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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                            :
                                               :
                                               :
    ANGELO QUINCELL BROWN                      :
                                               :
                       Appellant               :   No. 1133 EDA 2017

            Appeal from the Judgment of Sentence January 30, 2017
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0004601-2016


BEFORE:        OTT, J., NICHOLS, J., and STRASSBURGER, J.

MEMORANDUM BY OTT, J.:                                   FILED APRIL 03, 2019

        Angelo Quincell Brown appeals from the judgment of sentence imposed

on January 30, 2017, in the Court of Common Pleas of Delaware County,

following his negotiated guilty plea to one count each of robbery, conspiracy,

and possession of a controlled substance.1 In accordance with the terms of

the    plea,   Brown    received    an   aggregate   sentence   of   4–23   months’

incarceration, with immediate release to electronic home monitoring.

        On February 8, 2017, Brown filed a timely post-sentence motion to

withdraw his guilty plea. The trial court denied the motion on February 27,


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   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 3701 and 903, respectively, and 35 P.S. § 780-113.
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2017. The instant appeal followed.2 On appeal, Brown claims that the trial

court erred as a matter of law in denying his motion for leave to withdraw his

guilty plea. Following a thorough review of the submissions by the parties,

relevant law, and the certified record, we affirm.

       Our standard of review for the denial of a post-sentence motion to

withdraw a guilty plea is well settled.          “[A] defendant who attempts to

withdraw a guilty plea after sentencing must demonstrate prejudice on the

order of manifest injustice before withdrawal is justified.       A showing of

manifest injustice may be established if the plea was entered into

involuntarily,    unknowingly,      or   unintelligently.”   Commonwealth    v.

Yeomans, 24 A.3d 1044, 1046 (Pa. Super. 2011) (citation and internal

quotation marks omitted). “The law does not require that appellant be pleased

with the outcome of his decision to enter a plea of guilty[.]” Commonwealth

v. Yager, 685 A.2d 1000, 1004 (Pa. Super. 1996) (en banc), appeal denied,

701 A.2d 577 (Pa. 1997) (citation omitted). Further, when a defendant has

entered a guilty plea, we presume that he was aware of what he was doing;

it is his burden to prove that the plea was involuntary. Commonwealth v.

McCauley, 797 A.2d 920, 922 (Pa. Super. 2001). Accordingly, where the

record clearly shows the court conducted a guilty plea colloquy and that the



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2Brown filed a timely concise statement of errors complained of on appeal in
accordance with Pennsylvania Rule of Appellate Procedure 1925(b) on March
29, 2017.

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defendant understood the nature of the charges against him, the plea is

voluntary. Id. In examining whether the defendant understood the nature

and consequences of his plea, we look to the totality of the circumstances.

Id. At a minimum, the trial court must inquire into the following six areas:

     (1)   Does the defendant understand the nature of the charges to
           which he is pleading guilty?

     (2)   Is there a factual basis for the plea?

     (3)   Does the defendant understand that he has a right to trial
           by jury?

     (4)   Does the defendant understand that he is presumed
           innocent until he is found guilty?

     (5)   Is the defendant aware of the permissible ranges of
           sentences and/or fines for the offenses charged?

     (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?

Id. (citation omitted).   This examination may be conducted by defense

counsel or the attorney for the Commonwealth, as permitted by the Court.

See Pa.R.Crim.P. 590, Comment. Additionally, the examination may consist

of both a “written colloquy that is read, completed, signed by the defendant,

and made part of the record,” and an on-the-record oral examination. Id.

     Here, Brown claims that, during the oral plea colloquy, neither the trial

court nor defense counsel made him aware that, “he was innocent until proven

guilty nor that the [j]udge [was] not bound by the terms of any plea

agreement tendered unless the judge accepts such agreement.”          Brown’s


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Brief, at unnumbered page 9. However, Brown has waived this claim because

he neither raised it in his motion to withdraw his guilty plea nor in his Rule

1925(b) statement.

      We have long held that, “issues, even those of constitutional dimension,

are waived if not raised in the trial court. A new and different theory of relief

may   not   be   successfully   advanced    for   the   first   time   on   appeal.”

Commonwealth v. Santiago, 980 A.2d 659, 666 (Pa. Super. 2009)

(citations omitted), appeal denied, 991 A.2d 312 (Pa. 2010), cert. denied, 562

U.S. 866 (2010); see also Commonwealth v. Baez, 169 A.3d 35, 41 (Pa.

Super. 2017) (finding waiver where appellant raised issues not raised in his

motion to withdraw guilty plea on appeal); Pa.R.A.P. 302(a) (“Issues not

raised in the lower court are waived and cannot be raised for the first time on

appeal”).

      Moreover, as amended in 2007, Pennsylvania Rule of Appellate

Procedure 1925 provides that issues that are not included in the Rule 1925(b)

statement or raised in accordance with Rule 1925(b)(4) are waived.              See

Pa.R.A.P. 1925(b)(4)(vii); see also Commonwealth v. Heggins, 809 A.2d

908, 911 (Pa. Super. 2011), appeal denied, 827 a2d 430 (Pa. 2003) (“[A Rule

1925(b)] [s]tatement which is too vague to allow the court to identify the

issues raised on appeal is the functional equivalent to no [c]oncise [s]tatement

at all.”); Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998), superseded




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by rule on other grounds as stated in Commonwealth v. Burton, 973 A.2d

428, 431 (Pa. Super. 2009).

      Here, the issues in Brown’s motion for leave to withdraw his guilty plea,

those raised in his Rule 1925(b) statement, and those argued in his appellate

brief differ significantly.   His motion for leave to withdraw his guilty plea

presents the following issues:

      a. His plea was not knowingly, voluntarily, and intelligently made;

      b. He did not have the full benefit of competent legal counsel;

      c. He now asserts his legal innocence;

      d. He was unduly pressured by his less than competent legal
         counsel to enter into the negotiated [g]uilty [p]lea; and

      e. He was pressured/forced into entering a negotiated [g]uilty
         [p]lea by the [trial c]ourt.

Motion for Leave to Withdraw Guilty Plea Post Sentence, 2/08/2017, at

unnumbered page 2.        His Rule 1925(b) statement presents the following

claims:

             1. That [Brown] was not fully explained his the (sic) rights
      that he has and is giving up prior to entering into a negotiated
      guilty plea via the [g]uilty [p]lea [s]tatement.

             2. That [Brown] was not made fully aware of the effects that
      a [felony] would have on him outside of his case and if he would
      have known same, he would not have entered into the negotiated
      guilty plea.

Rule 1925(b) Statement, 3/29/2017, at unnumbered page 1.

      It was not possible for the trial court to discern from Brown’s vague

motion and Rule 1925(b) statement that he was raising the very specific claim

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raised in his appeal. We note that the trial court did not address Brown’s

current claim in its Rule 1925(a) opinion, presumably because it was unable

to discern it from Brown’s pleadings.          Accordingly, we find that Brown has

waived his claim for purposes of our review. See Baez, supra; Heggins,

supra.

       Moreover, even if we were to address Brown’s claim on the merits, it

would fail. In his brief, Brown admits that, while the trial court and/or defense

counsel did not state that he was innocent until proven guilty and that the

judge was not bound by the terms of the plea agreement3 during his oral guilty

plea colloquy, both issues were discussed in the written guilty plea colloquy

which Brown signed.         See Brown’s Brief, at 10.       In his underdeveloped

argument, Brown provides no legal support for his contention that a defendant

must be informed of each of the six areas both in writing and verbally in order

for his guilty plea colloquy to be adequate. See id. at 10-11. Neither the

language of Rule 590 nor the Comment thereto require that the oral colloquy

be a verbal repetition of all of the information contained in the written plea

colloquy as maintained by Brown. See Pa.R.Crim.P. 590, Comment.

       In light of the foregoing, Brown is not entitled to relief.

       Judgment of sentence affirmed.




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3We note that the trial court did sentence Brown in accordance with the terms
of his plea agreement.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/3/19




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