Com. v. Shaw, L.

• Court: Superior Court of Pennsylvania
• Decided: June 22, 2022
• Docket: 1321 WDA 2021
• Status: Unpublished

Opinion

J-S14029-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LARRY SHAW : : Appellant : No. 1321 WDA 2021

Appeal from the Judgment of Sentence Entered July 8, 2020 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0000300-2020

BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*

MEMORANDUM BY McCAFFERY, J.: FILED: JUNE 22, 2022

Larry Shaw (Appellant) appeals nunc pro tunc from the judgment of

sentence imposed in the Fayette County Court of Common Pleas following his

guilty plea to, inter alia, persons not to possess firearms.1 On appeal,

Appellant contends his plea was not entered knowingly, voluntarily, and

intelligently. We affirm.

The trial court summarized the facts underlying Appellant’s guilty plea

in the case sub judice as follows:

[On February 5, 2020,] the Uniontown Police were dispatched for a reported shooting that occurred at 221 Connellsville Street in the City of Uniontown. William Mattey, the victim, stated that he had gone to purchase drugs from [ ] Appellant, but [Appellant] did not have any [and] was in need of some. [ ] Appellant and ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 6105(a)(1). J-S14029-22

Mattey then planned to rob another guy of his drugs. They attempted to commit the robbery but were unsuccessful. As they were returning to [ ] Appellant’s residence, [ ] Appellant and Mattey got into a verbal argument. Mattey informed the police that [ ] Appellant then pulled a 45 caliber handgun on him and fired the gun once at him before he fled and then fired the gun a second time.

Trial Ct. Op., 1/4/22, at 2 (unpaginated).

Appellant was arrested and charged at the instant trial docket — CP-26-

CR-0000300-2020 (Docket 300-2020) — with attempted homicide, attempted

aggravated assault, simple assault, recklessly endangering another person,

terroristic threats,2 and persons not to possess firearms. On July 8, 2020,

Appellant appeared before the trial court to enter a global guilty plea in four

outstanding cases, including the one before us. He was represented by

Michael Aubele, Esquire. Appellant pled guilty to the following offenses: (1)

at trial docket CP-26-CR-0000575-2019 (Docket 575-2019), theft by

deception;3 (2) at trial docket CP-26-CR-0000288-2020 (Docket 288-2020),

persons not to possess firearms, possession with intent to deliver controlled

substances, possession of controlled substances, and possession of drug

paraphernalia;4 and (3) at trial docket CP-26-CR-0000591-2020 (Docket 591-

____________________________________________

2 See 18 Pa.C.S. §§ 901, 2501, 2702(a)(4), 2701(a)(3), 2705, and 2706(a)(1), respectively.

3 18 Pa.C.S. § 3922(a)(1).

4 35 P.S. § 780-113(a)(16), (30), (32).

-2- J-S14029-22

2020), simple assault and harassment.5 In the present case — Docket 300-

2020 — the Commonwealth agreed to nol pros the attempted murder charge

and Appellant pled guilty to the remaining offenses. N.T., 7/8/20, at 8, 13.

During the plea hearing, the trial court questioned whether the firearm

Appellant unlawfully possessed at Docket 288-2020 was the same firearm he

unlawfully possessed at Docket 300-2020. N.T., 7/8/20, at 7-8. Appellant

replied that it was. Id. at 8. Because both incidents occurred the same day,

the court inquired whether Appellant could “be charged and sentenced

multiple times for possessing the same firearm” on the same day. Id. The

Commonwealth replied that the charges were proper because “[t]here are two

separate incidents, two separate investigations, two separate charges, two

separate cases[;] these incidents were conducted by two different police

agencies at two different times.” Id. at 9. Although it is not clear from the

limited record before us,6 it appears the charges at Docket 288-2020 were

filed following the execution of a search warrant at Appellant’s home that was

obtained independent of the incident in this case. Appellant states the

incidents (i.e. the assault of Mattey and the execution of the search warrant),

“occurred only five hours apart on [the same] date, and . . . involved the same

Industria Argentina 45 caliber firearm.” Appellant’s Brief at 5.

5 18 Pa.C.S. §§ 2701(a)(3), 2709(a)(1).

6The only information in the certified record regarding Docket 288-2020 is what was discussed during the plea hearing.

-3- J-S14029-22

During the discussion, the Commonwealth stated that if Appellant did

not “want the deal” at Docket 300-2020, it would “get [the victim] in and he’ll

testify.” N.T., 7/8/20, at 10. Thereafter the following exchange took place:

[Attorney] Aubele: I’ve advised my client that it’s in his best interest to take the deal and I believe it is. I just don’t want him to have two convictions for the same, that’s all I’m trying to do.

[Commonwealth]: He’s not going to have two convictions for the same offense because they’re at different times.

THE COURT: He can have two convictions for the same firearm.

[Commonwealth]: Yes. Let’s say that on Monday he had his gun out and he was wielding it around. That’s number one.

THE COURT: At 10:00 A.M.

[Commonwealth]: At 10:00 A.M.

THE COURT: And at 3:00 [P].M. he had the same gun out.

[Commonwealth]: He had it again. It’s not the same incident. He had possession of the gun twice in one day. It doesn’t matter if he had the incident number one at 10:00 and at 11:30 he went down in another place and had the gun. That’s two different situations.

[Attorney] Aubele: Your Honor, we’re not going to contest that specific charge. We agree that the Commonwealth will likely sustain their burden on that charge.

Id. at 10-11.

The trial court accepted the plea and then proceeded to sentence

Appellant on each of the dockets. The court imposed a sentence of 5 to 10

years’ imprisonment for persons not to possess firearms at Docket 300-2020,

and a concurrent term of 4 to 10 years’ imprisonment for the same crime at

Docket 288-2020. N.T., 7/8/20, at 11, 13. At Docket 591-2020, the court

-4- J-S14029-22

imposed a term of six to 12 months’ imprisonment for simple assault, to run

consecutive to the sentence at Docket 288-2020, and at Docket 575-2019,

the court imposed a concurrent sentence of 2½ to 5 years’ imprisonment.7

See id. at 12.

Appellant did not file a post-sentence motion to withdraw his plea or a

direct appeal. Instead, on March 11, 2021, Appellant filed a pro se document ____________________________________________

7 Although not raised on appeal, we point out a discrepancy in the record. The written guilty plea form indicates that Appellant was pleading guilty to various counts in the aforementioned cases, and would receive an aggregate sentence of 4½ to 11 years’ incarceration, consecutive to another sentence he had recently received. See Guilty Plea, 7/8/20. The Commonwealth reiterated this agreement at the commencement of the plea hearing. See N.T., 7/8/20, at 2 (Commonwealth stating the plea “calls for a term of four and a half to eleven years consecutive to the sentence he just received on all four cases”). The court and its staff refer to the prior offense as “287 of 2020, which was [a] trial.” See id. at 11, 13. Upon our independent review of Appellant’s Fayette County Court Summary, we confirmed that on July 6, 2020, Appellant was sentenced to a term of 6 to 12 years for persons not to possess firearms at Trial Docket CP-26-CR-0000287-2020.

As noted above, the court imposed a sentence of five to ten years’ imprisonment for the firearms offense in the present case. Initially, the court stated the sentence would run concurrently to the sentences for the other three pleas entered that day, as well as to 287-2020. N.T., 7/8/20, at 13. Inexplicably, the court also stated: “I[f] our calculations are correct that should total four and a half to eleven years which was the plea bargain consecutive to 300 of 2020.” Id. (emphasis added). However, the court then corrected itself and indicated the sentence sub judice would run “consecutive to 287 of 2020.” Id. To further complicate matters, the sentencing order in the certified record states “this sentence shall run concurrent with the sentencing imposed at Nos. 287 of 2020; 288 of 2020; 591 of 2020 and 575 of 2020.” Order, 7/8/20 (emphasis added). Thus, despite the agreement that Appellant would serve an aggregate term of 4½ to 11 years’ imprisonment, it appears he was sentenced to an aggregate term of 5 to 11 years’ imprisonment. Nevertheless, Appellant has not raised any challenge to his sentence on appeal.

-5- J-S14029-22

titled “Motion to Modify and Reduce Sentence Nunc Pro Tunc.” No action was

taken. Thereafter, on May 24th, he filed a timely pro se petition for relief

pursuant to the Post Conviction Relief Act (PCRA),8 asserting he “didn[’]t plead

guilty to this case” and “also [he is] being charged with the same gun twice[.]”

Appellant’s Post-Conviction Relief Act Petition Pursuant to 42 Pa.C.S.A. 9543

et. seq., 5/24/21, at 4. James V. Natale, Esquire, was appointed to represent

Appellant and filed an amended PCRA petition on October 20, 2021, arguing

trial counsel was ineffective for failing to object when the court sentenced

Appellant at Docket 300-2020, and for failing to file a direct appeal. See

Appellant’s Amended Post Conviction Relief Act Petition, 10/20/21, at 1-2

(unpaginated). Appellant did not request permission to file a post-sentence

motion nunc pro tunc.

One week later, on October 27, 2021, the PCRA court entered an order

granting Appellant’s request to file a direct appeal nunc pro tunc. Order,

10/27/21. This timely appeal followed.9

Appellant raises a single issue on appeal:

Whether Appellant’s guilty plea was knowing, voluntary, and intelligent?

8 42 Pa.C.S. §§ 9541-9546.

9Appellant complied with the trial court’s directive to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

-6- J-S14029-22

Appellant’s Brief at 3.10

Generally, “upon entry of a guilty plea, a defendant waives all claims

and defenses other than those sounding in the jurisdiction of the court, the

validity of the plea, and what has been termed the ‘legality’ of the sentence

imposed[.]” Commonwealth v. Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014)

(citation omitted). Furthermore:

It is well-settled that the decision whether to permit a defendant to withdraw a guilty plea is within the sound discretion of the trial court. Although no absolute right to withdraw a guilty plea exists in Pennsylvania, the standard applied differs depending on whether the defendant seeks to withdraw the plea before or after sentencing. When a defendant seeks to withdraw a plea after sentencing, he “must demonstrate prejudice on the order of manifest injustice.” . . . Thus, “post-sentence motions for withdrawal are subject to higher scrutiny since the courts strive to discourage the entry of guilty pleas as sentence-testing devices.”

Commonwealth v. Hart, 174 A.3d 660, 664 (Pa. Super. 2017) (citations and

footnote omitted). A defendant meets the standard of manifest injustice “only

if he can demonstrate that his guilty plea was entered involuntarily,

unknowingly, or unintelligently.” Commonwealth v. Culsoir, 209 A.3d 433,

437 (Pa. Super. 2019). However:

Once a defendant enters a guilty plea, it is presumed that he was aware of what he was doing. Consequently, defendants are bound by statements they make during their guilty plea colloquies and

10 The Commonwealth informed this Court that it would not be filing a responsive brief, but rather would rely upon the trial court’s opinion. See Commonwealth’s Letter, 3/18/22.

-7- J-S14029-22

may not successfully assert any claims that contradict those statements.

Id. (citations omitted).

Moreover, it is axiomatic 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.” Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa. Super.

2013), citing Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). “Failure to employ either

measure results in waiver.” Id. at 610 (citation omitted). See also

Commonwealth v. Monjaras-Amaya, 163 A.3d 466, 469 (Pa. Super. 2017)

(challenge to deficient colloquy for guilty plea raised for the first time in Rule

1925(b) statement was waived).

On appeal, Appellant argues the entry of his guilty plea for persons not

to possess firearms at the present docket was “not knowing, voluntary and

intelligent.” Appellant’s Brief at 6. Although he concedes he is “guilty of at

least one count” of persons not to possess — i.e., at Docket 288-2020 —

Appellant insists “the two separate counts that he [pled] guilty to should have

merged.” Id. at 8. He emphasizes that “possession of a firearm is a

continuing offense.” Id. at 6, citing Commonwealth v. Miklos, 159 A.3d

962, 968 (Pa. Super. 2017). Thus, he maintains, because “the criminal

offenses in this case clearly originate from a single crime spree, and there is

no evidence that these offenses originated from completely separate criminal

acts[,]” he did not knowingly plead guilty to “two separate charges” of persons

not to possess firearms. Appellant’s Brief at 8. For support, he relies upon

-8- J-S14029-22

this Court’s decision in Commonwealth v. Woods, 710 A.2d 626 (Pa. Super.

1998), in which we held that a defendant was improperly sentenced for two

violations of carrying a firearm on public street in Philadelphia, 18 Pa.C.S. §

6108, when there “was no evidence to indicate [the defendant] carried the

subject weapon in other than an uninterrupted fashion for the entire period

encompassing . . . two assaults.” Id. at 631. See Appellant’s Brief at 6-7.

Thus, Appellant insists his “guilty plea results in a manifest injustice that must

be overturned.” Appellant’s Brief at 8.

We conclude no relief is warranted. As noted above, a defendant who

seeks 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.” Lincoln, 72 A.3d at 609-10. Appellant did

not file a post-sentence motion seeking to withdraw his plea, nor did he

request permission from the PCRA court to file a post-sentence motion nunc

pro tunc. See Commonwealth v. Fransen, 986 A.2d 154, 155 (Pa. Super.

2009) (“[A] PCRA petitioner who is granted reinstatement of his direct-appeal

rights nunc pro tunc is not entitled to a subsequent order reinstating his right

to file post-sentence motions nunc pro tunc if he has not requested such relief

with the PCRA court, and if the court did not hold an evidentiary hearing on

that issue.”), citing Commonwealth v. Liston, 977 A.2d 1089 (Pa. 2009).

Moreover, although the trial court raised a question concerning the

propriety of the separate persons not to possess charges and sentences at the

guilty plea hearing, Appellant’s counsel conceded that Appellant was “not

-9- J-S14029-22

going to contest that specific charge.” N.T., 7/8/20, at 11. Appellant was

present during this discussion and, as the trial court points out in its opinion,

Appellant did not “contradict his counsel” or otherwise indicate he desired to

withdraw the plea. See Trial Ct. Op. at 5 (unpaginated). Thus, Appellant has

not preserved this claim for appellate review.11 See Lincoln, 72 A.3d at 609-

10.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 06/22/2022

11 We note, too, that based upon the limited record before us, it appears the separate firearm charges at the present docket and Docket 288-2020 were appropriate under Woods. Here, Appellant was accused of firing his 45 caliber handgun at Mattey during an argument. At Docket 288-2020, the same handgun was recovered during the execution of a search warrant at Appellant’s home, which was based upon information independent of the incident involving Mattey. Conversely, in Woods, the defendant was accused of shooting at two drivers during separate incidents that occurred shortly after one another along the same roadway. See Woods, 710 A.2d at 628. Unlike in Woods, here, Appellant did not possess the firearm in “an uninterrupted fashion for the entire period encompassing” the two incidents. Id. at 631.

- 10 -