J-S23036-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DEMETRES TOMS : : Appellant : No. 1764 EDA 2023
Appeal from the Judgment of Sentence Entered June 17, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000357-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DEMETRES TOMS : : Appellant : No. 1765 EDA 2023
Appeal from the Judgment of Sentence Entered June 17, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008711-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DEMETRES TOMS : : Appellant : No. 1766 EDA 2023
Appeal from the Judgment of Sentence Entered June 17, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008713-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA J-S23036-24
: v. : : : DEMETRES TOMS : : Appellant : No. 1767 EDA 2023
Appeal from the Judgment of Sentence Entered June 17, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008715-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DEMETRES TOMS : : Appellant : No. 1768 EDA 2023
Appeal from the Judgment of Sentence Entered June 17, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008714-2019
BEFORE: STABILE, J., KING, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED NOVEMBER 25, 2024
Appellant, Demetres Toms, appeals from the judgments of sentence
imposed by the Philadelphia County Court of Common Pleas after he entered
guilty pleas at CP-51-CR-0008711-2019, CP-51-CR-0008713-2019, CP-51-
CR-0008714-2019, and CP-51-CR-0008715-2019, and the plea court
resentenced him for probation violations at CP-51-CR-0000357-2019. In this
direct appeal nunc pro tunc, he challenges the voluntariness of his guilty pleas
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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and the discretionary aspects of his combined plea and probation revocation
sentences. Upon careful review, we affirm Appellant’s guilty pleas but vacate
all the judgments of sentence and remand for resentencing with instructions
to remedy an improper anticipatory revocation of probation.
On November 29, 2018, Appellant possessed a firearm at or near 5000
W. Hazel Avenue in Philadelphia despite him being ineligible to do so because
of a prior adjudication. Criminal Complaint, CP-51-CR-0000357-2019,
11/30/18, 1. On February 21, 2019, Appellant entered a guilty plea to
possession of a firearm by a prohibited person at CP-51-CR-000357-2019,
and in exchange for the plea the Commonwealth nolle prossed additional
firearms charges. Trial Disposition and Dismissal Form, CP-51-CR-0000357-
2019, 2/21/19, 1; Written Guilty Plea Colloquy, CP-51-CR-0000357-2019,
2/21/19, 1-3. On June 24, 2019, the plea court sentenced Appellant to eleven
and one-half to twenty-three months’ imprisonment, with immediate parole,
to be followed by five years’ probation. Sentencing Order, CP-51-CR-
0000357-2019, 6/24/19, 1.
At a hearing on January 23, 2020, Appellant agreed to the following
facts, supporting the entry of guilty pleas in four new cases:
[O]n July 30, 2019, [Appellant] and [a] co-defendant went to Vince’s Pizza at 6452 Lansdowne Avenue [and,] at point of gun[,] they took money from the complainants inside the store.[1]
1 CP-51-CR-0008713-2019.
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On August 7, 2019, at [7:40 p.m., Appellant] and [a] co- defendant went to 7-11 at 6375 Lebanon Avenue[, and, at] point of black revolver[,] they took money from the store.[ 2]
On August 10, 2019, at approximately 12:00 a.m.[, Appellant] and [a] co-defendant went to the pizza store again at 6452 Lansdowne Avenue [and, at] point of gun[,] they took money from the complainants at the store.[3]
[On] August 15, 2019, [Appellant] was the front passenger in a car with [his] co-defendant. They were seen fleeing from police. [Appellant] was seen throwing a firearm out of the front passenger seat window. The gun was recovered.[4] [Appellant] was arrested eventually.
[Appellant] has a prior conviction which makes him ineligible to carry a firearm for [18 Pa.C.S. §] 6105 F1 purposes. The defendants were caught on surveillance video.
N.T. 1/23/20, 22-23. Appellant pleaded guilty to: (1) possession of a firearm
by a prohibited person and conspiracy to commit possession of a firearm by a
prohibited person at CP-51-CR-0008711-2019; 5 (2) robbery, conspiracy to
commit robbery, and possession of a firearm by a prohibited person at CP-51-
CR-0008713-2019;6 (3) robbery, conspiracy to commit robbery, and
possession of a firearm by a prohibited person at CP-51-CR-0008714-2019; 7
2 CP-51-CR-0008714-2019.
3 CP-51-CR-0008715-2019.
4 CP-51-CR-0008711-2019.
5 18 Pa.C.S. §§ 6105(a)(1) and 903(c)/6105(a)(1).
6 18 Pa.C.S. §§ 3107(a)(1)(ii), 903(c)/3107(a)(1)(ii), and 6105(a)(1).
7 18 Pa.C.S. §§ 3107(a)(1)(ii), 903(c)/3107(a)(1)(ii), and 6105(a)(1).
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and (4) robbery, conspiracy to commit robbery, and possession of a firearm
by a prohibited person at CP-51-CR-0008715-2019. 8 Trial Disposition and
Dismissal Forms and Written Guilty Plea Colloquies, 1/23/20, at CP-51-CR-
0008711-2019, CP-51-CR-0008713-2019, CP-51-CR-0008714-2019, and CP-
51-CR-0008715-2019. Numerous additional charges were nolle prossed in
exchange for the pleas. Id. Sentencing was deferred for preparation of a
pre-sentence investigation report. N.T. 1/23/20, 23.
On June 17, 2021, the plea court revoked Appellant’s probation at CP-
51-CR-0000357-2019 and, on the remaining trial court dockets at issue here,
sentenced him to concurrent terms of ten to twenty years’ imprisonment for
each of his robbery convictions with a concurrent four-to-eight-year
imprisonment term for the probation revocation sentence. 9 N.T. 6/17/21, 9-
11. Appellant did not file post-sentence motions or direct appeals in any of
the underlying cases.
On June 15, 2022, Appellant filed in each of the underlying cases a
petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. ____________________________________________
8 18 Pa.C.S. §§ 3107(a)(1)(ii), 903(c)/3107(a)(1)(ii), and 6105(a)(1).
9 To be exact, the court referred to the imposition of concurrent imprisonment
terms for four counts of robbery, even though Appellant only pleaded guilty to three counts of robbery in the underlying cases. N.T. 6/17/21, 9-10 (“You will receive a concurrent sentence on all four robberies … That’s all four.”). The court did not announce any sentences for the conspiracy and firearms convictions at CP-51-CR-0008711-2019, CP-51-CR-0008713-2019, CP-51- CR-0008714-2019, and CP-51-CR-0008715-2019. The certified records for three of those four cases and the probation revocation case also lack sentencing orders from the June 17, 2021 hearing; the certified record for CP- 51-CR-0008713-2019 contains a corrected sentencing order.
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§ 9541, et seq. Present counsel was appointed and filed an amended PCRA
petition. On February 13, 2023, the plea court, sitting as the PCRA court,
reinstated Appellant’s direct appeal rights nunc pro tunc in each of the
underlying cases and permitted counsel thirty days to file post-sentence
motions nunc pro tunc. Order, 2/13/23, 1 (“Counsel is to file post sentence
motions within thirty (20) [sic] days of the date of this order.”).
In each of his underlying cases, Appellant filed a motion for
reconsideration of sentence. Motions for Reconsideration of Sentence,
2/23/23. He also filed a motion to withdraw his guilty pleas entered on
January 23, 2020. Motions for Withdraw of Guilty Plea, 2/23/23. At CP-51-
CR-0008711-2019, CP-51-CR-0008713-2019, CP-51-CR-0008714-2019, and
CP-51-CR-0008715-2019, the plea court filed orders on June 26, 2023,
informing Appellant that his post-sentence motions were denied by operation
of law. Order, 6/26/23, 1. No responsive order was filed with respect to the
post-sentence motion for reconsideration at CP-51-CR-0000357-2019.
Appellant filed separate notices of appeal in each of the underlying cases on
July 9, 2023. On July 24, 2023, the plea court filed orders in each of the
underlying cases directing Appellant to file, within twenty-one days, concise
statements of matters complained of on appeal pursuant Pa.R.A.P. 1925(b).
Rule 1925 Orders, 7/24/23, 1. Appellant filed untimely Rule 1925(b)
statements on August 23, 2023. Despite filing an initial opinion finding that
Appellant waived his claims by failing to timely file Rule 1925(b) statements,
the plea court filed a supplemental opinion addressing the issues raised in the
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untimely Rule 1925(b) statements. 10 Plea Court Opinion, 8/21/23, 1-2; Plea
Court Supplemental Opinion, 11/28/23, 1-5.
On October 18, 2023, we issued a per curiam rule to show cause order
at 1764 EDA 2023, in which we pointed out that the sentence on nunc pro
tunc appeal at CP-51-CR-0000357-2019 was for a probation revocation term
but Appellant’s notice of appeal for that case was filed on July 9, 2023, where
the court reinstated his direct appeal rights nunc pro tunc on February 23,
2023. Rule to Show Cause Order, 1764 EDA 2023, 2/18/23, 1. We directed
Appellant to show cause, in a response to be filed within ten days of our order,
why the appeal at 1764 EDA 2023 should not be quashed as untimely. Id.,
citing Pa.R.A.P. 105(b) (this Court may not extend the time for filing a notice
of appeal), Pa.R.Crim.P. 708(E) (“A motion to modify a sentence imposed after
a revocation shall be filed within 10 days of imposition. The filing of a motion
to modify sentence will not toll the 30-day appeal period.”), and
Commonwealth v. Parlante, 823 A.2d 927, 929 (Pa. Super. 2003) (a
motion for modification of sentence imposed due to a revocation probation
does not grant an additional 30 days to file an appeal once denied). Appellant
did not file a response, and we referred the issue raised by the rule to show
cause order to the instant panel. Order Discharging Rule to Show Cause
Order, 1764 EDA 2023, 11/6/23, 1. We then sua sponte consolidated the five
pending appeals. Consolidation Orders, 11/6/23, 1. ____________________________________________
10 A new judge drafted the Rule 1925(a) opinions as, by that time, the judge
who had sat as the plea/PCRA court had retired from the bench.
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Appellant identifies the following issues for our review:
1. Whether [A]ppellant’s guilty pleas were entered knowingly, intelligently, and voluntary.
2. Whether the sentencing court abused [its] discretion by imposing sentences that were not based upon the gravity of the violation, the extent of [A]ppellant’s record, his prospect of rehabilitation, nor an assessment of the mitigating and aggravating factors as noted in 42 Pa.C.S. [§] 9721 of the Sentencing Code.
Appellant’s Brief at 7.
Before turning to Appellant’s substantive issues, it is incumbent on us
to address the rule to show cause order which was referred to this panel as
the issue raised in it bears on the existence of our jurisdiction for the appeal
at 1764 EDA 2023.11 Commonwealth v. Valentine, 928 A.2d 346, 349 (Pa.
Super. 2007) (this Court may sua sponte raise jurisdictional issues); see also
Commonwealth v. Patterson, 940 A.2d 493, 497 (Pa. Super. 2007)
(“Jurisdiction is vested in the Superior Court upon the filing of a timely notice
of appeal.”) (citation omitted). Here, the plea court, sitting as the PCRA court,
reinstated Appellant’s direct appeal and post-sentence motion rights after the
filing of a PCRA petition. The application of Pa.R.Crim.P. 708 created a
different notice of appeal deadline for the appeal in CP-51-CR-0000357-2019
because that case, as opposed to the other four cases before us, pertained to
11We note with disapproval that Appellant never responded to the rule to show cause order and neither of the parties have addressed it in their briefs despite the fact that we referred it to the panel assigned to address these appeals.
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a judgment of sentence imposed after a probation revocation. For instance,
we have noted:
Rule 720 of the Pennsylvania Rules of Criminal Procedure in general governs the timing of post-sentence motion procedures and appeals. See Pa.R.Crim.P. 720. The disposition of a motion to modify a sentence imposed after a revocation hearing, however, is governed by Rule 708 (Violation of Probation, Intermediate Punishment, or Parole: Hearing and Disposition). See Pa.R.Crim.P. 720 Comment. Rule 708(E) states: “A motion to modify a sentence imposed after a revocation shall be filed within 10 days of the date of imposition. The filing of a motion to modify sentence will not toll the 30-day appeal period.” Pa.R.Crim.P. 708(E) (emphasis added). Rule 708 makes clear Rule 720 does not apply to revocation cases. Id. Comment. See also Commonwealth v. Parlante, 823 A.2d 927, 929 (Pa. Super. 2003) (internal citation omitted) (stating: “An appellant whose revocation of probation sentence has been imposed after a revocation proceeding has 30 days to appeal her sentence from the day her sentence is [imposed], regardless of whether … she files a post-sentence motion. Therefore, if an appellant chooses to file a motion to modify her revocation sentence, she does not receive an additional 30 days to file an appeal from the date her motion is denied”).
Commonwealth v. Burks, 102 A.3d 497, 499-500 (Pa. Super. 2014).
Because Pa.Crim.P. 708(E) governed Appellant’s deadlines for filing
post-sentence motions and a notice of appeal from the judgment of sentence
following a revocation of his probation, even where the direct appeal and post-
sentence motion rights were reinstated nunc pro tunc via PCRA review, any
post-sentence motions filed in that revocation case would not have tolled the
thirty-day appeal period. See Burks, 102 A.3d at 500 (holding Rule 708(E)
applies in a probation revocation matter even after the reinstatement of direct
appeal and post-sentence motion rights nunc pro tunc). Accordingly,
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Appellant would have had thirty-days after the reinstatement of his direct
appeal rights, until March 15, 2023, to file a timely notice of appeal in CP-51-
CR-0000357-2019. See Pa.R.A.P. 903(a) (as a general rule, an appellant
must file a notice of appeal “within 30 days after the entry of the order from
which the appeal is taken”); Pa.R.A.P. 105(b) (this Court “may not enlarge
the time for filing a notice of appeal…”); see, e.g., Commonwealth v.
Wright, 846 A.2d 730, 734-35 (Pa. Super. 2004) (“When the trial court issues
an order reinstating an appellant’s appeal rights, the appellant must file the
appeal within 30 days of the order reinstating the appeal rights. To permit an
appellant to file the appeal more than thirty days after the reinstatement
would put the appellant in a better position than he would have been absent
counsel’s failure to file a timely direct appeal.”) (footnote omitted). Appellant
did not file his notices of appeal for the five cases sub judice until July 9, 2023,
which was within thirty days of the plea court informing Appellant that his
post-sentence motions were denied by operation of law at CP-51-CR-
0008711-2019, CP-51-CR-0008713-2019, CP-51-CR-0008714-2019, and CP-
51-CR-0008715-2019.
Based on the application of Rule 708(E), the notice of appeal docketed
at 1764 EDA 2023 is facially untimely. While we may not extend the deadline
for filing a notice of appeal pursuant to Pa.R.A.P. 105(b), we may excuse the
untimely filing in the event of a breakdown in the operations of the court. See
Commonwealth v. Braykovich, 664 A.2d 133, 136 (Pa. Super. 1995)
(noting that the official note to Pa.R.A.P. 105 makes clear that the appellate
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courts retain the power to grant relief from the effects of a breakdown in the
court system). In this instance, when the PCRA court reinstated Appellant’s
direct appeal rights, it set a time limit for the filing of post-sentence motions
nunc pro tunc, but it was silent as to the deadline for filing a notice of appeal
and did not inform Appellant that he had thirty days to file an appeal.
Accordingly, we will not fault Appellant for failing to timely appeal the
probation revocation sentence at CP-51-CR-0000357-2019 within thirty days
of the restoration of his direct appeal rights. Therefore, we will not quash the
appeal at 1764 EDA 2023. See Wright, 846 A.2d at 735 (“if a PCRA court
restores a defendant’s direct appeal rights nunc pro tunc, the court must
inform the defendant that the appeal must be filed within 30 days of the entry
of the order.”).
After settling the outstanding jurisdictional issue at 1764 EDA 2023, we
next must address Appellant’s untimely Rule 1925(b) statements. Where the
failure to file a Rule 1925(b) statement is the result of an omission by counsel,
Rule 1925(c)(3) directs us as follows:
If an appellant represented by counsel in a criminal case was ordered to file and serve a Statement and either failed to do so, or untimely filed or served a Statement, such that the appellate court is convinced that counsel has been per se ineffective, and the trial court did not file an opinion, the appellate court may remand for appointment of new counsel, the filing or service of a Statement nunc pro tunc, and the preparation and filing of an opinion by the judge.
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Pa.R.A.P. 1925(c)(3). Rule 1925(c)(3) treats a counsel’s failure to file a timely
Rule 1925(b) statement as equivalent with the failure to file any Rule 1925(b)
statement. We see no need to remand due to the late filing of the Rule
1925(b) statements in this instance because, “in the interest of expediency,”
the plea court already filed a supplemental opinion addressing the claims
Appellant presents herein. Plea Court Supplemental Opinion, 11/28/23, 3.
See, e.g., Commonwealth v. Andrews, 213 A.3d 1004, 1010 (Pa. Super.
2019) (declining to find waiver or remand for a Rule 1925(a) opinion where
“the trial court did not comment on the untimely filing [of the defendant’s]
Rule 1925(b) statement and, in fact, it addressed all of the issues raised
therein”). As there is no impairment of our jurisdiction or any apparent issues
causing waiver based on non-compliance with Rule 1925(b), we may proceed
with substantive review.
In the first issue presented, Appellant asserts that his guilty pleas,
entered on January 23, 2020, were unknowingly, unintelligently, and
involuntarily tendered because the plea court’s oral colloquy failed to confirm
his understanding of all the essential components for a valid plea. In
particular, he alleges:
The factual basis for each plea lacks any reference to [A]ppellant’s role in each of the alleged incidents, as well as any evidence of his underlying intent. The on-the-record colloquy is so fundamentally bare that it cannot be cured by the written colloquy. A review of the record proves that [the plea court] did not conduct an inquiry into the six mandatory factors. [The plea court] did not ask [A]ppellant if he understood his right to a jury trial, his presumption of innocence, the nature of the charges against him,
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or the permissible range of sentences for the offenses charge[d], or that there was no agreement to the sentences to be imposed.
Appellant’s Brief at 15.
Upon comparing this appellate challenge to the voluntariness of the
guilty pleas with Appellant’s nunc pro tunc post-sentence motions to withdraw
his pleas, we find that parts of Appellant’s instant claim are waived for lack of
preservation. “In order to preserve an issue related to a guilty plea, an
appellant must either ‘object[ ] at the sentence colloquy or otherwise raise[ ]
the issue at the sentence hearing or through a post-sentence motion.’”
Commonwealth v. Monjaras-Amaya, 163 A.3d 466, 468-69 (Pa. Super.
2017) (citation omitted); see also Commonwealth v. Lincoln, 72 A.3d 606,
609-10 (Pa. Super. 2013) (“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. Failure to employ either measure results in waiver.”) (citations
omitted). Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived
and cannot be raised for the first time on appeal.”). Accordingly, the bounds
of Appellant’s claim in his nunc pro tunc post-sentence motion to withdraw his
guilty pleas set the reviewable bounds of Appellant’s appellate challenge to
the voluntariness of his pleas. See Monjaras-Amaya, 163 A.3d at 469 (“It
is for the court which accepted the plea to consider and correct, in the first
instance, any error which may have been committed.”) (citation omitted).
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In his nunc pro tunc post-sentence motions to withdraw his guilty pleas,
Appellant asserted:
[Appellant’s] guilty pleas were unlawfully induced based on their unknowing and involuntary nature, as well as counsel’s ineffectiveness. Trial counsel failed to provide effective assistance of counsel by providing misleading information regarding the potential sentence to be imposed, failing to failing to [sic] file and litigate pre-trial motions, and failing to interview and subpoena witnesses. [Appellant] di[d] not understand the legal and factual basis for the guilty pleas, and was compelled to enter the guilty pleas by trial counsel’s inadequate representation.
Motion for Withdraw Guilty Plea, 2/23/23, ¶ 8. The assertions about trial
counsel’s ineffective assistance should be deferred to PCRA review pursuant
to Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002) (setting general rule
that defendants should wait to raise claims of ineffective assistance of counsel
until collateral review).12 See Commonwealth v. Holmes, 79 A.3d 562, 576
(Pa. 2013) (“claims of ineffective assistance of counsel are to be deferred to
PCRA review; trial courts should not entertain claims of ineffectiveness upon
post-verdict motions; and such claims should not be reviewed upon direct
appeal”). When we disregard the portions of the post-sentence motion claim
that addressed the alleged ineffectiveness of Appellant’s prior counsel, the
only remaining part of the claim for our review that could be construed as
preserving a trial court error claim for purposes of this direct appeal is the
12 While there are limited exceptions to the general rule in Grant, Appellant
did not assert that any exceptions applied in his post-sentence motion nunc pro tunc.
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assertion that Appellant did not understand “the legal and factual basis for the
guilty pleas.” Accordingly, our review of the instant claim is limited to
examining the trial court’s failure to confirm Appellant’s understanding of
those aspects of the pleas.
When a defendant seeks to withdraw a plea after sentencing, he “must
demonstrate prejudice on the order of manifest injustice before withdrawal is
justified.” Commonwealth v. Yeomans, 24 A.3d 1044, 1046 (Pa. Super.
2011) (citation omitted). “[A] manifest injustice occurs when a plea is not
tendered knowingly, intelligently, voluntarily, and understandingly.”
Commonwealth v. Kpou, 153 A.3d 1020, 1023 (Pa. Super. 2016) (citation
omitted). In determining whether a plea is valid, the court must examine the
totality of the circumstances surrounding the entry of the plea. Id. Where a
written plea colloquy is supplemented by an oral colloquy, the proceedings
strongly suggest that a defendant’s plea was knowing and intelligent. See,
e.g., Commonwealth v. Sauter, 567 A.2d 707, 708-09 (Pa. Super. 1989).
Here, the oral guilty plea colloquy is fairly limited in that it only covered
roughly three pages of notes of testimony. N.T. 1/23/20, 21-23. As for the
“legal and factual basis for the guilty pleas,” the oral colloquy included the
block-quoted summary of the facts included above, see supra pgs. 3-4. The
written guilty plea colloquies included the following assertions: (1) Appellant
committed the crimes for which he was pleading guilty, Written Guilty Plea
Colloquy, 1/23/20, 1; (2) his attorney “told [him] what the elements of the
crime(s) are that the District Attorney must prove to convict [him],” id.; and
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(3) “The facts of the case have been read to me. The crimes and elements of
the crime[s] have been explained to be me. I committed the crimes(s), and
that is why I am pleading guilty,” id. at 3.
Appellant argues that the plea court could not have “relied solely upon
the contents of the written colloquies to determine the voluntary and
intelligent nature of [his] pleas” and that “[i]t was incumbent upon the court
to determine whether [he] understood the content of the colloquies and the
charges to which he which he entered the guilty pleas, [and] not simply
determine that he signed them and presume comprehension based on that
fact.” Appellant’s Brief at 15. He offers no legal support for that argument
and fails to point out any precedent suggesting that we can disregard the
contents of his written guilty plea colloquies in this instance to conclude that
he did not understand the legal and factual basis for his pleas. Instead, “one
is bound by one’s statements made during a plea colloquy, and may not
successfully assert claims that contradict such statements.” Commonwealth
v. Muhammad, 794 A.2d 378, 384 (Pa. Super. 2002). That also includes the
statements Appellant made in his written guilty plea colloquies. See
Commonwealth v. Reid, 117 A.3d 777, 784 (Pa. Super. 2015) (noting that
an appellant challenging the voluntariness of his guilty plea was “further
bound by the[] written statements” included in his written guilty plea
colloquy). Accordingly, Appellant was bound by the statements in his written
guilty plea colloquies confirming his understanding of the facts and elements
of the offenses to which he pleaded guilty. Based on those statements, the
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plea court acted within its discretion by denying his claim that he was entitled
to post-sentence withdrawal of his plea based on his supposed lack of
understanding concerning the factual and legal basis for his pleas.
In his second issue, Appellant challenges the discretionary aspects of
his imprisonment sentences. Upon thoroughly reviewing the certified record
for this case, we notice an issue concerning the legality of the sentences that
renders any review of their discretionary aspects moot. Though the parties
did not address the legality of the sentences, we may address them sua
sponte. See Commonwealth v. Watson, 228 A.3d 928, 941 (Pa. Super.
2020) (issues relating to legality of sentence may be raised sua sponte).
The terms of imprisonment at issue include a probation revocation term
at CP-51-CR-0000357-2019 designated to be served concurrent with multiple
concurrent terms for offenses that supposedly constituted a direct violation of
the probation term that was revoked. Appellant’s original sentence in the
revocation case was a county imprisonment term of eleven and one-half to
twenty-three months’ imprisonment to be followed by five years’ probation.
Sentencing Order, CP-51-CR-0000357-2019, 6/24/19, 1. The sentencing
order for that term specified that the sentence “shall commence on 06/24/19.”
Id. Appellant was thus sentenced to serve imprisonment until May 24, 2021,
which was then to be followed by a probation term that would be served until
May 24, 2026. As demonstrated by Appellant’s guilty plea colloquy on January
23, 2020, all of Appellant’s offenses that were treated as direct violations of
his probation occurred between July 30, 2019 and August 15, 2019. N.T.
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1/23/20, 22-23. Pursuant to our en banc decision in Commonwealth v.
Simmons, 262 A.3d 512, 524 (Pa. Super. 2021) (en banc), the plea court
could not have anticipatorily revoked the order of probation at CP-51-CR-
0000357-2019 when Appellant committed his new crimes before he began
serving his sentence of probation. While the decision in Simmons was filed
after the plea court issued the revocation sentence, “[i]t is well settled that
Pennsylvania appellate courts apply the law in effect at the time of the
appellate decision[; thus] a party whose case is pending on direct appeal is
entitled to the benefit of changes in law which occur before the judgment
becomes final.” Commonwealth v. Conley, 286 A.3d 313, 317 n.9 (Pa.
Super. 2022) (citation and quotation marks omitted). As a result, Simmons
applies in this direct appeal, and it renders Appellant’s revocation sentence
illegal. See Commonwealth v. Conley, 266 A.3d 1136, 1140 (Pa. Super.
2021) (“It is axiomatic that a sentence imposed without statutory authority is
an illegal sentence.”) (citation omitted).
The revocation court illegally resentenced Appellant to serve a new term
of incarceration for a probation violation at CP-51-CR-0000357-2019.
Instead, the plea court only could have made Appellant serve the backtime on
his original imprisonment term to be followed by the original probation term
that he never started serving. See Commonwealth v. Mitchell, 632 A.2d
934, 936 (Pa. Super. 1993) (“the order revoking parole does not impose a
new sentence; it requires appellant, rather, to serve the balance of a valid
sentence previously imposed. Moreover, such a recommittal is just that-a
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recommittal and not a sentence. Further, at a ‘violation of parole’ hearing,
the court is not free to give a new sentence.”) (citations and some
capitalization omitted). Accordingly, we vacate Appellant’s “violation of
probation” judgment of sentence and remand for resentencing so that the plea
court may impose the backtime term and reinstate the original order of
probation at CP-51-CR-0000357-2019.
The grant of relief to remedy the improper anticipatory revocation of
Appellant’s probation upsets the original sentencing scheme because the
unserved five-year probationary term would need to be served consecutive to
the aggregate ten-to-twenty-year imprisonment terms that were imposed in
the four cases constituting the direct violations of Appellant’s parole. See
Commonwealth v. Allshouse, 33 A.3d 31, 36 (Pa. Super. 2011) (“[W]e find
no support in the Pennsylvania statutes that the General Assembly intended
to permit defendants to serve a term of probation and term of state
incarceration simultaneously.”), overruled on other grounds by
Commonwealth v. Simmons, 262 A.3d 512 (Pa. Super. 2021) (en banc).
On that basis, we also must vacate Appellant sentences at CP-51-CR-
0008711-2019, CP-51-CR-0008713-2019, CP-51-CR-0008714-2019, and CP-
51-CR-0008715-2019, and remand for complete resentencing. See
Commonwealth v. Thur, 906 A.2d 552, 569 (Pa. Super. 2006) (stating that
if this Court’s “disposition upsets the overall sentencing scheme of the trial
court, we must remand so that the court can restructure its sentence plan”)
(citation omitted).
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Judgments of sentence vacated. Cases remanded for resentencing with
instructions to require service of backtime and reinstate the original order of
probation at CP-51-CR-0000357-2019. Jurisdiction relinquished.
Date: 11/25/2024
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