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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
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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
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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).
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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).
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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
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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.
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___, 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
:;, 1" � ::0Pi - ('") :t OPINION � :x> --' a� CJ :::0 r···, g >c: � :E ::0 -::c:10 )>- BARRASSE, P.J. ·'-··u,=;n - Zo:, en r-· ,, ·-:..:. .,... er X· l>:x This opinion is filed pursuant to Rule 1925(a) of the Pennsylv�§i�hle�f �lat� ,,·.- - . ., -"r •. : .. - c::r.'. :.,< 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.
8 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
9 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.