J-S38015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JULIA KINNEY                               :
                                               :
                       Appellant               :   No. 2395 EDA 2018

        Appeal from the Judgment of Sentence Entered January 11, 2018
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0007870-2014


BEFORE:      OTT, J., DUBOW, J., and COLINS, J.

MEMORANDUM BY OTT, J.:                                 FILED AUGUST 29, 2019

        Julia Kinney appeals from the judgment of sentence entered on January

11, 2018, in the Philadelphia County Court of Common Pleas.1 The trial court

imposed a sentence following Kinney’s open guilty plea to one count each of

aggravated assault and possession of an instrument of crime (“PIC”). 2 On

appeal, Kinney contends the trial court erred in denying her pre-sentence

motion to withdraw her guilty plea and challenges the discretionary aspects of

sentence. For the reasons below, we affirm.


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   Retired Senior Judge assigned to the Superior Court.

1 The exact terms of the sentence are in dispute and we will discuss the issue
later in the memorandum.

2   18 Pa.C.S. § 2702(a)(1) and 970(a), respectively.
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        We take the underlying facts and procedural history in this matter from

our review of the certified record.            On April 1, 2014, Kinney and her co-

defendant, Chonice Martin, engaged in a physical altercation with two other

people from their neighborhood, Antoinette Mitchell and her 14-year-old-

sister, C.S.3 During the fight, Martin stabbed Mitchell twice, once under the

armpit and once in the back. Kinney attacked C.S. with a pipe, hitting her

over the left eye.       At some point, Martin dropped her knife and Kinney

retrieved it and stabbed the injured and incapacitated Mitchell in the right

shoulder. The police responded, arrested Kinney and Martin, and recovered a

bloody knife from the scene.4

        On July 13, 2017, both defendants entered open guilty pleas. In return

for her plea to the aforementioned charges, the Commonwealth dropped one

count each of aggravated assault with respect to victim C.S., simple assault,

recklessly endangering another person, and conspiracy.5             During the plea

hearing, the following exchange occurred:

              COMMONWEALTH:        Yes.   [Mitchell] would testify that
        [Martin] stabbed her twice, and [Kinney], after [Martin] stabbed
        her, stabbed her once.


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3   We will use the initials, “C.S.” because she is a minor.

4 Mitchell spent four days in the hospital. She needed a chest tube inserted
because of the incident. The hospital also admitted C.S., who needed two
stitches over her eye.

5   18 Pa.C.S. §§ 2702(a), 2701(a), 2705, and 903, respectively.


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              THE COURT: Where?

              COMMONWEALTH: In the right shoulder.

              THE COURT: I think we left with Ms. Kinney. Is that an
        accurate statement of what happened?

              DEFENDANT KINNEY: 1 (sic) yes.

              THE COURT: And you understand that you are under oath.
        If you come back some day and you say I just said it was a fairly
        accurate statement, but here are all the things wrong with it, no
        one will believe that. They’re going to say that you were under
        oath today, not under the influence of drugs or medicine, no
        promises were made, no threats were made, you were sitting here
        with your lawyer. And so today when you say, yes that’s an
        accurate statement, you’re going to be stuck with that, do you
        understand that?

              DEFENDANT KINNEY: 1 (sic) yes, Your Honor.

N.T. Guilty Plea Hearing, 7/13/2017, at 16-17.

        On January 11, 2018, Kinney filed a motion to withdraw her guilty plea.6

The only contention raised in her motion to withdraw was a bald statement

that she was now “assert[ing] her innocence.” Motion to Withdraw Guilty Plea,

1/11/2018, at 1.

        At sentencing, defense counsel initially acknowledged that he had filed

a motion to withdraw the guilty plea on behalf of Kinney, but stated that she

was willing to admit to an aggravated assault on C.S. She denied her guilt

with respect to an aggravated assault on Mitchell.             N.T. Sentencing,

1/11/2018, at 4-14. When the trial court read from the notes of testimony at


____________________________________________


6   Counsel also filed a motion to withdraw but did not further pursue it.

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the guilty plea hearing as quoted above, counsel stated Kinney believed that,

at the time of the guilty plea hearing, she suffered from post-partum

depression and post-traumatic stress disorder (“PTSD”) and that this

somehow led her to plead guilty to assault on the wrong victim. See id. The

Commonwealth and defense counsel then came to an agreement to amend

the indictment to allow Kinney to plead guilty to aggravated assault of C.S.

only. See id. However, at that point, Kinney again changed her story, stating,

“I don’t know if it was her [C.S.,] that was hit, but I was being jumped. So I

did assault somebody. Whoever came my way[.]” Id. at 15. Ultimately,

after the Commonwealth argued it would be prejudiced if Kinney was allowed

to withdraw her guilty plea, the trial court denied the motion. Id. at 15-18.

       After receipt of a pre-sentence investigation report (“PSI”), the trial

court sentenced Kinney to a term of 5 to 10 years’ imprisonment, followed by

an aggregate consecutive term of 5 years’ probation.7 Id. at 45. However,

the sentencing order incorrectly listed the sentence as a term of 4 to 10 years’

imprisonment. Order of Sentence, 1/11/2018, at 1.

       On January 22, 2018, Kinney filed a motion for reconsideration of

sentence. The trial court denied the motion on May 15, 2018. The instant,

timely appeal followed. On June 19, 2018, the trial court directed Kinney to




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7In its Rule 1925(a) opinion, the trial court incorrectly states that the term of
probation was 10 years. Trial Court Opinion, 2/28/2019, at 2.

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file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b).

      Subsequently, on October 4, 2018, trial counsel filed a motion to

withdraw in this Court, which we granted. We remanded the matter to the

trial court to determine Kinney’s eligibility for appointment of new counsel.

On November 28, 2018, new counsel filed a concise statement. On February

13, 2019, the trial court issued a corrective order with respect to the length

of Kinney’s sentence. On February 28, 2019, the trial court issued a Pa.R.A.P.

1925(a) opinion.

      In her first issue on appeal, Kinney contends the trial court erred in

denying her pre-sentence motion to withdraw her guilty plea. Kinney’s Brief,

at 4. On appeal, Kinney abandons her claim of actual innocence and, instead,

asserts:   (1) she had a viable justification defense; (2) she had viable

competency and diminished capacity defenses; and (3) the Commonwealth

failed to show it would suffer prejudice by the withdrawal. Kinney’s Brief, at

8-11. We disagree.

      In Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015), the

Pennsylvania Supreme Court held that while a trial court liberally should allow

a pre-sentence motion to withdraw a guilty plea,

      there is no absolute right to withdraw a guilty plea; trial courts
      have discretion in determining whether a withdrawal request will
      be granted; such discretion is to be administered liberally in favor
      of the accused; and any demonstration by a defendant of a fair-
      and-just reason will suffice to support a grant, unless withdrawal
      would work substantial prejudice to the Commonwealth.

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Carrasquillo, supra at 1291–1292 (footnote omitted).             The necessary

inquiry “on consideration of such a withdrawal motion is whether the accused

has made some colorable demonstration, under the circumstances, such that

permitting withdrawal of the plea would promote fairness and justice.” Id. at

1292.

        Here, the record reflects Kinney never demonstrated that permitting her

to withdraw her guilty plea would “promote fairness and justice.” Id. at 1292.

Rather, the record reflects the opposite. The incident in the instant matter

took place on April 1, 2014; however, Kinney did not plead guilty until July

13, 2017, over three years later. Thus, Kinney had many opportunities to

reflect on what, if any defenses, she had to the charges. Moreover, sentencing

did not take place until January 11, 2018, approximately six months after her

guilty plea. At no point during that interim period did Kinney seek to withdraw

her guilty plea. It was not until the day of sentencing that she filed her motion

to withdraw, which as noted above, maintained a bald assertion of actual

innocence, not a claim that she had viable defenses to the charges.         See

Motion to Withdraw Guilty Plea, 1/11/2018, at 1. However, Kinney has since

abandoned that assertion of actual innocence on appeal. Kinney’s Brief, at 8-

11.

        To the extent Kinney now claims the trial court should have allowed her

to withdraw her guilty plea because she had viable defenses of diminished

capacity and competency, she has waived the claim. See Kinney’s Brief, at

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10. Kinney did not raise this contention in her written motion to withdraw her

guilty plea. Moreover, while she contends on appeal that she orally raised this

issue at sentencing, the record belies the claim.             As noted above, counsel

stated Kinney told him she was suffering from PTSD and post-partum

depression at the guilty plea colloquy, not at the time of the incident.8 N.T.

Sentencing, 1/11/2018, at 5, 8-9.              Counsel offered this information in an

attempt to explain Kinney’s disavowal of her sworn statements at the plea

hearing, not as a possible defense for the crimes. See id. Moreover, counsel

did not offer any objective evidence to support Kinney’s statements. During

her allocution, Kinney brought up her history of mental health issues, but,

again, offered it as an explanation for her conduct during the guilty plea

hearing and in support of her plea for mitigation of the sentence. Id. at 40-

41. There is nothing in the transcript that demonstrates that she ever raised

this issue in the trial court with respect to the withdrawal of her guilty plea.

See id. at 5, 8-9, 40-41.

       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.”



____________________________________________


8 The incident that led charges to took place in 2014, the guilty plea hearing
took place in 2017. The record reflects that, at the time of sentencing, Kinney
had two children, ages 5 months and 14 years. N.T. Sentencing, 1/11/2018,
at 35. Thus, it is unlikely that Kinney was suffering from post-partum
depression at the time of the incident.

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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”). Therefore, because Kinney did not raise this issue below, she waived

it.9

       Kinney also contends the trial court should have permitted her to

withdraw her guilty plea because she had a viable justification defense.

Kinney’s Brief, at 10. Again, we note that Kinney did not raise this claim in

her written motion to withdraw her guilty plea. Moreover, the record does not

substantiate her characterization that she raised this claim at the sentencing

hearing as grounds to withdraw her guilty plea. Instead, the record reflects

she first mentioned that she “was being jumped” in an attempt to explain why

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9 In her concise statement, Kinney did not claim she had a viable mental health
defense, but rather, that she should have been allowed to withdraw her plea
because she was suffering from unspecified “mental health conditions” at the
time of the incident. Statement of Matters Complained of on Appeal, Pursuant
to Pennsylvania Rule of Appellate Procedure, 1925(B), 11/28/2018, at 1.
First, as noted above, this is not an accurate account of Kinney’s remarks at
sentencing. Second, an appellant cannot raise issues for the first time in a
Rule 1925(b) statement. See Commonwealth v. Coleman, 19 A.3d 1111,
1118 (Pa. Super. 2011) (issues raised for first time in Rule 1925(b) statement
are waived).




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she was no longer willing to change her guilty plea to an assault on C.S., not

as grounds to withdraw her guilty plea as to assault on Mitchell. See N.T.

Sentencing, 1/11/2018, at 15. Further, Kinney never mentioned justification

as grounds to withdraw her plea but only brought it up again, in a somewhat

muddled manner, while asking for mitigation during allocution. Id. at 40-41.

Therefore, we find that Kinney waived this claim.           See Baez, supra,

Coleman, supra, Santiago, supra.10

       Here, the record reflects that Kinney abandoned her claim of actual

innocence, and her remaining arguments for withdrawing her guilty plea are

both waived and meritless.           Therefore, because she never made “some

colorable demonstration, under the circumstances, such that permitting

withdrawal of the plea would promote fairness and justice[,]” we need not



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10 Even if Kinney had not waived the claim, it would not constitute a fair and
just reason for withdrawal of her guilty plea. At the guilty plea hearing, Kinney
admitted that she picked up Martin’s knife, advanced at Mitchell, who was
lying injured on the ground, and stabbed her in the shoulder. N.T. Guilty Plea
Hearing, 7/13/2017, at 13-16. We previously have held that a “defendant is
bound by statements [she] makes during plea colloquy, and may not assert
grounds for withdrawing plea that contradict statements made when [she]
pleaded guilty.” Commonwealth v. Reid, 117 A.3d 777, 783-784 (Pa.
Super. 2015) (citation omitted). Moreover, this Court has also distinguished
between claims of actual innocence and assertions of possible defenses,
holding that the later does not constitute a fair and just reason for withdrawing
a guilty plea. See Commonwealth v. Kay, 478 A.2d 1366, 1369 (Pa. Super.
1984) (appellant’s claim that court did not apprise him of all possible defenses
he could have asserted not grounds for pre-sentence withdrawal of guilty
plea); Commonwealth v. Dorian, 460 A.2d 1121, 1123 (Pa. Super. 1983)
(distinguishing between claim of actual innocence and claim of possible
defense to charge).

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address her contention that the Commonwealth failed to show substantial

prejudice. Carrasquillo, supra at 1292. Kinney’s first issue does not merit

relief.

          In her second issue, Kinney challenges the discretionary aspects of her

sentence. See Kinney’s Brief, at 11-15. Prior to discussing the merits of her

claim, we must first resolve the dispute between the trial court and parties

regarding her sentence. As discussed above, there is a discrepancy between

the sentence announced at the sentencing hearing and the original sentencing

order. The trial court believes it resolved the matter by issuing a corrective

order and, therefore, Kinney’s sentence is 5 to 10 years’ imprisonment. The

parties disagree. The Commonwealth, in particular, contends the trial court

lacked the authority to correct the sentence pursuant to Pennsylvania Rule of

Appellate Procedure 1701(c),11 and, therefore, Kinney’s sentence is 4 to 10

years’ imprisonment. See Commonwealth’s Brief, at 4.

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11   Pennsylvania Rule of Appellate Procedure 1701 provides, in pertinent part:

          (a) General rule. Except as otherwise prescribed by these rules,
          after an appeal is taken or review of a quasijudicial order is
          sought, the trial court or other government unit may no longer
          proceed further in the matter.

          (b) Authority of a trial court or agency after appeal. After an
          appeal is taken or review of a quasijudicial order is sought, the
          trial court or other government unit may:

            (1)   Take such action as may be necessary to preserve the
                  status quo, correct formal errors in papers relating to



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       This Court has stated:

       [A] trial court has the inherent, common-law authority to correct
       clear clerical errors in its orders. Commonwealth v. Borrin,
       2011 PA Super 10, 12 A.3d 466, 471 (Pa. Super. 2011)(en banc)
       (citation omitted), affirmed, 622 Pa. 422, 80 A.3d 1219 (Pa. 2013)
       (opinion announcing judgment). This authority exists even after
       the 30-day time limitation for the modification of orders expires.
       Id., citing 42 Pa.C.S.A. § 5505. We have previously concluded
       that a clear clerical error exists on the face of the record when a
       trial court’s intentions are clearly and unambiguously declared
       during the sentencing hearing[.] Borrin, supra at 473; see also
       Commonwealth v. Holmes, 593 Pa. 601, 933 A.2d 57, 67 (Pa.
       2007) (concluding the limited, inherent judicial power of the court
       to correct patent errors arise in cases involv[ing] clear errors in
       the imposition of sentences that [are] incompatible with the
       record). When this situation arises, the sentencing order [is]
       subject to later correction. Borrin, supra at 473. Accordingly,
       an oral sentence which is on the record, written incorrectly by the
       clerk of courts, and then corrected by the trial judge, is [] a clerical
       error. Id. at 474, quoting Commonwealth v. Kubiac, 379 Pa.
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                 the matter, cause the record to be transcribed,
                 approved, filed and transmitted, grant leave to appeal
                 in forma pauperis, grant supersedeas, and take other
                 action permitted or required by these rules or
                 otherwise ancillary to the appeal or petition for review
                 proceeding.

                                               ****

       (c) Limited to matters in dispute. Where only a particular item,
       claim or assessment adjudged in the matter is involved in an
       appeal, or in a petition for review proceeding relating to a
       quasijudicial order, the appeal or petition for review proceeding
       shall operate to prevent the trial court or other government unit
       from proceeding further with only such item, claim or assessment,
       unless otherwise ordered by the trial court or other government
       unit or by the appellate court or a judge thereof as necessary to
       preserve the rights of the appellant.

Pa.R.A.P. 1701(a), (b)(1), and (c).


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      Super. 402, 550 A.2d 219, 231 (Pa. Super. 1988), appeal denied,
      522 Pa. 611, 563 A.2d 496 (Pa. 1989).

Commonwealth v. Thompson, 106 A.3d 742, 766 (Pa. Super. 2014)

(quotation marks omitted), appeal denied, 134 A.3d 56 (Pa. 2015), cert.

denied, 137 S.Ct. 106 (2016).

      Here, the notes of testimony clearly reflect that the trial court sentenced

Kinney to 5 to 10 years’ imprisonment. N.T. Sentencing, 1/11/2018, at 45.

There is no ambiguity in this sentence and the initial sentencing order is plainly

a clerical error. Pursuant to Pa.R.A.P. 1701(b)(1), regardless of the fact that

the matter was on appeal, the trial court had the inherent authority to correct

the error.    See Thompson, supra.            Moreover, we disagree with the

Commonwealth that Pa.R.A.P. 1701(c) precluded the correction. The issue on

appeal is not the length of sentence but the discretionary aspects of sentence.

The trial court’s corrective order did not resolve that issue; it merely corrected

a clerical error. Accordingly, we find that Kinney’s sentence is 5 to 10 years’

imprisonment. We will now address the merits of her challenge.

      This Court has stated:

      [t]here is no absolute right to appeal when challenging the
      discretionary aspect of a sentence.     Rather, an [a]ppeal is
      permitted only after this Court determines that there is a
      substantial question that the sentence was not appropriate under
      the sentencing code. In determining whether a substantial
      question exists, this Court does not examine the merits of the
      sentencing claim.

      In addition, issues challenging the discretionary aspects of a
      sentence must be raised in a post-sentence motion or by
      presenting the claim to the trial court during the sentencing

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      proceedings. Absent such efforts, an objection to a discretionary
      aspect of a sentence is waived. Furthermore, a defendant is
      required to preserve the issue in a court-ordered Pa.R.A.P.
      1925(b) concise statement and a Pa.R.A.P. 2119(f) statement.

Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (en

banc) (citations and quotation marks omitted).

      Here, Kinney preserved her claim by filing a motion to modify sentence,

and by raising it in her Rule 1925(b) statement. While she has included a

Pa.R.A.P. 2119(f) statement in her brief, it consists of boilerplate language on

the standard of review and does not specify how her sentence is improper

under the sentencing court. However, the Commonwealth has not objected

to the statement and we are able to discern the nature of Kinney’s claim from

her argument. Kinney complains the trial court failed to consider mitigating

circumstances, namely: (1) her prior record score was zero; (2) she accepted

responsibility for her actions; (3) she has young children; (4) she had a

difficult background and history of mental health issues; and (5) the incident

arose out of a street brawl. Kinney’s Brief, at 13-15.

      This claim fails to raise a substantial question.   Commonwealth v.

Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (citation omitted). (“An

allegation the sentencing court failed to consider certain mitigating factors

generally does not necessarily raise a substantial question.”). In any event,

we note that the court had the benefit of a pre-sentence investigation report.

“Where pre-sentence reports exist, we shall continue to presume that the

sentencing judge was aware of relevant information regarding the defendant’s

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character and weighed those considerations along with mitigating statutory

factors.” Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). Kinney’s

claim does not merit relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/29/19




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