Com. v. Woodworth, J.

• Court: Superior Court of Pennsylvania
• Decided: April 4, 2024
• Docket: 450 WDA 2023
• Status: Unpublished

Opinion

J-A06015-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMES WILLIAM WOODWORTH : : Appellant : No. 450 WDA 2023

Appeal from the Judgment of Sentence Entered March 15, 2023 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000075-2023

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and BECK, J.

MEMORANDUM BY LAZARUS, P.J.: FILED: April 4, 2024

James William Woodworth appeals from the judgment of sentence,

entered in the Court of Common Pleas of Erie County, after he, acting pro se,

entered a plea of nolo contendere to one count of driving under the influence

(DUI)—high rate of alcohol.1 After careful consideration, we affirm.

At the plea hearing on March 15, 2023, the Commonwealth set forth the

following facts of this case, to which Woodworth pled no contest:

[I]t is alleged on or about October 14[,] 2022[,] in Erie County, [Woodworth] did drive, operate[,] or was in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in [his] blood or breath was at least .10 percent, but less than .16 percent within two hours after [he] operated a 1995 Chevrolet pickup [truck,] occurring in the area of Buffalo Road and Bartlett Road[,] in the Harborcreek Township of Erie County[,] with a blood[-]alcohol concentration of .122 percent. Thereby, [Woodworth] committed

____________________________________________

1 See 75 Pa.C.S.A. § 3802(b). J-A06015-24

the crime of driving under the influence with a high rate of alcohol, second offense, a misdemeanor.

N.T. Plea Hearing, 3/15/23, at 11. Woodworth was charged with DUI—high

rate of alcohol and DUI—general impairment.2

In exchange for Woodworth’s hybrid3 no contest plea, the

Commonwealth agreed to withdraw his DUI—general impairment charge. On

Woodworth’s written no contest plea colloquy, which he signed and is dated

March 15, 2023, paragraph 5 sets forth the entirety of Woodworth’s plea

agreement with the Commonwealth, and states as follows:

I understand that any plea bargain in my case is set forth here and that there has been no other bargain and no other promise or threat of any kind to induce me to plead guilty/no contest. The only plea bargain in my case is pleading guilty to Count 1. In exchange, the Commonwealth will nolle prosse remaining counts, with costs on the defendant. CC/mw [sic]

The defendant hereby declares that for purposes of computing the mandatory minimum sentence stated above, this case is [his] 2nd conviction for DUI within the last ten (10) years, including Pennsylvania and any other state.

Written No Contest Plea Colloquy, 3/15/23, at 1 (emphasis in original). At the

conclusion of the hearing, the trial court accepted Woodworth’s plea and

sentenced him that same day to six months’ probation with restrictive

conditions, to begin with thirty days’ electronic monitoring, and to pay costs

and a fine. Woodworth did not file a post-sentence motion. ____________________________________________

2 75 Pa.C.S.A. § 3802(a)(1).

3 A “hybrid” plea is one in which the parties did not bargain for a specific sentence but negotiated as to a certain aspect of the sentence. See Commonwealth v. Heaster, 171 A.3d 268, 271 (Pa. Super. 2017).

-2- J-A06015-24

Woodworth filed a timely counseled notice of appeal, and court-ordered

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

Woodworth raises the following issue for our review:

Whether [Woodworth’s] plea was knowingly, intelligently and voluntarily made[,] and his sentence legal[,] when it was improperly enhanced with a DUI—2nd offense[,4] based upon [Woodworth’s] prior [2017 driving while ability impaired] [(]DWAI[)5 conviction] in New York state[, and] the New York DWAI [l]aw is not “substantially similar” to Pennsylvania’s DUI [l]aw[,6] as required under 75 Pa.C.S.A. § 3806[?]

Appellant’s Brief, at 4.

Woodworth raises two distinct claims,7 which we address separately.

First, Woodworth challenges the validity of his plea insofar as it caused him to

4 The court sentenced Woodworth pursuant to 75 Pa.C.S.A. §§ 3804(b)(2) and

3806(a)(3), as a second-time offender for DUI—high rate of alcohol. See 75 Pa.C.S.A. § 3806(a)(3) (“Except as set forth in subsection (b), the term “prior offense” . . . shall mean any conviction for which judgment of sentence has been imposed, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition before the sentencing on the present violation for . . . an offense substantially similar to an offense under [section 3802] or [under former section 3731] in another jurisdiction[.]”).

5 See NY CLS Veh & Tr § 1192.

6 See 75 Pa.C.S.A. § 3802.

7 See Commonwealth v. Jabbie, 200 A.3d 500, 505 (Pa. Super. 2018) (“Generally, upon entry of a guilty [or nolo contendere] 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.”) (citations, quotation marks, and brackets omitted). Here, despite how Woodworth frames the single question presented, his claim implicates issues relating both to the validity of his plea and to the legality of his sentence.

-3- J-A06015-24

be subject to an illegal sentence. Second, Woodworth challenges the legality

of his sentence.

Woodworth argues that his no contest plea to DUI—high rate of alcohol

was not knowingly, voluntarily, and intelligently entered insofar as his

sentence is illegal. More specifically, Woodworth claims that his sentence is

illegal because the New York DWAI law is not substantially similar to

Pennsylvania’s DUI law, as required under 75 Pa.C.S.A. § 3806(a)(3), and

therefore, he concludes that the trial court had no authority to sentence him

as a second-time offender. See 75 Pa.C.S.A. §§ 3804(b)(2), 3806. In

connection with this legality claim, Woodworth asserts that our prior decision

addressing this issue in Commonwealth v. Pombo, 26 A.3d 1155 (Pa.

Super. 2011), incorrectly decided the question of substantial similarity

between New York’s DWAI statute and Pennsylvania’s DUI statute because

the Pombo Court: (1) neglected to conduct any similarity analysis between

the relevant statutes and (2) failed to analyze the issue of legal—as compared

with illegal—conduct. See Appellant’s Brief, at 11-12, citing Commonwealth

v. Shaw, 744 A.2d 739 (Pa. 2000). Particularly, Woodworth argues that his

2017 arrest and conviction in New York would not constitute a crime in

Pennsylvania because, in New York, he was convicted of having a blood-

alcohol concentration of .07% or less, which does not amount to a crime in

Pennsylvania, and therefore, the relevant DWAI and DUI statutes are not

substantially similar. Woodworth concludes that the term “substantially

similar” in Section 3806 is ambiguous and must be interpreted in similar

-4- J-A06015-24

fashion to the equivalency test set forth by our Supreme Court in Shaw, 744

A.2d at 740.8 In sum, Woodworth argues that, pursuant to Shaw, the New

York DWAI law is not substantially similar to the Pennsylvania DUI law, and

therefore, Woodworth’s sentence is illegal where the court sentenced him for

a second offense under the Pennsylvania DUI law instead of sentencing him

as a first-time offender, thereby causing Woodworth to enter an involuntary

no contest plea. Woodworth is not entitled to relief.

Here, Woodworth challenges the validity of his plea insofar as it caused

him to be subject to an illegal sentence. Thus, he is challenging the validity

of his plea post-sentencing, as well as the legality of his sentence.

It is well-settled that withdrawal of a nolo contendere plea after

sentencing is only permitted upon a showing of prejudice amounting to

manifest injustice. See Commonwealth v. Jackson, 569 A.2d 964, 966 (Pa.

Super. 1990). “Post-sentence motions for withdrawal [of a plea] are subject

to higher scrutiny since courts strive to discourage the entry of guilty pleas[9]

as sentencing-testing devices.” Commonwealth v. Kpou, 153 A.3d 1020,

1023 (Pa. Super. 2016) (citations, quotation marks, and brackets omitted).

Further, a defendant’s direct appeal challenge to the voluntariness of his

plea must be properly preserved in the trial court—either by objecting during ____________________________________________

8 As we noted in Pombo, after the Shaw decision, the General Assembly replaced the terms relating to equivalency with “substantially similar.” See Pombo, 26 A.3d at 1159-60, citing Shaw, 744 A.2d at 738 n.5.

9 See Jabbie, 200 A.3d at 505 (plea of nolo contendere is treated same as

guilty plea).

-5- J-A06015-24

the plea colloquy or by filing a motion to withdraw the plea within ten days of

sentencing—or that voluntariness challenge will be waived. See

Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013), citing

Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). This is because “[i]t is for the court

[that] accepted the plea to consider and correct, in the first instance, any error

[that] may have been committed.” Commonwealth v. Roberts, 352 A.2d

140, 141 (Pa. Super. 1975).

Here, we may not review Woodworth’s voluntariness claim on direct

appeal because he failed to preserve it properly by either objecting during the

plea colloquy or by filing a post-sentence motion to withdraw his plea. See

Pa.R.Crim.P. 720(B)(1)(a)(i). Therefore, we conclude Woodworth has waived

the challenge to the validity of his plea.10 See Lincoln, 72 A.3d at 609-10.

10 Even if not waived, we would find this issue meritless insofar as: (1) Woodworth pled no contest at his plea hearing to the fact that, by his acts, “[Woodworth] committed the crime of driving under the influence with a high rate of alcohol, second offense, a misdemeanor[,]” N.T. Plea Hearing, 3/15/23, at 11 (emphasis added), and his written plea colloquy, which recited Woodworth’s plea agreement with the Commonwealth, included that, “[t]he defendant hereby declares that for purposes of computing the mandatory minimum sentence stated above, this case is [his] 2nd conviction for DUI within the last ten (10) years, including Pennsylvania and any other state.” Written No Contest Plea Colloquy, 3/15/23, at ¶ 5 (emphasis added). It is well-established that “[a] defendant is bound by the statements he makes during his plea colloquy[] and may not assert grounds for withdrawing the plea that contradict statements made when he pled.” Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa. Super. 2001) (citation omitted). Consequently, Woodworth is bound by his statements made during his no contest plea that his instant DUI conviction amounts to a second conviction for sentencing purposes and that he was aware of such at the time of his plea and sentencing. See N.T. Plea Hearing, 3/15/23, at 10-13.

-6- J-A06015-24

As to Woodworth’s legality of sentencing claims, we note that issues

challenging the legality of sentence cannot be waived. See Commonwealth

v. Hoffman, 198 A.3d 1112, 1122-23 (Pa. Super. 2018). Our standard of

review for a legality of sentence claim—which is an issue of law—is de novo

and our scope of review is plenary. See Commonwealth v. Infante, 63

A.3d 358, 363 (Pa. 2013). Claims challenging the fundamental legal authority

of the court to impose a sentence constitute a legality of sentence issue. See

Commonwealth v. Catt, 994 A.2d 1158, 1160 (Pa. Super. 2010) (en banc).

Where there is no statutory authorization for a sentence, it is illegal, subject

to correction, and must be vacated. See Commonwealth v. Watson, 945

A.2d 174, 178-79 (Pa. Super. 2008).

Here, Woodworth states in his appellate brief that he “was convicted

under an amendment to the New York DWAI [l]aw which amended § 1192(2)

and added the threshold alcohol concentration of .08%[.]” Appellant’s Brief,

at 9 n.3. However, beyond this statement, Woodworth has failed to include

in the certified record any documentation of his New York DWAI conviction,

which documentation is necessary for this Court to conduct the merits review

of Woodworth’s underlying claim of illegality of his sentence. Because

Woodworth failed to meet his responsibility to provide a record sufficient to

permit meaningful appellate review of his illegality of sentencing claim,11 we

11 Woodworth complains that no record of his New York DWAI conviction was

made part of the sentencing court record. See Appellant’s Brief, at 5 n.1. (Footnote Continued Next Page)

-7- J-A06015-24

deem that issue unreviewable.12 See Commonwealth v. Martz, 926 A.2d

514, 524-25 (Pa. Super. 2007) (it is appellant’s responsibility to supply

appellate courts with complete record for purposes of review and failure to do

Nevertheless, we note that Woodworth negotiated, agreed, and stipulated to the valid existence of that prior conviction in his written plea colloquy, as well as verbally pled no contest to the fact that his Pennsylvania DUI conviction was his second offense for sentencing purposes. See, e.g., Commonwealth v. Mitchell, 902 A.2d 430, 460 (Pa. 2006) (“A stipulation is a declaration that the fact agreed upon is proven[.]”); see also Commonwealth v. Padilla, 80 A.3d 1238, 1272 (Pa. 2013) (stipulation alone provided sufficient proof to support aggravating factor); Mead Johnson & Co. v. Breggar, 189 A.2d 866, 868 (Pa. 1963) (finding no need for proofs of matters upon which parties stipulated); McCauley, 797 A.2d at 922 (defendant is bound by statements made during plea colloquy and may not assert grounds for withdrawing plea that contradict those statements). Consequently, it is of no moment that there is no physical record of Woodworth’s New York conviction in the sentencing court’s record since the parties declared the fact that Woodworth committed a second offense for sentencing purposes to be proven. Moreover, Woodworth never challenged the propriety of the stipulation and agreement with the Commonwealth, and never claimed he lacked knowledge of the existence of his prior DWAI conviction.

12 Even if we were able to address it on the merits, we would find this legality

of sentence issue warrants no relief because we conclude that we are constrained to follow our prior decision in Pombo, especially because Woodworth has failed to differentiate his case from the issues decided therein. See Pombo, 26 A.3d at 1159 (concluding “substantially similar” is not ambiguous as used in 75 Pa.C.S.A. § 3806(a)(3) and the New York DWAI statute satisfies the requirements thereof and rejecting argument relying on equivalence test set forth in Shaw, 744 A.2d 739); see also Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006) (“It is beyond the power of a Superior Court panel to overrule a prior decision of the Superior Court[.]”); see also Commonwealth v. Sullivan, 299 A.3d 881, at *4-*5 (Pa. Super. 2023) (Table) (concluding Pombo governs whether trial court should count defendant’s New York DWAI conviction as prior offense because that offense is “substantially similar,” pursuant to Section 3806, to Pennsylvania DUI offense under Section 3802). See Pa.R.A.P. 126(b) (non-precedential decisions of this Court filed after May 1, 2019 may be cited for their persuasive value).

-8- J-A06015-24

so results in appellate court’s inability to consider anything not of record); see

also Pa.R.A.P. 1926(b)(2) (record may be supplemented “by the parties by

stipulation filed in the trial court, [and] the parties shall file in the appellate

court a copy of any stipulation filed pursuant to this rule, and the trial court

shall certify and transmit as a supplemental record the materials described in

the stipulation”).

Judgment of sentence affirmed.

4/4/2024

-9-