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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                      :
                                              :
M. PATRICK HAUGH,                             :         No. 1968 WDA 2013
                                              :
                           Appellant          :


            Appeal from the Judgment of Sentence, October 31, 2013,
             in the Court of Common Pleas of Westmoreland County
               Criminal Division at Nos. CP-65-CR-0000876-2013,
               CP-65-CR-0000877-2013, CP-65-CR-0002418-2012


BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OLSON, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED FEBRUARY 10, 2015

       Appellant, M. Patrick Haugh, appeals from the judgment of sentence of

October 31, 2013, entered in the Court of Common Pleas of Westmoreland

County. We affirm.

       On April 9, 2013, before the Honorable Debra Ann Pezze, appellant

entered a general guilty plea on three separate cases to the following

charges: person not to possess a firearm, unsworn falsification, one count

each   of    terroristic   threats,    recklessly   endangering   another   person,

aggravated assault, two counts of disarming a law enforcement officer

without lawful authorization, one count of resisting arrest, criminal mischief,

and disorderly conduct. An on-the-record colloquy occurred where the court

identified each count, explained the maximum penalties he could receive,
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and described the incidents which gave rise to each respective charge. For

each count, appellant stated that he was pleading guilty.             Sentencing was

deferred pending the completion of a pre-sentence report.

         On October 31, 2013, appellant appeared for a sentencing hearing

before the Honorable Richard E. McCormick.1 The victim in one of the cases

took the stand and gave a statement.                   After affording appellant an

opportunity to address the court, Judge McCormick sentenced him to an

aggregate term of 42 to 84 months’ incarceration with credit for any time

served, no contact with the victims, forfeiture of the firearm, as well as costs

and restitution.

         On November 6, 2013, a timely pro se motion to withdraw his guilty

pleas     was   filed   as   well   as   a   request   for   court-appointed   counsel.

Judge McCormick held a hearing on December 5, 2013, and appellant was

represented by David J. Eckle, Esq. Thereafter, Judge McCormick denied the

motion and granted defense counsel leave to withdraw his appearance.2

(See docket #29.) On December 9, 2013, a pro se notice of appeal was

filed.    (Docket #30.)        Subsequently, a Grazier3 hearing was held on

March 28, 2014, at which time the court appointed James M. Fox, Esq., to



1
    Judge Pezze was on a leave of absence for medical reasons.
2
  The record indicates that appellant was unwilling to leave the courtroom
and had to be carried out by sheriffs. (Notes of testimony, 12/5/13 at 9.)
3
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).


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J. S76006/14


represent appellant for purposes of appeal.            Counsel filed a concise

statement of matters complained of on appeal pursuant to Pa.R.A.P.

1925(b), and on May 29, 2014, Judge McCormick issued a Rule 1925(a)

opinion.

      Appellant presents the following issues on appeal:

            I.     The Appellant’s guilty plea was not knowingly,
                   voluntarily, and intelligently entered for the
                   following reasons:

                   a.     Counsel for the Appellant did not
                          review the charges with the
                          Appellant, possible defenses that
                          could be raised or the sentencing
                          guidelines   applicable     to  the
                          offenses thereby preventing the
                          Appellant from entering a knowing,
                          voluntary and intelligent plea;

                   b.     The     Appellant  expressed     an
                          intention, prior to sentencing, to
                          withdraw his guilty plea by writing
                          a letter to the Honorable Debra A.
                          Pezze wherein he informed the
                          court that he did not believe he
                          should be pleading guilty.

                   II.    The Appellant’s guilty plea was
                          deficient    and   not     knowingly,
                          voluntarily,     and     intelligently
                          entered as the lower court failed,
                          at the time of the guilty plea
                          colloquy, and at sentencing, to
                          advise    the    Appellant   of    his
                          post-sentence appeal rights as a
                          result of the entry of the guilty
                          plea.

Appellant’s brief at 2.



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      Appellant first argues that guilty plea counsel did not review the

charges with him, possible defenses that could be raised, or the sentencing

guidelines applicable to the offenses, thereby preventing him from entering

a knowing, voluntary, and intelligent plea. (Appellant’s brief at 6.) After a

thorough review of the record, appellant’s brief, the relevant law, and the

well-reasoned opinion of the trial court, we find this argument to be without

merit. Because the trial court’s opinion adequately and accurately disposes

of this issue, we affirm on the basis of that opinion. (See trial court opinion,

5/29/14 at 1-2.)

      Next, appellant argues that he “expressed an intention, prior to

sentencing, to withdraw his plea by writing a letter to [Judge Pezze] wherein

he informed the court that he did not believe he should be pleading guilty.”

(Appellant’s brief at 6.) As the Commonwealth notes, there is nothing in the

record substantiating appellant’s claim that he sent a letter to Judge Pezze

prior to being sentenced. Furthermore, since appellant was represented by

counsel, any pro se motion filed would have been a legal nullity.           See

Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa.Super. 2007)

(“Appellant had no right to file a pro se motion because he was represented

by counsel. This means that his pro se post-sentence motion was a nullity,

having no legal effect.”). No relief is due.

      In his final claim, appellant argues that his guilty plea is invalid as the

sentencing court did not explain his post-sentence or appeal rights as



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required by Pa.R.Crim.P. 704(c)(3). The lower court and the Commonwealth

do not dispute this assertion. We agree with the Commonwealth that since

appellant filed a timely pro se notice to withdraw his guilty plea and

thereafter filed a timely counseled notice of appeal to this court, the error

was harmless. The remedy of a remand so the court could properly advise

appellant of his rights is moot as appellant filed a timely post-sentence

motion and appeal and did not affect the validity of his plea.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/10/2015




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                                                                             Circulated 01/23/2015 03:04 PM




    IN THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY,
                COMMONWEALTH OF PENNSYLVANIA

                                  CRIMINAL DIVISION


COMMONWEALTII OF PENNSYLV ANlA                         )
                                                       )
               vs.                                     )       No.    241 8 C2012
                                                       )               877 C 2013
M. PA1RICK HAUGH,                                      )               876 C 2013
                                                       )
        DefendantiAppellant.                           )




OPINION OF COURT PURSUANT TO RULE 1925(8) OF THE PENNSYLVANtA
               RULES OF APPELLATE PROCEDURE

            AND NOW, to wit,     tllls'J4-   day of May, 2014, the Court hereby issues the

following Opinion in support of the Order appeaJed from, indicating those places in the

record where such reasons for the court's rulings can be found, pursuant to Pennsylvania

Rule of Appellate Procedure No. 1925(a).

        This appeal is from this Court's denial of the DefendantlAppellant's pro se

Motion to Withdraw Guilty Plea. In his Concise Slatement of Errors Complained of on

Appeal, Appellant contends that his guilty plea was not knowingly, voluntarily and

intelligently entered.                                                                 ,--   -- -   -.   ~   - .. - .

       The fIrst basis upon which Appellant makes his claim is that his fonner legal

counsel did not review the charges with him. did not discuss the possible defenses that

could be raised, and did not explain the sentencing guidelines that were applicable to the

offenses. To the extent that Appellant raises issues oftrial counsel's ineffectiveness, the

evidence of counsel's ineffectiveness was nol offered or deveJoped at the hearing on the




                                               I

                                         ADDENDUM C
                                                                                Circulated 01/23/2015 03:04 PM




 Motion to Withdraw Guilty Plea. Furthermore, after reviewing the fI.Ies on this matter,

 we have been unable to find a Guilty Plea Petition or Petitions which would have set

 fonh Lhe charges and the possible maximum sentences, even though the Appellant

confmned, when questioned by tbe Honorable Debra A. Pezze that he had completed a

petition with his counsel. (See Transcript of General Guilty Pleas, April 9, 2013, p. 11,

proceeding before the Honorable Debra A. Pezze.) Despite there being no Petition in the

record, however, Judge Pezze specifically explained each charge, and the possible

maximum sentence that couJ<fbe ImPosed, to "toe"Appellant before he plead guilty to each"

charge. (See Transcript of General Guilty Pleas, April 9, 2013, pp. 12-18.)

        In addition, Judge Pezze specificalJy asked the Appellant wbether he had had

enough time to discuss the charges with his attorney, to discuss any defenses he may have

to the charges, and to discuss the rights that he was giving up. Wben the Appellant asked

for a few additional minutes   [0   consult with his lawyer, she granted him the additional

time before proceeding with the guilty plea colloquy. (See Transcript of General Guilty

Pleas, April 9, 2013, p.12.) After consulting with counsel, the Appellant confirmed that

he had had adequate time to consult with counsel about the charges he faced. Based upon

our review of the guilty plea proceedings. we find the Appellant'S guilty plea to have

been intelligently. voluntari1y and knowingly entered Into;"therefore, his firsfhllegation

of error is without merit.

       The second basis upon which Appellant makes his claim is that he expressed his

intention, prior to sentencing, to withdraw his guilty plea by writing a letter to the

Honorable Debra A. Pezze. informing her that he did not believe that he should be

pleading guilty. Again, there is no evidentiary record that supports this assertion, so this




                                                2
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          fact, coupled with the Appellant's statements at the sentencing proceeding, leads us to

          fInd that this second allegation of error is without merit.

                  The third. and fInal. basis upon which Appellant makes his claim that the guilty

          plea was not knowingly, voluntarily and intelligently entered is that the trial court failed

          to advise the Appellant of his post-sentence appeal rights. Pennsylvania Rule of Criminal

          Procedure No. 704(C)(3) directs the sentencing judge to detennine on the record that the

          defendant has been advised of his rights with regard to the flling of post-sentence motions

          and an appeal. Upon carefuirev(ewofthe record: we have not been able to find anyplace

          or time when the Appellant was advised of his post-sentence appeal rights, either during

          the guilty plea proceedings or at the time of sentencing. Accordingly, it appears that this

          Court. as the sentencing court. failed to comply with the directive under Rule 704(C)(3).



                                                 BYTHEC




          ATTEST:


          Clerk of Courts

          cc;    Michael Pacek, Esq. - for the Commonwealth
                ./James M. Fox. Esq. - for the Defendant
                 Court Administrator's Office




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