Com. v. Smith, E.

• Court: Superior Court of Pennsylvania
• Decided: July 15, 2024
• Docket: 2552 EDA 2023
• Status: Unpublished

Opinion

J-S16016-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : EBONY SMITH : : Appellant : No. 2552 EDA 2023

Appeal from the Judgment of Sentence Entered September 11, 2023 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0002965-2023

BEFORE: STABILE, J., LANE, J., and STEVENS, P.J.E.*

MEMORANDUM BY LANE, J.: FILED JULY 15, 2024

Ebony Smith (“Smith”) appeals from the judgment of sentence imposed

following her negotiated guilty plea to resisting arrest. 1 We affirm.

In 2023, police responded to a report of a Black female wearing black

clothing and a purple headband using drugs at a specified location in

Norristown. Upon arrival, police observed Smith, who matched the reported

description, using drugs. Smith attempted to hide drug paraphernalia and,

when directed to stop, pushed past the officers in an attempt to get away.

When officers attempted to arrest her, she resisted arrest and a scuffle ensued

for approximately one minute. As officers tried to handcuff Smith, she tried

to escape. When officers eventually arrested Smith, they recovered several

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* Former Justice specially assigned to the Superior Court.

1 See 18 Pa.C.S.A. § 5104. J-S16016-24

crack cocaine pipes, empty bags of heroin, and crack cocaine. Police charged

Smith with resisting arrest and possession of drug paraphernalia. When Smith

failed to appear for a pretrial conference, the trial court issued a bench warrant

for her arrest.

As the matter proceeded, Smith, who was incarcerated, ultimately

agreed to the terms of a negotiated guilty plea, and gave permission to her

counsel, an assistant public defender, to sign and initial a written guilty plea

colloquy. See Trial Court Opinion, 11/21/23, at 1-2. Smith then agreed to

participate in a guilty plea hearing via video. See id. at 1.

At the guilty plea hearing conducted on September 11, 2023, the trial

court announced the terms of the negotiated guilty plea. Specifically, the trial

court indicated that, in exchange for Smith’s guilty plea to resisting arrest,

she would receive two years of probation. See N.T., 9/11/23, at 3. The

assistant public defender informed the court that the agreed term of probation

was one year, rather than two years. See id. The assistant district attorney

confirmed that the negotiated term of probation was one year. See id. at 2.

Smith then confirmed that she had given her counsel permission to sign and

initial the written guilty plea colloquy. See id. at 4. Smith stated on the

record that she understood she was “pleading guilty and waiving [her] trial

rights.” Id. Smith indicated that she was entering her guilty plea of her own

free will, and that no one had forced or threatened her to enter her plea. See

id. Smith stated that she had no questions for the trial court. See id. Smith

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then confirmed the factual basis for her guilty plea. See id. at 5. The trial

court then determined that Smith knowingly, intelligently, and voluntarily

entered her guilty plea, and accepted the terms of the negotiated plea. See

id. at 5-6. Smith did not file a post-sentence motion seeking to withdraw her

plea. Smith instead filed a timely notice of appeal. Both Smith and the trial

court complied with Pa.R.A.P. 1925.

Smith raises the following issue for our review:

Did the lower court err in accepting [Smith’s] guilty plea since the plea was not knowingly and voluntarily entered because [her] oral guilty plea colloquy failed to explain that [she] had a right to a jury trial, failed to explain that a jury’s verdict would need to be unanimous, failed to explain that the Commonwealth would be required to prove guilt beyond a reasonable doubt, and failed to explain the right to confront and cross-examine witnesses at trial?

Smith’s Brief at 3.

Generally, a plea of guilty amounts to a waiver of all defects and

defenses except those concerning the jurisdiction of the court, the legality of

the sentence, and the validity of the guilty plea. See Commonwealth v.

Morrison, 173 A.3d 286, 290 (Pa. Super. 2017). A defendant may seek to

withdraw a guilty plea by oral or written motion at any time before the

imposition of sentence. See Pa.R.Crim.P. 591(A). After sentence has been

imposed, a defendant seeking to withdraw a guilty plea must file a motion to

withdraw the guilty plea no later than ten days after the sentence is imposed.

See Pa.R.Crim.P. 720(B)(1)(a)(i). Absent extraordinary circumstances, the

failure to employ either of these measures results in waiver of any challenge

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to the validity of the guilty plea. See Commonwealth v. Tareila, 895 A.2d

1266, 1270 n.3 (Pa. Super. 2006). Pennsylvania courts adhere to this waiver

principle because it is for the trial court which accepted the plea to consider

and correct, in the first instance, any error which may have been committed

in the plea process. See Commonwealth v. Lincoln, 72 A.3d 606, 610 (Pa.

Super. 2013).

Smith argues that her plea colloquy was defective because she was not

informed that she had a right to a jury trial, to a unanimous jury verdict, to

confront and cross-examine witnesses, and that the Commonwealth had the

burden of proving her guilt beyond a reasonable doubt. Smith asserts that,

because of these deficiencies in the oral plea colloquy, her plea was not

entered knowingly and intelligently, and must be vacated.

The trial court considered Smith’s issue and determined that it was

waived because she failed to challenge the adequacy of the oral plea colloquy

at the guilty plea hearing or in a post-sentence motion challenging the validity

of her guilty plea. See Trial Court Opinion, 11/21/23, at 3.

Based on our review, we conclude that Smith failed to preserve her issue

for our review. Smith did not object to the adequacy of the plea colloquy

during the oral guilty plea hearing and did not file a post-sentence motion

seeking to withdraw her guilty plea. By failing to employ either of these

measures, Smith deprived the trial court of an opportunity to consider and

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correct any mistakes that may have been made in the oral plea colloquy.

Accordingly, Smith’s challenge to the validity of her guilty plea is waived.

Judgment of sentence affirmed.

Date: 7/15/2024

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