J-S74013-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : OTIS WILKERSON : : Appellant : No. 1227 EDA 2016
Appeal from the Judgment of Sentence November 17, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0009610-2015, CP-51-CR-0510891-2006, CP-51-CR-0808421-2006
BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.
MEMORANDUM BY BOWES, J.: FILED MARCH 27, 2018
Otis Wilkerson appeals from the judgment of sentence of thirty-five to
seventy years incarceration imposed following his non-negotiated guilty plea
to, inter alia, involuntary deviate sexual intercourse, robbery, and rape. We
affirm.
This matter returns to the Court following a grant of relief in which we
vacated Appellant’s judgment of sentence. We adopt the history as set forth
in that decision.
As this appeal involves a defect in the guilty plea process, extensive details of the crimes underlying Wilkerson’s convictions are not necessary. It is sufficient for our purposes to state that Wilkerson’s convictions arise from three separate occasions in which he took young women against their will to remote locations, raped them and, in two instances, stole from them. J-S74013-17
Wilkerson was charged with numerous crimes related to these events and on February 28, 2011, he pled guilty to the offenses set forth above. The trial court subsequently sentenced Wilkerson to ten to 20 years on each rape conviction and ten to 20 years on the IDSI conviction. No further penalty was imposed on the remaining convictions. The trial court further ordered that the sentences run consecutively, resulting in an aggregate term of 40 to 80 years of imprisonment. N.T., 6/7/11, at 15-16. Wilkerson filed a timely post-sentence motion seeking to withdraw his guilty pleas, but the trial court never acted on Wilkerson’s motion. The post-sentence motion was ultimately denied by operation of law, and this appeal followed.
Commonwealth v. Wilkerson, 2013 WL 11250801, at *1 (Pa.Super.
2013) (footnote omitted).
We vacated Appellant’s guilty plea on the grounds it was involuntary
since Appellant was not advised that his sentences could be run
consecutively. The Commonwealth filed for review with our Supreme Court,
which denied the request on May 7, 2014. Commonwealth v. Wilkerson,
91 A.3d 162 (Pa. 2014).
Following the return of the record to the Court of Common Pleas,
Appellant elected to proceed to trial by jury. However, on July 13, 2015, he
requested a continuance for new counsel. The trial court postponed the case
for one day to see if Appellant’s family could retain private counsel. On July
14, 2015, W. Fred Harrison, Jr., Esquire entered his appearance, and court
appointed counsel was permitted to withdraw. The trial court then continued
the case until November 17, 2015.
On that date, Attorney Harrison filed a motion to dismiss pursuant to
Rule 600, which was denied. Appellant then decided to plead guilty and
-2- J-S74013-17
received an aggregate sentence of thirty-five to seventy years
imprisonment. On November 30, 2015, Appellant filed a pro se motion to
withdraw his plea, claiming that he “met with counsel only once prior to
November 17, 2015, and counsel shall be deemed ineffective for lack of
preparation for the purposes of trial.” Motion to Withdraw Guilty Plea,
11/30/15, at 1.1 The motion was denied, and Appellant filed a notice of
appeal. This Court issued an order on June 30, 2016, remanding for a
determination as to whether counsel abandoned Appellant. On July 11,
2016, Attorney Harrison filed a motion to withdraw, which was granted on
July 20, 2016. Newly-appointed counsel then complied with the order to file
a concise statement of matters complained of on appeal, and the matter is
now ready for our review. Appellant raises the following claims.
I. The trial court committed error when it refused the Appellant's request to continue the case thereby violating the Appellant's 6th amendment right to a fair trial because he did not have a full and fair opportunity to consult with counsel.
II. The trial court committed error when it found there was not a violation of Rule 600 despite the court record which demonstrated that the Commonwealth failed to bring this case to trial in a timely manner.
III. The court committed error when it failed to permit the Appellant to withdraw his guilty plea based upon the motion filed November 30, 2015. ____________________________________________
1 The tenth day after sentencing was Friday, November 27, 2015. The filing was apparently accepted on Monday, November 30, 2015 as an application of the prisoner mailbox rule.
-3- J-S74013-17
Appellant’s brief at 6.
Appellant’s first claim reads in its entirety:
Every defendant in a criminal case shall have the right to competent counsel. The Sixth Amendment of the United States Constitution provides for the right to counsel in a criminal prosecution. Said right attaches at the first formal proceeding against an accused. McNeil v. Wisconsin, 501 U.S. 171, ----, 111 S.Ct. 2204 2210, 115 L.Ed.2d 158, 170 (1991); Pack, In Interest of 616 A.2d 1006, 420 Pa. Super. 347 (Pa. Super., 1992).
The appellant argues that he did not have the right to counsel and he was severely prejudiced in that he was not afforded the right to have a meaningful discussion with his most recently counsel, Fred Harrison. These are 3 very serious cases which, if found guilty, would all but amount to a de facto life sentence. To clarify, it appears from the record that the appellant was given 1 day to hire an attorney, after which the case was continued for 4 months. The appellant would argue that 4 months is not a significant amount of time to prepare for three cases of serious magnitude. This did not allow the appellant any chance to have a meaningful opportunity to discuss the merits of the 3 cases nor the defenses which could be raised even with the brea[d]th of experience and knowledge that attorney Harrison brings to the table.
Appellant’s brief at 9.
Appellant fails to cite any portion of the record2 nor does he set forth
any standard of law. His argument, such as it is, cites the right to counsel,
and suggests that Appellant was prejudiced because counsel was
unprepared to try the case. “The appellant would argue that 4 months is not
____________________________________________
2 Appellant neglected to ensure that the notes of testimony were included in the certified record.
-4- J-S74013-17
a significant amount of time to prepare for three cases of serious
magnitude.” Id. The trial court emphasizes that Appellant has misstated
the record:
In his first statement of errors, Defendant complains the Court erred when it denied his "request to continue the case...because he did not have a full and fair opportunity to consult with counsel." Defendant's complaint is without merit, it also misstates the record.
....
On November 17, Defendant voluntarily entered non-negotiated pleas of guilty. Defendant's complaint misstates the record in that the Court in fact granted a four month continuance, to November 16, 2015, to consult with newly retained private counsel. Prior to swearing the jury in, Defendant advised the Court that he had conferred with counsel and was ready to proceed to trial.
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J-S74013-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : OTIS WILKERSON : : Appellant : No. 1227 EDA 2016
Appeal from the Judgment of Sentence November 17, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0009610-2015, CP-51-CR-0510891-2006, CP-51-CR-0808421-2006
BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.
MEMORANDUM BY BOWES, J.: FILED MARCH 27, 2018
Otis Wilkerson appeals from the judgment of sentence of thirty-five to
seventy years incarceration imposed following his non-negotiated guilty plea
to, inter alia, involuntary deviate sexual intercourse, robbery, and rape. We
affirm.
This matter returns to the Court following a grant of relief in which we
vacated Appellant’s judgment of sentence. We adopt the history as set forth
in that decision.
As this appeal involves a defect in the guilty plea process, extensive details of the crimes underlying Wilkerson’s convictions are not necessary. It is sufficient for our purposes to state that Wilkerson’s convictions arise from three separate occasions in which he took young women against their will to remote locations, raped them and, in two instances, stole from them. J-S74013-17
Wilkerson was charged with numerous crimes related to these events and on February 28, 2011, he pled guilty to the offenses set forth above. The trial court subsequently sentenced Wilkerson to ten to 20 years on each rape conviction and ten to 20 years on the IDSI conviction. No further penalty was imposed on the remaining convictions. The trial court further ordered that the sentences run consecutively, resulting in an aggregate term of 40 to 80 years of imprisonment. N.T., 6/7/11, at 15-16. Wilkerson filed a timely post-sentence motion seeking to withdraw his guilty pleas, but the trial court never acted on Wilkerson’s motion. The post-sentence motion was ultimately denied by operation of law, and this appeal followed.
Commonwealth v. Wilkerson, 2013 WL 11250801, at *1 (Pa.Super.
2013) (footnote omitted).
We vacated Appellant’s guilty plea on the grounds it was involuntary
since Appellant was not advised that his sentences could be run
consecutively. The Commonwealth filed for review with our Supreme Court,
which denied the request on May 7, 2014. Commonwealth v. Wilkerson,
91 A.3d 162 (Pa. 2014).
Following the return of the record to the Court of Common Pleas,
Appellant elected to proceed to trial by jury. However, on July 13, 2015, he
requested a continuance for new counsel. The trial court postponed the case
for one day to see if Appellant’s family could retain private counsel. On July
14, 2015, W. Fred Harrison, Jr., Esquire entered his appearance, and court
appointed counsel was permitted to withdraw. The trial court then continued
the case until November 17, 2015.
On that date, Attorney Harrison filed a motion to dismiss pursuant to
Rule 600, which was denied. Appellant then decided to plead guilty and
-2- J-S74013-17
received an aggregate sentence of thirty-five to seventy years
imprisonment. On November 30, 2015, Appellant filed a pro se motion to
withdraw his plea, claiming that he “met with counsel only once prior to
November 17, 2015, and counsel shall be deemed ineffective for lack of
preparation for the purposes of trial.” Motion to Withdraw Guilty Plea,
11/30/15, at 1.1 The motion was denied, and Appellant filed a notice of
appeal. This Court issued an order on June 30, 2016, remanding for a
determination as to whether counsel abandoned Appellant. On July 11,
2016, Attorney Harrison filed a motion to withdraw, which was granted on
July 20, 2016. Newly-appointed counsel then complied with the order to file
a concise statement of matters complained of on appeal, and the matter is
now ready for our review. Appellant raises the following claims.
I. The trial court committed error when it refused the Appellant's request to continue the case thereby violating the Appellant's 6th amendment right to a fair trial because he did not have a full and fair opportunity to consult with counsel.
II. The trial court committed error when it found there was not a violation of Rule 600 despite the court record which demonstrated that the Commonwealth failed to bring this case to trial in a timely manner.
III. The court committed error when it failed to permit the Appellant to withdraw his guilty plea based upon the motion filed November 30, 2015. ____________________________________________
1 The tenth day after sentencing was Friday, November 27, 2015. The filing was apparently accepted on Monday, November 30, 2015 as an application of the prisoner mailbox rule.
-3- J-S74013-17
Appellant’s brief at 6.
Appellant’s first claim reads in its entirety:
Every defendant in a criminal case shall have the right to competent counsel. The Sixth Amendment of the United States Constitution provides for the right to counsel in a criminal prosecution. Said right attaches at the first formal proceeding against an accused. McNeil v. Wisconsin, 501 U.S. 171, ----, 111 S.Ct. 2204 2210, 115 L.Ed.2d 158, 170 (1991); Pack, In Interest of 616 A.2d 1006, 420 Pa. Super. 347 (Pa. Super., 1992).
The appellant argues that he did not have the right to counsel and he was severely prejudiced in that he was not afforded the right to have a meaningful discussion with his most recently counsel, Fred Harrison. These are 3 very serious cases which, if found guilty, would all but amount to a de facto life sentence. To clarify, it appears from the record that the appellant was given 1 day to hire an attorney, after which the case was continued for 4 months. The appellant would argue that 4 months is not a significant amount of time to prepare for three cases of serious magnitude. This did not allow the appellant any chance to have a meaningful opportunity to discuss the merits of the 3 cases nor the defenses which could be raised even with the brea[d]th of experience and knowledge that attorney Harrison brings to the table.
Appellant’s brief at 9.
Appellant fails to cite any portion of the record2 nor does he set forth
any standard of law. His argument, such as it is, cites the right to counsel,
and suggests that Appellant was prejudiced because counsel was
unprepared to try the case. “The appellant would argue that 4 months is not
____________________________________________
2 Appellant neglected to ensure that the notes of testimony were included in the certified record.
-4- J-S74013-17
a significant amount of time to prepare for three cases of serious
magnitude.” Id. The trial court emphasizes that Appellant has misstated
the record:
In his first statement of errors, Defendant complains the Court erred when it denied his "request to continue the case...because he did not have a full and fair opportunity to consult with counsel." Defendant's complaint is without merit, it also misstates the record.
....
On November 17, Defendant voluntarily entered non-negotiated pleas of guilty. Defendant's complaint misstates the record in that the Court in fact granted a four month continuance, to November 16, 2015, to consult with newly retained private counsel. Prior to swearing the jury in, Defendant advised the Court that he had conferred with counsel and was ready to proceed to trial. (N.T., 11/17/15 pg. 11). At the close of opening arguments, counsel further advised the Court that Defendant wished to enter non-negotiated pleas to the pending charges. (N,T., 11/17/15 pg. 12).
Trial Court Opinion, 2/24/17, at 9-11.
Thus, contrary to Appellant’s claim that the trial court somehow erred
in failing to grant a continuance request, it appears that Appellant is not
faulting the trial court in any way. Appellant recognizes as much, as he
acknowledges that the trial court postponed trial by four months; he simply
claims that “[four] months is not a significant amount of time to prepare[.]”
We deem this claim waived due to the complete failure to develop an
argument. “It is not the obligation of [an appellate court . . . ] to formulate
[a]ppellant's arguments for him.” Wirth v. Commonwealth, 95 A.3d 822,
-5- J-S74013-17
837 (Pa. 2014) (quoting Commonwealth v. Johnson, 985 A.2d 915, 924
(Pa. 2009) (alterations in original). Moreover, as stated, Appellant’s claim in
truth appears to challenge the adequacy of counsel’s representations, which
must be raised through collateral proceedings.
Appellant’s second claim argues that the trial court incorrectly denied
his Rule 600 motion. We find that this claim is waived due to the entry of
the plea. “A plea of guilty constitutes a waiver of all nonjurisdictional
defects and defenses. When a defendant pleads guilty, he waives the right to
challenge anything but the legality of his sentence and the validity of his
plea.” Commonwealth v. Jones, 929 A.2d 205, 212 (Pa. 2007) (quoting
Commonwealth v. Montgomery, 401 A.2d 318, 319 (Pa. 1979)). This
includes Rule 600 claims. “[A]n alleged irregularity in proceedings prior to a
plea of guilty, including an alleged violation of Rule [600], would be
reviewable to the extent that it affected the voluntariness of the guilty plea
itself.” Commonwealth v. Gibson, 561 A.2d 1240, 1242 (Pa.Super. 1989)
(citing Commonwealth v. Riviera, 385 A.2d 976 (Pa.Super. 1978)).
Accordingly, Appellant has waived his Rule 600 claim, especially insofar as
claims challenging the voluntariness of the guilty plea must now be raised
through the PCRA. See e.g. Commonwealth v. Hickman, 799 A.2d 136
(Pa.Super. 2002) (examining ineffectiveness claims challenging
voluntariness of plea based on counsel’s advice).
-6- J-S74013-17
Appellant’s third claim, like his first, challenges counsel’s
representation. Appellant’s brief at 11-12 (“The appellant should have been
permitted to withdraw his guilty plea in light of his lack of effective
representation.”). This claim is unreviewable on direct appeal.
Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002) (“We now hold
that, as a general rule, a petitioner should wait to raise claims of ineffective
assistance of trial counsel until collateral review.”).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 3/27/18
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