerk of

Courts Office placed the notice in appellant’s criminal case file and forwarded

a copy of the request to proceed in forma pauperis to the public defender’s

office and the district attorney’s office. (Id.)

      Over the course of the next several months, the trial court held

various hearings on appellant’s request to file nunc pro tunc post-sentence

motions and his petition to reinstate his appellate rights nunc pro tunc, but

it never entered an order granting or denying these counseled requests.

During a hearing on March 27, 2015, appellant, through counsel, withdrew

both of those motions in order to proceed on direct appeal.          (Notes of

testimony, 3/27/15 at 3-6; see also Bucks County Criminal Court Sheet,

3/27/15 Docket #58.)

      On July 1, 2015, appellant, through newly appointed counsel, filed a

third notice of appeal. The appeal was docketed in this court at No. 1905

EDA 2015 and dismissed on October 9, 2015, as duplicative to the current



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appeal. On June 9, 2015, however, appellant filed a pro se PCRA5 petition.

The trial court appointed counsel, Elissa Heinrichs, to represent appellant on

collateral appeal.      For reasons unknown, appointed PCRA counsel then

requested an extension of time to file a Pa.R.A.P. 1925(b) statement, which

the trial court granted. Appointed PCRA counsel then filed a Rule 1925(b)

statement on appellant’s behalf.

         On January 8, 2016, counsel filed an application for remand and an

application to withdraw as counsel. We remanded for a Grazier6 hearing.

Appellant then withdrew his request for a Grazier hearing, briefing was

re-established, and the case is now ripe for our review.

         In his only issue on appeal, appellant contends that his guilty pleas

were unknowing and involuntary because he entered his pleas while under

the influence of prescribed psychotropic medications.                  (Appellant’s brief

at 2.)

         In   considering   the   validity    of   a   guilty   plea   colloquy,   “[t]he

Pennsylvania Rules of Criminal Procedure mandate pleas be taken in open

court and require the court to conduct an on-the-record colloquy to ascertain

whether a defendant is aware of his rights and the consequences of his

plea.”    Commonwealth v. Prendes, 97 A.3d 337, 352 (Pa.Super. 2014)

(citations omitted), appeal denied, 105 A.3d 736 (Pa. 2014). Pursuant to


5
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
6
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).


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Rule 590, the sentencing court should inquire whether the defendant

understands, among other things, “the nature of the charges to which he or

she is pleading guilty[,]” and “the permissible ranges of sentences and fines

possible.” Pa.R.Crim.P. 590, Comment. “[N]othing in the rule precludes the

supplementation of the oral colloquy by a written colloquy that is read,

completed, and signed by the defendant and made a part of the plea

proceedings.”    Commonwealth v. Bedell, 954 A.2d 1209, 1212-1213

(Pa.Super. 2008) (citation omitted), appeal denied, 964 A.2d 893 (Pa.

2009).

      Thereafter,

            [t]he reviewing Court will evaluate the adequacy of
            the plea colloquy and the voluntariness of the
            resulting plea by examining the totality of the
            circumstances surrounding the entry of that plea.
            Pennsylvania law presumes a defendant who entered
            a guilty plea was aware of what he was doing, and
            the defendant bears the burden of proving
            otherwise.

Prendes, 97 A.3d at 352 (citations omitted). Accordingly, even if there is

an omission in the oral plea colloquy, “a plea of guilty will not be deemed

invalid if the circumstances surrounding the entry of the plea disclose that

the defendant had a full understanding of the nature and consequences of

his plea and that he knowingly and voluntarily decided to enter the plea.”

Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa.Super. 2011)

(citation omitted).




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      Here, the record reflects that appellant read, completed, and signed an

extensive 16-page written guilty plea form, which is part of the certified

record.   (Notes of testimony, 6/5/14 at Exhibit “Court 2”.)    On that form,

appellant affirmed, in writing, among other things, (i) that he understood

the charges filed against him and the permissible range of sentences that

could be imposed for those crimes; (ii) that he fully discussed his case with

his attorney and is satisfied with his attorney’s representation and advice;

(iii) that his decision to plead guilty was his and his alone; (iv) that no one

made any promises to him, threatened him, or did or said anything to him to

induce his plea or put pressure on him to plead guilty; (v) that his guilty

plea was given freely and voluntarily; (vi) that he admits that he is guilty of

the crimes to which he is pleading guilty; and (vii) that he read the entire

written colloquy, understood its full meaning, and still wanted to plead

guilty. (Id.) The written plea colloquy further reveals:

            [Question 7:] To your knowledge are you presently
            suffering from any mental or emotional disabilities?

            [Appellant’s written answer]: No.

            [Question 8:] Are you presently under treatment for
            any mental or emotional disabilities?

            [Appellant’s written answer:] Yes.

            [Question 9:] If your answer to question seven or
            eight is yes, does your disability prevent you from
            understanding your rights or what you are doing by
            pleading guilty?

            [Appellant’s written answer:] No.


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Id.

      The record further reflects that the sentencing court conducted an

extensive oral colloquy, which, when transcribed, spans 78 pages.      At the

beginning of the colloquy, appellant acknowledged that he was entering his

guilty pleas voluntarily and of his own free will. (Notes of testimony, 6/5/14

at 4.) Appellant further acknowledged that no one threatened or forced him

into pleading guilty. (Id.) The transcript reflects that the sentencing court

went through every page of the 16-page written guilty-plea colloquy with

appellant, during which time, the following took place:

            THE COURT: [A]s of today[, h]ave you consumed
            any alcohol, drugs or prescription drugs within the
            last 24 hours?

            [APPELLANT]: Yes, Your Honor.

            THE COURT: What have you consumed?

            [APPELLANT]:       I consumed       my    medication,
            Risperdal, and Alpraxolam [sic].

            THE COURT: Do those medications interfere with
            your ability to understand what I have said to you so
            far?

            [APPELLANT]: No, Your Honor.

            THE COURT: To your knowledge, are you presently
            suffering from any mental or emotional disabilities?

            [APPELLANT]: No.

            THE COURT: Are you presently under any treatment
            for mental or emotional disabilities?



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              [APPELLANT]: Yes.

              THE COURT: And that’s at the prison?

              [APPELLANT]: Yes, Your Honor.

              THE COURT: Counsel, you’ve had an evaluation
              done. Are you satisfied that he’s able to participate
              in his defense and understand these proceedings?

              [DEFENSE COUNSEL]:        Yes, Your Honor.     As to
              mental disabilities, the prison has diagnosed him.
              He’s had a number of different diagnoses, but the
              most current one is post traumatic stress disorder,
              severe depression and traumatic brain injury, and
              that’s what the prison is presently treating him for
              and what the medications are for.

              THE COURT: Understanding that counsel, are you
              satisfied that your client has been able to participate
              in his defense and understands these proceedings?

              [DEFENSE COUNSEL]: Absolutely, Your Honor.

Id. at 6-8.

      The oral guilty-plea colloquy further demonstrates, among other

things, that appellant acknowledged that he understood the permissible

range of sentences and fines for the offenses charged; that appellant

acknowledged that he understood that he had the right to trial by jury; that

appellant acknowledged that he understood that he is presumed innocent

until found guilty; that appellant acknowledged that the sentencing court

was not bound by the terms of the plea agreement appellant entered into

with the Commonwealth until the sentencing court accepted the agreement;

and that appellant entered into the pleas freely, voluntarily, and without any



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force, threats, pressure or intimidation.    The record further reflects that

appellant agreed with and admitted to the factual basis of his guilty pleas as

set forth by the Commonwealth.

      After thoroughly reviewing the record, we conclude that the totality of

the circumstances surrounding appellant’s entry of his guilty pleas discloses

that appellant fully understood the nature and consequences of his plea and

that he knowingly and voluntarily decided to enter the pleas.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/21/2017




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