J-S01039-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    JUNIOR RASHEAN JACKSON                     :
                                               :
                      Appellant                :       No. 1290 MDA 2017

            Appeal from the Judgment of Sentence January 28, 2016
             In the Court of Common Pleas of Lackawanna County
             Criminal Division at No(s): CP-35-CR-0002126-2014


BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                            FILED MARCH 09, 2018

        Appellant, Junior Rashean Jackson, appeals nunc pro tunc from the

judgment of sentence entered in the Lackawanna County Court of Common

Pleas, following his open guilty plea to two counts of possession with intent

to deliver a controlled substance (“PWID”).1 We affirm and grant counsel’s

petition to withdraw.

        The relevant facts and procedural history of this case are as follows.

On October 21, 2015, Appellant entered an open guilty plea to two counts of

PWID. Appellant’s convictions stem from an incident on August 19, 2014, in

which Appellant possessed with the intent to deliver 8.6 grams of heroin and

11 grams of cocaine. The court sentenced Appellant on January 28, 2016,
____________________________________________


1   35 P.S. § 780-113(a)(30),
J-S01039-18


to 18 to 36 months’ imprisonment plus five years’ probation for each

offense, to run consecutively. Appellant timely filed a post-sentence motion

on Monday, February 8, 2016, seeking only Recidivism Risk Reduction

Incentive (“RRRI”) eligibility, which the court granted on April 5, 2016.

Appellant did not file a direct appeal.

        On January 30, 2017, Appellant timely filed a pro se petition under the

Post Conviction Relief Act (“PCRA”).2            In his pro se petition, Appellant

alleged, inter alia: (1) plea counsel was ineffective for failing to move to

withdraw Appellant’s guilty plea and sentencing counsel was ineffective for

failing to object during post-sentence proceedings to preserve a sentencing

claim for direct appeal; and (2) plea counsel was also ineffective for

misleading Appellant and coercing him to plead guilty where counsel led

Appellant to believe that he would receive a lesser, county sentence.

Appellant expressly sought reinstatement of his post-sentence rights nunc

pro tunc, so he could challenge the discretionary aspects of his sentence and

validity of his guilty plea.      Appellant also filed a pro se memorandum in

support of his PCRA petition expanding on these claims. In the supporting

memorandum, Appellant sought, inter alia, withdrawal of his guilty plea and

sentencing relief. Appellant also alleged counsel was ineffective for failing to

file a direct appeal on Appellant’s behalf.

____________________________________________


2   42 Pa.C.S.A. §§ 9541-9546.



                                           -2-
J-S01039-18


      The court subsequently appointed counsel, who filed a supplemental

petition on July 10, 2017.      In the supplemental PCRA petition, Appellant

claimed, inter alia, that he wrote to counsel on January 29, 2016, requesting

counsel to file a direct appeal on his behalf. Appellant insisted counsel was

ineffective for failing to seek withdraw of his guilty plea and to object to the

imposition   of   consecutive   sentences.     Appellant    expressly   requested

reinstatement of his post-sentence and direct appeal rights nunc pro tunc.

      Notwithstanding     Appellant’s    request,   the    court   restored   only

Appellant’s direct appeal rights nunc pro tunc, on July 18, 2017. Appellant

timely filed a notice of appeal nunc pro tunc on August 10, 2017. On August

15, 2017, the court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), which Appellant

timely filed on August 29, 2017.

      As a preliminary matter, appellate counsel seeks to withdraw his

representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 602 Pa.

159, 978 A.2d 349 (2009).       Anders and Santiago require counsel to: 1)

petition the Court for leave to withdraw, certifying that after a thorough

review of the record, counsel has concluded the issues to be raised are

wholly frivolous; 2) file a brief referring to anything in the record that might

arguably support the appeal; and 3) furnish a copy of the brief to the

appellant and advise him of his right to obtain new counsel or file a pro se


                                        -3-
J-S01039-18


brief to raise any additional points the appellant deems worthy of review.

Santiago, supra at 173-79, 978 A.2d at 358-61.              Substantial compliance

with these requirements is sufficient.             Commonwealth v. Wrecks, 934

A.2d 1287, 1290 (Pa.Super. 2007).

       In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:

          Neither Anders nor McClendon3 requires that counsel’s
          brief provide an argument of any sort, let alone the type of
          argument that counsel develops in a merits brief. To
          repeat, what the brief must provide under Anders are
          references to anything in the record that might arguably
          support the appeal.

                                       *       *   *

          Under Anders, the right to counsel is vindicated by
          counsel’s examination and assessment of the record and
          counsel’s references to anything in the record that
          arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

          [I]n the Anders brief that accompanies court-appointed
          counsel’s petition to withdraw, counsel must: (1) provide a
          summary of the procedural history and facts, with citations
          to the record; (2) refer to anything in the record that
          counsel believes arguably supports the appeal; (3) set
          forth counsel’s conclusion that the appeal is frivolous; and
          (4) state counsel’s reasons for concluding that the appeal
          is frivolous. Counsel should articulate the relevant facts of
          record, controlling case law, and/or statutes on point that
          have led to the conclusion that the appeal is frivolous.
____________________________________________


3   Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).



                                           -4-
J-S01039-18



Id. at 178-79, 978 A.2d at 361.

       Instantly, appellate counsel filed a petition to withdraw. The petition

states counsel conducted a conscientious review of the record and

determined the appeal is wholly frivolous. Counsel also supplied Appellant

with a copy of the brief and a letter explaining Appellant’s right to retain new

counsel or proceed pro se to raise any additional issues Appellant deems

worthy of this Court’s attention.         In the Anders brief, counsel provides a

summary of the facts and procedural history of the case.                Counsel’s

argument refers to relevant law that might arguably support Appellant’s

issue. Counsel further states the reasons for his conclusion that the appeal

is wholly frivolous.     Therefore, counsel has substantially complied with the

requirements of Anders and Santiago.

       Counsel raises the following issue on Appellant’s behalf:4

          SHOULD APPELLATE COUNSEL BE GRANTED LEAVE TO
          WITHDRAW AS COUNSEL BECAUSE ANY APPELLATE
          ISSUES IN THE INSTANT CASE ARE FRIVOLOUS?

(Anders Brief at 2).

       Appellant argues: (1) his sentence is illegal because his PWID

convictions should have merged for sentencing purposes where they arose

from a single criminal act; (2) Appellant’s guilty plea was unknowing and

____________________________________________


4 Appellant has not responded to the Anders brief pro se or with newly
retained private counsel.



                                           -5-
J-S01039-18


involuntary because the court failed to advise him of the maximum

aggregate sentence he could face and that the court could impose

consecutive sentences;5 and (3) the court abused its discretion by imposing

consecutive sentences. We disagree.

       Generally, “[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.”

Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa.Super. 2013), appeal

denied, 624 Pa. 688, 87 A.3d 319 (2014) (holding defendant failed to

preserve challenge to validity of guilty plea where he did not object during

plea colloquy or file post-sentence motion to withdraw plea).                Likewise,

objections to the discretionary aspects of a sentence are waived if they are

not raised at the sentencing hearing or in a timely filed post-sentence

motion. Commonwealth v. Griffin, 65 A.3d 932 (Pa.Super. 2013), appeal

denied, 621 Pa. 682, 76 A.3d 538 (2013).                      See also Pa.R.Crim.P.

720(A)(1), (B)(1)(a)(i), (v) (stating post-sentence motion shall be filed no

later than 10 days after imposition of sentence).

       Where the court reinstates direct appeal rights nunc pro tunc based on

____________________________________________


5 To the extent Appellant also claims plea counsel was ineffective by coercing
Appellant’s guilty plea, that claim must await collateral review.         See
Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002) (holding
ineffective assistance of counsel claims are generally reserved for collateral
review).



                                           -6-
J-S01039-18


counsel’s ineffectiveness, the defendant is not automatically entitled to

reinstatement   of   his    post-sentence     rights   nunc   pro    tunc   as   well.

Commonwealth         v.    Liston,   602   Pa.   10,   977    A.2d   1089    (2009).

Nevertheless, a PCRA court can reinstate a defendant’s post-sentence rights

nunc pro tunc if the defendant successfully pleads and proves he was

deprived of the right to file and litigate post-sentence motions as a result of

ineffective assistance of counsel.      Id. at 19 n.9, 977 A.2d at 1094 n.9

(noting counsel may be deemed ineffective for failing to file post-sentence

motions when claim requires preservation in trial court for purposes of

appellate review).   Compare Commonwealth v. Fransen, 986 A.2d 154

(Pa.Super. 2009) (holding PCRA petitioner who obtains reinstatement of

direct appeal rights nunc pro tunc is not entitled to reinstatement of post-

sentence rights nunc pro tunc if he did not request that relief with PCRA

court; appellant’s claim that he was entitled to file post-sentence motions

and to have benefit of evidentiary hearing warranted no relief where

appellant did not plead or prove in PCRA petition that he was deprived of

right to file post-sentence motions).

      Instantly, Appellant entered an open guilty plea on October 21, 2015,

to two counts of PWID. The court sentenced Appellant on January 28, 2016,

to consecutive terms of 18 to 36 months’ imprisonment plus five years’

probation for each offense.      Appellant did not file a post-sentence motion

seeking to withdraw his guilty plea or challenging the discretionary aspects


                                        -7-
J-S01039-18


of his sentence.      Appellant also did not file a direct appeal.      Appellant

subsequently filed a pro se PCRA petition and counseled supplemental PCRA

petition, alleging, inter alia, plea counsel’s ineffectiveness for failing to move

to withdraw Appellant’s guilty plea, sentencing counsel’s ineffectiveness for

failing to object during post-sentence proceedings to preserve a sentencing

claim for direct appeal, and sentencing counsel’s failure to file a direct

appeal on Appellant’s behalf. In both petitions, Appellant expressly sought

reinstatement    of   his   post-sentence   motion    rights   nunc   pro   tunc.

Nevertheless, the court restored only Appellant’s direct appeal rights nunc

pro tunc.

      Consistent with Liston and Fransen, Appellant pled that he was

deprived of the right to file and litigate post-sentence motions as a result of

ineffective assistance of counsel.     See Liston, supra; Fransen, supra.

Appellant’s petitions made clear he wanted to challenge the validity of his

guilty plea and the discretionary aspects of his sentence, so restoration of

Appellant’s direct appeal rights nunc pro tunc without restoration of

Appellant’s post-sentence motion rights nunc pro tunc, was essentially an

empty gesture. In light of Appellant’s stated intent to challenge the validity

of his guilty plea and imposition of consecutive sentences on appeal, the

PCRA court should have restored Appellant’s post-sentencing rights as well.

See Liston, supra; Fransen, supra.             See also Commonwealth v.

Rivera, 154 A.3d 370 (Pa.Super. 2017) (en banc), appeal denied, ___ Pa.


                                      -8-
J-S01039-18


___, 169 A.3d 1072 (2017) (affirming PCRA court’s reinstatement of

appellant’s post-sentence motion and direct appeal rights nunc pro tunc

based on counsel’s ineffectiveness for failing to consult with appellant about

whether he wanted to file direct appeal; PCRA court properly restored

Appellant’s post-sentencing rights nunc pro tunc because one issue appellant

wanted to raise regarding withdrawal of his guilty plea required preservation

in trial court).     Under these circumstances, we decline to deem any of

Appellant’s claims waived for failure to preserve them in a post-sentence

motion. Nevertheless, Appellant did not preserve his discretionary aspects

of sentencing claim in his court-ordered Rule 1925(b) statement, so it is

waived on that basis.6 See Commonwealth v. Castillo, 585 Pa. 395, 888

A.2d 775 (2005) (holding as general rule that issues not raised in Rule

1925(b) statement are waived on appeal).

       Regarding Appellant’s remaining claims, after a thorough review of the

record, the briefs of the parties, the applicable law, and the well-reasoned

opinion of the Honorable Michael J. Barrasse, we affirm those issues on the

basis of the trial court’s opinion. (See Trial Court Opinion, filed October 16,

2017, at 5-10) (finding: (1) facts underlying each of Appellant’s PWID
____________________________________________


6 Moreover, Appellant’s discretionary aspects claim does not present a
substantial question. See Commonwealth v. Gonzalez-Dejusus, 994
A.2d 595 (Pa.Super. 2010) (explaining as general rule that court’s exercise
of discretion in imposing consecutive versus concurrent sentences does not
present substantial question; noting that imposition of consecutive
sentences raises substantial question in only rare and most extreme cases).



                                           -9-
J-S01039-18


convictions are totally separate and constitute two criminal acts; one

conviction involves PWID of heroin; other conviction involves PWID of

cocaine; heroin and cocaine are two separate controlled substances; these

crimes do not merge for sentencing; (2) record belies Appellant’s claim that

court failed to inform him of potential maximum sentence or that court could

impose sentences consecutively; Appellant initialed each page of lengthy

written guilty plea colloquy in which he indicated his awareness of crimes to

which he pled guilty, elements of those crimes, and maximum penalties he

was facing; written guilty plea specifies that maximum sentence for PWID

(heroin) is 15 years’ imprisonment and for PWID (cocaine) is 10 years’

imprisonment, and that aggregate maximum penalty was 25 years’

imprisonment; written colloquy also specified that court could impose

sentences consecutively; court also conducted oral plea colloquy, at which

time Appellant affirmed that his responses in written plea colloquy were true

and correct; under totality of circumstances, Appellant knowingly and

voluntarily entered guilty plea).     Accordingly, Appellant’s discretionary

aspects of sentencing challenge is waived. Regarding the remaining claims,

we affirm on the basis of the trial court’s opinion; and, following our

independent review of the record, we grant counsel’s petition to withdraw.

     Judgment of sentence affirmed; counsel’s petition to withdraw is

granted.




                                    - 10 -
J-S01039-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/9/2018




                          - 11 -
                                                                        Circulated 02/28/2018 10:46 AM




COMMONWEALTH OF                                       IN THE COURT OF COMMON
PENNSYLVANIA                                          PLEAS OF LACKAWANNA
                                                      COUNTY
               v.

JUNIOR JACKSON                                         14 CR 2126

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Procedure and pursuant to the request of the Superior Court. Defendant iuitfor lalkscffi (herein
                                                                                           ...   -<
after "Defendant") appeals this Court's January 28, 2017, Judgment of Sentence. The Defendant's

issues on appeal are as follows:

       1. Whether the sentence Appellant received for Count I and Count II is legal since under

           the law these two crimes should have merged for sentencing purposes since they arise

           from a single criminal act and all the elements are the same?

       2. Whether the Appellant's guilty plea was not knowing and voluntary because he was

           not advised on the record of the maximum aggregate sentence and was not informed

           that his sentence could consecutively?

For the following reasons, based on a review of the record and the facts of the case, the Defendant

entered a knowing and voluntary guilty plea and was properly sentenced by this Court. Therefore,

this Court's January 28, 2017, Judgment of Sentence should be affirmed.

FACTUAL AND PROCEDURAL HISTORY

       Under Docket Number CP-35-CR-0002126-2014, the Defendant was charged with four

(4) counts of Possession with Intent to Deliver in violation of 35 P.S. § 780-l 13(a)(30), one (1)

count of Conspiracy - PWID in violation of 18 Pa. C.S.A. § 903, four (4) counts of Possession in



                                                  1
violation of 35 P.S. § 780-113(a)(16), one (1) count of Drug Paraphernalia in violation of 35 P.S.

§ 780-l 13(a)(32), and one (1) count of Possession of Marijuana in violation of 35 P.S. § 780-

l 13(a)(31).

        These charges stemmed from Defendant's August 19, 2014, arrest following Scranton

Police Detectives executing a search warrant upon the apartment in which Defendant lived.

Affidavit of Probable Cause, Detective Munley, August 19, 2014, p. 1. Scranton Police

Detectives made several controlled purchases of narcotics prior to applying for the search warrant

of 417 Olive Street, Apartments Band C, Scranton, Pennsylvania, Lackawanna County. Id. The

Defendant, a male, was taken into custody from Apartment C and Mirandized. Id. The Defendant

and his female co-defendant both received mail at Apartment C and the apartment contained both

male and female clothing. Id. The detectives found a black and maroon colored book bag with

the front pocket containing two glass bottles, one containing 28 grams and the other containing 25

grams of suspected raw heroin, as well as 17 green zip lock baggies containing approximately 10

grams of suspected cocaine and numerous empty zip lock baggies commonly used to package

narcotics. Id. The top pocket of the bag contained 12 baggies of approximately 7 g of suspected

cocaine, a plastic measuring spoon, and $150.00 U.S. currency. Id. "The main pocket of this book

bag contained 7 boxes of glassine packets used to package raw heroin, one bottle of Inositol

powder which is commonly used to dilute narcotics so that drug dealers can create more product

to sell, one box of rubber bands that are commonly used to band heroin bundles and bricks

together, two strainers that are used for sifting the narcotics and one stamper pad that is used to

 stamp glassine packets that heroin is packaged in." Id. at p. 2. The detectives also located three

 plastic baggies containing 116 glassing packets of suspected heroin and $220.00. One hundred

 (100) of those glassine packets were packaged in bricks. Id. The second bag contained 60



                                                   2
glassine packets of suspected heroin and $210.00. Id. The third contained 33 green zip lock

baggies containing approximately 16 grams of crack cocaine and $100.00. Id. The Detective then

located an additional brick wrapped in magazine paper in the Defendants bedroom. Id. The

search also yielded $1,000.00 in a men's jacket pocket in the bedroom closet, $659.00 in a wallet

in the bathroom, and a bag of approximately 20 grams of suspected marijuana, a digital scale, and

six (6) cell phones in a dresser drawer. Id. Detectives recovered three (3) additional cell phones in

the living room. Id.

       All drugs and contraband were transported to the Lackawanna County District Attorney's

Office and all drugs were field tested for positive results. Id.

       On October 21, 2015, the Defendant entered a guilty plea to two (2) counts of Possession

With Intent to Deliver, one for 8.6 grams of Heroin and one for 11 grams of Cocaine and the

remaining charges were nolle prossed. Prior to entering his guilty plea, the Defendant executed a

lengthy written plea colloquy form in which indicated his awareness of the maximum penalty he

was facing of25 years' confinement, the elements ofthecrimes charged, his satisfaction with

counsel, and the terms of the plea agreement. See Written Plea Colloquy, para. 5, 8, 13, 15. The

written plea colloquy specifically indicate the maximum for PWID heroin as 15 years, and PWID

Cocaine as 10 years and the aggregate maximum penalty of 25 years. See Written Plea

Colloquy, para. 15 and 15(a). Further, this Court also conducted an on the record inquiry into

the whether the Defendant was entering a knowing, voluntary, and intelligent plea. The

Defendant advised the Court that he was aware of the rights he was giving up and the penalties he

was facing. N.T. Guilty Plea, December 30, 2014, at p. 2-3. After receiving satisfactory

responses from the Defendant, this Court accepted the guilty plea. Id. at p. 5.




                                                    3
         On January 28, 2016, this Court sentenced the Defendant to eighteen (18) to thirty-six

(36) months' confinement, followed by five (5) years' Special Probation, on each count,

consecutive, for an aggregate term of thirty-six (36) to seventy-two (72) months' confinement

followed by ten (10) years' Special Probation.

         On April 5, 2015, this Court corrected the Defendant's sentence to reflect eligibility for

the Recidivism Risk Reduction Incentive with a minimum of thirteen and a half (13.5) months'

confinement.

         The Defendant did not file a direct appeal. On January 30, 2017, the Defendant filed a pro

se Petition under the Post-Conviction Relief Act and Terrence J. McDonald, Esq. was appointed

as PCRA counsel. In the Defendant's Amended Petition, he asserted that he requested that prior

counsel file a direct appeal in writing, but the appeal was never filed. Therefore, the Defendant

requested that his direct appeal rights be reinstated.

         As such, this Court granted the Defendant's Petition and reinstated the Defendant's right

to appeal nunc pro tune on July 18, 2017. The Defendant filed a timely Notice of Appeal to the

Pennsylvania Superior Court on August 10, 2017, and complied with this Court's Order for a

Concise Statement of Matters Complained on Appeal.

DISCUSSION

    I.       THIS COURT DID NOT ABUSE ITS DISCRETION NOR IMPOSE AN
             ILLEGAL SENTENCE AS MERGER FOR SENTENCING PURPOSES WAS
             NOT APPROPRIATE IN THIS CASE.

         Defendant's first matter raised on appeal asserts that he received an illegal sentence

because the charges should have merged for sentencing purposes since they arise from a single

criminal act and all the elements are the same. For the following reasons, this Court did not abuse




                                                    4
its discretion and the sentence imposed was proper under the law and the facts and circumstances

of the case.

        Under Pennsylvania law,

        No crimes shall merge for sentencing purposes unless the crimes arise from a single
        criminal act and all of the statutory elements of one offense are included in the statutory
        elements of the other offense. Where crimes merge for sentencing purposes, the court may
        sentence the defendant only on the higher graded offense.

42 Pa. C.S.A. § 9765.

        Merger doctrine in Pennsylvania "developed to prevent punishing a defendant more than

once for one criminal act." Commonwealth v. Gatling, 807 A.2d 890, 894 (Pa. 2002) (plurality

opinion)(citing Commonwealth v. Brown, 29 A.2d 793, 796 (Pa. 1943) (to hold that a

defendant can be subject to prosecution under different penal provisions for the same act "is to

eschew the ideal of precision in criminal law and criminal penalties")).


        Regarding merger analysis, the Pennsylvania Courts have stated:

        The question of when sentences should merge is not an easy problem, and it excites the
        advocacy of those favoring stricter against those who favor more lenient sentences.
        Analytically, the problem concerns whether a single criminal plan, scheme, transaction or
        encounter, which may or may not include many criminal acts, may constitute more than
        one crime, and if it may constitute several crimes, whether each criminal conviction may
        be punished separately or whether the sentences merge.

Commonwealth v. Healey, 836 A.2d 156 (Pa. Super. 2003) (quoting Commonwealth v.
Anderson, 650 A.2d 20, 21, decision modified on denial of reargument, 653 A.2d 615 (1994)).
        The Pennsylvania Supreme Court has clarified the analysis for determining whether
 convictions should merge for sentencing purposes as follows:
        The preliminary consideration is whether the facts on which both offenses are charged
        constitute one solitary criminal act. If the offenses stem from two different criminal acts,
        merger analysis is not required. If, however, the event constitutes a single criminal act, a
        court must then determine whether or not the two convictions should merge. In order for
        two convictions to merge: (1) the crimes must be greater and lesser-included offenses; and
        (2) the crimes charged must be based on the same facts. If the crimes are greater and
        lesser-included offenses and are based on the same facts, the court should merge the
        convictions for sentencing; if either prong is not met, however, merger is inappropriate.

                                                  5
Commonwealth v. Gatling, 807 A.2d 890, 899 (2002)(plurality)(footnote omitted).

As such, merger analysis is not appropriate when the offenses charged in a case stem from

different criminal acts. "If the offenses stem from two different criminal acts, merger analysis is

not required." Commonwealth v. Healey, 836 A.2d 156, 157-158 (Pa. Super. 2003). In the

context of Possession with Intent to Deliver charges, the Pennsylvania Superior Court has found

that the possession of different substances, or separately packaged substances, do not constitute

greater and lesser included offenses to merge for sentencing purposes. Commonwealth v.

Roberts, 133 A.3d 759, 773, appeal denied, 145 A.3d 725 (Pa. 2016) (powder cocaine and

crack cocaine, packaged separately and sold separately in the free market).

        In this case, merger doctrine is not appropriate. The Defendant entered a guilty plea to two

counts under the following statute:

               (a) The following acts and the causing thereof within the Commonwealth are
               hereby prohibited:

                       (30) Except as authorized by this act, the manufacture, delivery, or
                       possession with intent to manufacture or deliver, a controlled substance by
                       a person not registered under this act, or a practitioner not registered or
                       licensed by the appropriate State board, or knowingly creating, delivering
                       or possessing with intent to deliver, a counterfeit controlled substance.

35 Pa. C.S.A. § 780-113(a)(30).

        In this matter, the elements of Possession With Intent to Deliver are obviously identical

because the Defendant entered a guilty plea to two counts of the same statutory offense, however,

the facts underlying each crime are totally separate and constitute two different criminal acts.

Although the initiation of these charges resulted from the execution of the same search warrant,

the factual basis for the charges are different. Here, the Criminal Information shows that the

Defendant was charged with four (4) counts of Possession With Intent to Deliver (PWID) based

on the possession and packaging of four (4) different illegal substances -heroin, raw heroin,


                                                   6
cocaine, and crack cocaine. See Criminal Information. See also, Affidavit of Probable Cause.

The Defendant executed a written guilty plea colloquy form in which he clearly indicated that he

was entered a plea to one count of PWID - heroin and one count PWID - cocaine. See Written

Guilty Plea Colloquy at para. 2. Additionally, the Commonwealth recited two separate

allegations, one for the Possession With Intent to Deliver a quantity of heroin and one for the

Possession With Intent to Deliver a quantity of cocaine, two which the Defendant individually

admitted guilt. N.T. Guilty Plea, December 30, 2014, at p. 4. Heroin and cocaine are two

separate controlled substances. The Defendant cannot reasonably argue that Possession With

Intent to Deliver - Cocaine is a lesser included offense and should merge into Possession With

Intent to Deliver - Heroin. As such, the crimes should not have merged for sentencing purposes.

Therefore, this Court's January 28, 2016, Judgment of Sentence should be affirmed.


    II.      THE RECORD ESTABLISHED THAT THE DEFENDANT'S PLEA WAS
             KNOWING, INTELLIGENTLY AND VOLUNTARY.

          The Defendant's second issue on appeal asserts that the Defendant's plea was not

knowing and voluntary because the Defendant was not aware of the aggregate maximum sentence

or that his sentences may be ordered to run consecutive. Upon review, the record contradicts the

Defendant's claims.

          Under Pennsylvania law, prior to accepting a guilty plea, the trial court must make an

inquiry into the following:

          (l) Does the defendant understand the nature of the charges to which he or she is pleading
          guilty or nolo contendere?
          (2) Is there a factual basis for the plea?
          (3) Does the defendant understand that he or she has the right to trial by jury?
          ( 4) Does the defendant understand that he or she is presumed innocent until found guilty?
          (5) Is the defendant aware of the permissible range of sentences and/or fines for the
          offenses charged?



                                                   7
       (6) Is the defendant aware that the judge is not bound by the terms of any plea agreement
       tendered unless the judge accepts such agreement?
       (7) Does the defendant understand that the Commonwealth has a right to have a jury
       decide the degree of guilt if the defendant pleads guilty to murder generally?

Pa. R. Crim. P. 590, comment.

This includes the requirement that a defendant not only be advised of the maximum punishment

that he might receive, but also that consecutive sentences might be imposed. Commonwealth v.

Mendoza, 730 A.2d 503, 506 (Pa. Super. 1999) citing Commonwealth v. Persinger, 532 Pa.

317, 615 A.2d 1305 (Pa. 1992). Moreover, Rule 590 provides that nothing in the rule precludes

the use of a written colloquy that is read, completed, signed by the defendant, and made part of

the-record of the plea proceedings if the written colloquy is supplemented by some on-the-record

oral examination. Pa. R. Crim. P. 590, comment.

       As such, Pennsylvania Courts have found the court's failure to deeply delineate an aspect

of the required inquiry during the oral colloquy will not invalidate an otherwise knowing and

voluntary plea where the totality of the circumstances demonstrates the defendant's awareness.

Commonwealth v. Morrison, 878 A.2d 102, 107 (Pa. Super. 2005) citing Commonwealth v.

Schultz, 477 A.2d 1328 (Pa. 1984); Commonwealth v. Martinez. 453 A.2d 940 (Pa.

1982); Commonwealth v. Shaffer. 446 A.2d 591 (Pa. 1982). Even ifthere is an omission or

defect in the guilty plea colloquy, the guilty plea will not be deemed invalid if the defendant fully

understood the nature and consequences of his plea and then voluntarily and knowingly decided

to plead guilty. Commonwealth v. Yager, 685 A.2d 1000, (Pa. Super.1996), appeal denied,

701 A.2d 577.

        Moreover, a defendant is bound by the statements made during the plea colloquy.

Commonwealth v. Brown, 48 A ..;d 1275, 1277-78 (Pa. Super. 2012) citing Commonwealth v.

McCauley, 797 A.2d 920, 922 (Pa .Super. 2001). See Com. v. Moser, 921 A.2d 526, 529 (Pa.

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Super. 2007) (finding that where the record clearly demonstrates that a guilty plea colloquy was

conducted, during which it became evident that the defendant understood the nature of the

charges against him, the voluntariness of the plea is established); Com. v. Pollard, 832 A.2d 517

(Pa. Super. 2003) (holding that the defendant is not entitled to a withdrawal of his guilty plea by

simply retracting or contradicting his statements made during the colloquy).

       In this matter, under the totality of the circumstances the record supports a finding that the

Defendant knowingly, voluntarily, and intelligently entered the plea. The Defendant initialed each

page and executed a lengthy guilty plea colloquy in which he indicated his awareness of the

crimes to which he was pleading guilty, the elements of those crimes, and the maximum penalties

he was facing by entering a guilty plea. See Guilty Plea Colloquy, para. 2, 5, 15, 16. The written

plea colloquy indicated the maximum for PWID heroin as 15 years, and PWID Cocaine as 10

years and the aggregate maximum penalty of 25 years. Id. at para. 15 and 15(a). In fact, the

relevant portion of the written plea colloquy provided the following with the responses filled in

by hand and initialed at the bottom of the page by the Defendant:

        15.    Do you understand that the maximum penalty to the charges you are pleading
               guilty to is: PWID Heroin 15 years & 250,000 fine & PWID Cocaine 10 years &
               100,000?
        15(a). If you are pleading guilty to more than one charge, do you understand that the
               Judge may impose consecutive sentences? Yes
               If the answer to the preceding question is yes, state the total sentence that may be
               imposed on you. 25 years & 350,000


See Guilty Plea Colloquy, page 3.

The Defendant also represented to this Court that he understood his absolute right to a jury trial,

that he has sufficient time to go over his case with his attorney, and that he was satisfied with the

representation of his attorney. Id. at para. 8, 9. Moreover, the Defendant set forth that he was not

promised anything in exchange for his plea other than the terms of the plea agreement to

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withdraw the remaining charges and that he was not threatened or coerced into entering the guilty

plea. Id. at para. 13� Furthermore, prior to accepting Defendant's plea, this Court also conducted

an oral plea colloquy on the record at which time the Defendant affirmed that his responses in the

written plea colloquy were true and correct. N.T. Guilty Plea, December 30, 2014, at p. 3.

Additionally, the Commonwealth recited two separate allegations, one for the Possession With

Intent to Deliver a quantity of heroin and one for the Possession With Intent to Deliver a quantity

of cocaine, two which the Defendant individually admitted guilt. Id. at 4. The Defendant further

represented awareness of the maximum penalty for each charge. Id. at 4-5.

       Therefore, under the totality of the circumstances, the Defendant knowingly, intelligently,

and voluntarily entered the guilty plea, as established by his execution of the lengthy guilty plea

colloquy and affirmations and representations to this Court. As such, this Court's January 28,

2016, Judgment of Sentence should be affirmed.

CONCLUSION

       Based on the foregoing, this Court's January 28, 2016, Judgment of Sentence should be

affirmed.




                                              -------------' P.J.
                                              Michael J. Barrasse


CC: Notice of the entry of the foregoing Opinion has been provided to each party pursuant to
Pennsylvania Rule of Criminal Procedure 114 by mailing time-stamped copies to the following
individuals:


Lisa A. Swift, Esq.
Terrence J. McDonald, Esq.


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