J-S79006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    PRESTON ROBERT GRIMES                      :
                                               :
                       Appellant               :   No. 728 MDA 2018

             Appeal from the Judgment of Sentence June 22, 2011
    In the Court of Common Pleas of York County Criminal Division at No(s):
                           CP-67-CR-0006368-2010


BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                      FILED: MARCH 7, 2019

       Appellant, Preston Robert Grimes, appeals nunc pro tunc from the June

22, 2011 judgment of sentence. We affirm.

       This matter is a procedural morass.1 By information filed on December

2, 2010, Appellant was charged with multiple crimes relating to his robbery of

a bank on October 4, 2010, in York, Pennsylvania.2 Information, 11/30/10.


____________________________________________


1   Appellant’s Statement of the Case pursuant to Pa.R.A.P. 2117 lacks
sufficient detail, in light of the significant procedural irregularities present in
the history of this matter. The Commonwealth’s failure to file an advocate’s
brief, as well, contributed to this Court’s challenge in identifying the relevant
procedural history.

2 On October 4, 2010, Appellant entered Integrity Bank in York and gave the
teller a note that stated, “This isn’t a fucking game[.] [C]ount out 2500 20’s,
50’s and 100’s and know [sic] one will get hurt.” Affidavit of Probable Cause,
10/5/10. When the teller informed Appellant she did not have that much
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Appellant entered an open plea of nolo contendere3 on April 21, 2011, to one

count of robbery, 18 Pa.C.S. § 3701(a)(1)(ii). The trial court sentenced him

on June 22, 2011, to a term of incarceration of ten to twenty years. Appellant

did not file a direct appeal. Appellant filed a motion to modify sentence on

June 24, 2011, two days after being sentenced, which was docketed as “Pro

Se Correspondence.” Appellant also filed, pro se, a motion to withdraw his

guilty plea on July 7, 2011. Appellant’s Brief at 5. The docket entries indicate

its filing as follows: “Pro Se Correspondence, Comments: Request to W/D Plea,

Sent to DA and PD—Attny Thompson 7-8-11.”           Trial Court Docket Entries,

7/7/11.

       A prior panel of this Court continued the procedural history as follows:

              On June 27, 2011,[4] Appellant filed his first pro se [Post
       Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546]
       petition. Appointed counsel filed a supplemental petition on July
       26, 2011.[5] Following a hearing, the [PCRA] court denied the
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money, Appellant told her to “give him all the 20’s.” Id. Appellant directed
the teller to “remove all the wrappers from the cash.” Id. When the teller
gave Appellant the money, he fled on foot. Id.

3   “Nolo contendere” is a Latin phrase that means “I do not wish to
contend. . . . When a defendant enters a plea of nolo contendere, he
technically does not admit guilt. However, for purposes of a criminal case, a
plea of nolo contendere is equivalent to a plea of guilty. Commonwealth v.
Norton, ___ A.3d ___, ___n.1, 2019 WL 287153, at *1 n.1 (Pa. filed January
23, 2019).
4   Appellant filed the pro se PCRA petition five days after he was sentenced.

5 The PCRA petition challenged, inter alia, Appellant’s sentence and alleged
that his counsel had been ineffective in several respects, but the motion did
not assert ineffectiveness by counsel in failing to perfect an appeal. PCRA
Petition, 6/27/11, at ¶ 5.

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     petition. Appellant timely appealed. While Appellant’s appeal was
     still before this Court, Appellant filed his second and third PCRA
     petitions on September 7, 2011[,] and July 16, 2012, respectively.
     The PCRA court dismissed the petitions on the same day[] that
     they were filed for lack of jurisdiction due to the pending appeal.

           On April 23, 2012, this Court affirmed the PCRA court’s
     denial of Appellant’s first PCRA petition[,] and Appellant did not
     seek review in our Supreme Court. (See Commonwealth v.
     Grimes, 48 A.3d 483 (Pa. Super. 2012) (unpublished
     memorandum)). On August 23, 2012, Appellant filed his fourth
     PCRA petition[,] and the PCRA court sent Appellant a
     [Pa.R.Crim.P.] 907 notice of its intention to dismiss the petition
     because the issues raised therein already had been litigated and
     decided. On September 17, 2012, the PCRA court formally
     dismissed Appellant’s fourth PCRA petition on this basis.

            On September 28, 2012, Appellant filed his fifth pro se PCRA
     petition. The PCRA court forwarded a Rule 907 notice to Appellant
     on October 5, 2012, and denied Appellant’s petition on October
     29, 2012, on the bases that Appellant’s issues had been previously
     litigated and that he failed to demonstrate “that the proceedings
     resulting in his conviction were so unfair that a miscarriage of
     justice occurred which no civilized society can tolerate, or that he
     is innocent of the crimes charged.” (PCRA Court Rule 907 Notice,
     10/05/12, at unnumbered page 2 (citation omitted); see also
     PCRA Court Order, 10/29/12, at 1).

Commonwealth v. Grimes, 75 A.3d 553, 2026 MDA 2012 (Pa. Super. filed

April 12, 2013) (unpublished memorandum at 2–3) (footnote omitted).

Appellant filed a timely appeal to this Court, wherein we concluded the PCRA

petition was untimely and no exception to the time-bar applied. Thus, we

affirmed the order denying Appellant’s fifth petition on April 12, 2013.

Grimes, 75 A.3d 553.

     The ensuing procedural history continued as follows:

            On April 29, 2013, Appellant filed a federal Habeas Corpus
     Petition which was addressed by the Third Circuit Court of

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       Appeals.[6] The Third Circuit Court of Appeals initially denied the
       Habeas Petition but later remanded [to the District Court] for
       resolution of whether Appellant was entitled to have his direct
       appeal rights re-instated. On December 4, 2015, a hearing was
       held before Magistrate Judge Carlson, at which time the parties
       stipulated to re-instate Appellant’s direct appeal rights. As such,
       Magistrate Judge Carlson entered a Report and Recommendation
       that recommended that the District Court enter an Order
       approving the reinstatement of Appellant’s direct appeal rights.
       On January 4, 2016, District Judge Robert D. Mariani adopted
       Magistrate Judge Carlson’s recommendations and granted
       Appellant’s Habeas Corpus Petition.

Pa.R.A.P. 1925(a) Opinion, 1924 MDA 2016, 11/6/17, at 2–3.7

       Thus, following the federal court’s grant of Appellant’s habeas corpus

petition, the Commonwealth, on February 2, 2016, filed a motion to reinstate

Appellant’s direct appeal rights and to appoint counsel to assist Appellant in

its preparation.     The trial court granted the Commonwealth’s motion on

February 3, 2016, reinstated Appellant’s direct appeal rights, and appointed

Chris Moore, Esquire, as counsel. Appellant filed a timely notice of appeal to

this Court, docketed at 285 MDA 2016. For reasons not clear in the record,

the trial court removed Attorney Moore as counsel and appointed Jennifer



____________________________________________


6  In his habeas corpus petition challenging both his conviction and sentence,
Appellant “asserted that he did not raise these challenges because he ‘never
was able to have a direct appeal due to ineffective counsel waiving my
appellate rights.’ A third claim in the [habeas corpus] petition alleged an
[ineffective-assistance-of-trial-counsel] claim based on counsel’s failure to file
an appeal.” Grimes v. Superintendent Graterford SCI, 619 Fed.Appx.
146, 148 (3d Cir. 2015).

7 This subsequent appeal is identified and discussed infra. We utilize this trial
court opinion due to the procedural irregularities present in this case.

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Smith, Esquire, on March 24, 2016.         Attorney Smith filed an amended

Pa.R.A.P. 1925(b) statement on April 25, 2016, but failed to file an appellate

brief on Appellant’s behalf.   On October 6, 2016, this Court dismissed the

appeal docketed at 285 MDA 2016 because Attorney Smith failed to file an

appellate brief.

      On November 7, 2016, Appellant again filed a counseled petition to

reinstate appellate rights in which Attorney Smith explained that she

inadvertently failed to place this Court’s briefing schedule on her calendar.

Thus, counsel sought reinstatement of Appellant’s direct appeal rights, which

the trial court granted on November 9, 2016. Inexplicably, Appellant, pro se,

filed a PCRA petition seeking reinstatement of his appellate rights on

November 22, 2016. On November 29, 2016, the PCRA court dismissed the

petition as moot, noting that Attorney Smith had already filed both a notice of

appeal and a Pa.R.A.P. 1925(b) statement on November 23, 2016. Order,

11/29/16, at 1; Pa.R.A.P. 1925(a) Opinion, 11/6/17, at 1. This appeal was

docketed at 1924 MDA 2016. Unbelievably, inactivity again reared its ugly

head, and on March 19, 2018, this Court dismissed the appeal because

Attorney Smith again failed to file an appellate brief. Order, 3/19/18, at 1.

      On March 27, 2018, Appellant filed a pro se Memorandum of Law in

which he requested the appointment of new counsel. The PCRA court removed

Attorney Smith as counsel and appointed present counsel, Lori Yost, Esquire.

Order, 3/28/18, at 1; Order, 3/29/18, at 1.       The PCRA court reinstated


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Appellant’s direct appeal rights on March 28, 2018. Appellant filed another

PCRA petition on April 3, 2018, which the PCRA court dismissed on April 10,

2018, pointing out that because it had reinstated Appellant’s direct appeal

rights on March 28, 2018, the PCRA petition was premature.

      Attorney Yost filed the instant notice of appeal on April 27, 2018, at the

present docket number, 728 MDA 2018. Appellant filed a Pa.R.A.P. 1925(b)

statement on May 16, 2018, and the trial court filed its Rule 1925(a) opinion

on July 13, 2018.

      Appellant raises the following issues for our review:

      I. Whether the trial court abused its discretion in failing to rule
      on Appellant’s motion to withdraw his plea as Appellant’s plea was
      not knowing, voluntary and intelligent.

      II. Whether the trial court abused its discretion in failing to rule
      upon Appellant’s motion to modify sentence.

Appellant’s Brief at 4 (unnecessary capitalization omitted).

      In assessing challenges to the validity of a guilty plea, we are guided by

the following standard of review.    “Pennsylvania law makes clear that by

entering a plea of guilty, a 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. Monjaras-Amaya, 163 A.3d 466,

468 (Pa. Super. 2017); Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa.

Super. 2013). “Our law presumes that a defendant who enters a guilty plea

was aware of what he was doing. He bears the burden of proving otherwise.”

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

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(citation omitted).   Post-sentence motions for withdrawal “are subject to

higher scrutiny since courts strive to discourage entry of guilty pleas as

sentence-testing devices.” Commonwealth v. Kehr, 180 A.3d 754, 757 (Pa.

Super. 2018) (quoting Commonwealth v. Broaden, 980 A.3d 124, 129 (Pa.

Super. 2009)). A defendant has no absolute right to withdraw a guilty plea;

rather, the decision to grant such a motion lies within the sound discretion of

the trial court. Kehr, 180 A.3d at 757.

      Our Supreme Court recently discussed an appellant’s burden to show

that a trial court abused its discretion in a ruling:

            “When a trial court comes to a conclusion through the
      exercise of its discretion, there is a heavy burden on the appellant
      to show that this discretion has been abused.” Commonwealth
      v. Eichinger, 591 Pa. 1, 915 A.2d 1122, 1140 (2007) (citation
      omitted). An appellant cannot meet this burden by simply
      persuading an appellate court that it may have reached a different
      conclusion than that reached by the trial court; rather, to
      overcome this heavy burden, the appellant must demonstrate that
      the trial court actually abused its discretionary power. Id. “An
      abuse of discretion will not be found based on a mere error of
      judgment, but rather exists where the trial court has reached a
      conclusion which overrides or misapplies the law, or where the
      judgment exercised is manifestly unreasonable, or the result of
      partiality, prejudice, bias or ill-will.” Id. Absent an abuse of that
      discretion, an appellate court should not disturb a trial court’s
      ruling. Id.

Norton, ___ A.3d at ___, 2019 WL 287153 at *7.

      Furthermore, it is settled that:

      [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. Historically, Pennsylvania courts

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      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.

Lincoln, 72 A.3d at 609–610 (internal quotation marks and some citations

omitted) (emphasis added). For the following reasons, we conclude that a

challenge to the validity of Appellant’s plea is waived.

      As noted by the trial court:

      [Appellant’s] Motion (docketed as “correspondence”) was filed by
      him pro se at a time when he had legal counsel of record. On
      June 27, 2011, [Appellant] filed a pro se PCRA [petition] in which
      he requested that counsel be appointed for him. On July 6, 2011,
      the Trial Court granted [Appellant’s] request for appointed counsel
      and appointed Attorney William Graff to represent him.
      [Appellant’s] pro se Motion was filed on July 7, 2011. When a
      defendant is represented by counsel, he has no right to proceed
      as co-counsel in his own defense. See Commonwealth v. Williams,
      270 Pa. Super. 27, 410 A.2d 880 (1979).

Pa.R.A.P. 1925(a) Opinion, 7/13/18, at 2. The relevant docket entries indicate

that the pro se motion was forwarded to Appellant’s counsel of record.

Counsel, however, never timely filed a motion to withdraw the plea. As noted

above, in order to preserve an issue related to the validity of a guilty plea, an

appellant must either object during the colloquy or otherwise raise the issue

at the guilty plea hearing, the sentencing hearing, or through a post-sentence

motion. Lincoln, 72 A.3d at 609-610; see also Commonwealth v. Tareila,

895 A.2d 1266, 1270 n.3 (Pa. Super. 2006) (same); Pa.R.A.P. 302(a) (stating

that “[i]ssues not raised in the lower court are waived and cannot be raised




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for the first time on appeal”). Accordingly, Appellant has waived any challenge

to the validity of his guilty plea.8

       Even if not waived, we would find that the issue lacks merit. The post-

sentencing standard applicable to post-sentence motions to withdraw a plea

requires manifest injustice. Kehr, 180 A.3d at 757. “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.” Id. In order to ensure a

voluntary, knowing, and intelligent plea, trial courts, “[a]t a minimum . . .

should ask questions to elicit the following information:”

       1)   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 a 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?

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8  Appellant’s argument in his brief is also lacking, which solidifies our finding
of waiver. He asserts that his plea was not entered knowingly, voluntarily, or
intelligently, but he fails to assert any relevant law in support. Appellant’s
Brief at 13–15. See Pa.R.A.P. 2119(a) (providing that appellate briefs must
contain “such discussion and citation of authorities as are deemed pertinent”);
Commonwealth v. Woodard, 129 A.3d 480 (Pa. 2015) (same);
Commonwealth v. Samuel, 102 A.3d 1001 (Pa. Super. 2014) (holding issue
waived where the only case law cited in support of claim was the standard of
review).

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      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?

Pa.R.Crim.P. 590 cmt.; Commonwealth v. Pollard, 832 A.2d 517, 522–523

(Pa. Super. 2003).

      As this Court has explained:

      In order for a guilty plea to be constitutionally valid, the guilty
      plea colloquy must affirmatively show that the defendant
      understood what the plea connoted and its consequences. This
      determination is to be made by examining the totality of the
      circumstances surrounding the entry of the plea. Thus, even
      though there is an omission or defect in the guilty 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.

Yeomans, 24 A.3d at 1047. Additionally, a written plea colloquy that is read,

completed, signed by the defendant, and made part of the record may serve

as the defendant’s plea colloquy when supplemented by an oral, on-the-record

examination.    Commonwealth v. Morrison, 878 A.2d 102, 108-109 (Pa.

Super. 2005) (citing Pa.R.Crim.P. 590 cmt.). Appellant bears the burden of

proving that he was not aware of what he was doing when he entered his plea.

Pollard, 832 A.2d at 523 (internal citation omitted).

      “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.”   Commonwealth v. Rush, 909 A.2d 805, 808 (Pa. Super.

2006). “A person who elects to plead guilty is bound by the statements he

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makes in open court while under oath and may not later assert grounds for

withdrawing the plea which contradict the statements he made at his plea

colloquy.” Yeomans, 24 A.3d at 1047.

        Here, the record belies Appellant’s assertion that his plea was entered

involuntarily, unknowingly, and unintelligently. Appellant focuses on the fact

that he did not understand the sentencing guideline ranges applicable to the

charge to which he was pleading. Appellant’s Brief at 13. When he raised this

concern at the plea colloquy, however, both the trial court and defense counsel

answered Appellant. N.T. (Nolo Contendere Plea), 4/21/11, at 3–4.

        Appellant also asserts that he understood the charge to which he was

pleading, but professed that he “never commit[ted] any serious bodily

injuries.” Appellant’s Brief at 14; N.T. (Nolo Contendere Plea), 4/21/11, at 4.

The trial court responded, “They are not saying you committed it. They are

saying it was your intent to put the person in fear of imminent serious bodily

injury.” N.T. (Nolo Contendere Plea), 4/21/11, at 4. Thereafter, the trial court

clarified that the plea was not a guilty plea, but one of nolo contendere, or no

contest, because Appellant “won’t admit that you committed the offense.” Id.

at 5.

        Appellant executed a written plea agreement that advised him of all

criteria outlined under Pa.R.Crim.P. 590 and indicated that Appellant entered

the plea knowingly and voluntarily. Appellant completed the lengthy written

colloquy by initialing each page. Colloquy, 4/21/11, at 1–11. When Appellant


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stopped initialing because he had a question, the trial court went through the

written colloquy page by page, pausing to ask Appellant if he understood every

concept. N.T. (Nolo Contendere Plea), 4/21/11, at 3–8.

      Second, the trial court conducted a lengthy oral plea colloquy with

Appellant. N.T. (Nolo Contendere Plea), 4/21/11, at 2–9. The court answered

every question Appellant raised and offered Appellant more time to decide

whether to proceed. Id. at 3. After the oral colloquy, the trial court, satisfied

that Appellant’s plea was being entered voluntarily, knowingly, and

intelligently, accepted Appellant’s plea. Id. at 8. As this Court has explained,

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

part of the record may serve as the defendant’s plea colloquy when

supplemented by an oral, on-the-record examination. Morrison, 878 A.2d at

108-109. Considering the totality of circumstances surrounding the plea, the

evidence reflects that Appellant knowingly, voluntarily, and intelligently

entered his plea, and Appellant has failed to carry the burden of establishing

otherwise.   Pollard, 832 A.2d at 523.        Accordingly, were we to consider

Appellant’s claim, we would deem it to lack merit.

      Appellant has abandoned his second issue claiming the trial court

abused its discretion in failing to rule upon Appellant’s motion to modify

sentence. Appellant’s Brief at 16. He acknowledges that Pa.R.Crim.P. 720

provides, “If the judge fails to decide the [post-sentence] motion within 120

days . . . the motion shall be deemed denied by operation of law.”


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Pa.R.Crim.P. 720(B)(3)(a).      Thus, he asserts the issue is withdrawn.

Therefore, we do not consider the claim further. Commonwealth v. Bullock,

948 A.2d 818, 823 (Pa. Super. 2008) (the appellant abandoned the contention

set forth in statement of issues).

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/27/2019




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