Com. v. Zorger, D. ( 2017 )

J-S51027-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID J. ZORGER, JR.,
Appellant No. 167 EDA 2017
Appeal from the Judgment of Sentence September 2, 2016
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0001811-2016
BEFORE: BOWES and SHOGAN, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY SHOGAN, J.: FILED AUGUST 25, 2017
David J. Zorger, Jr. (“Appellant”) appeals the judgment of sentence
entered on September 2, 2016. We affirm.
This case arose on January 25, 2016, when Appellant assaulted his
mother and the responding Bristol Township police officers. On June 13,
2016, Appellant pled guilty to four counts of aggravated assault, two counts
of possessing an instrument of crime, two counts of terroristic threats, one
count of resisting arrest, and one count of criminal mischief.1 On September
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 2702(a)(3), 907, 2706(a)(1), 5104, and 3304(a)(5),
respectively.
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2, 2016, Appellant admitted to violating his probation, waived a Gagnon II2
hearing, and proceeded to sentencing. The trial court first found Appellant
in direct violation of his probation on a 2014 conviction as a result of the
guilty plea. The trial court then sentenced Appellant on the probation
violation to incarceration for eighteen to forty-eight months and on each of
the aggravated assault counts to incarceration for two to five years, the
latter to be served concurrently with each other and consecutively to
Appellant’s probation-violation sentence. N.T., 9/2/16, at 8, 22–24.
Appellant filed a counseled motion to modify and reconsider sentence
on September 6, 2016. He filed a pro se post-sentence motion to modify
sentence on September 12, 2016.3 The trial court held a hearing on the
counseled motion on December 14, 2016. Appellant presented evidence of a
treatment program he was participating in and requested that all sentences
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2
Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (noting that probationer
is entitled to two hearings, a pre-revocation hearing and a final revocation
hearing, before a final revocation decision can be made).
3
Appellant also filed a premature pro se petition pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546, on November 21,
2016, which he withdrew during the hearing on his counseled motion for
reconsideration of sentence. N.T., 12/14/16, at 7. Appellant filed a second
premature pro se PCRA petition on January 17, 2017. “The PCRA provides
petitioners with a means of collateral review, but has no applicability until
the judgment of sentence becomes final.” Commonwealth v. Kubis, 808
A.2d 196, 198 n.4 (Pa. Super. 2002). Therefore, Appellant’s second PCRA
filing should be dismissed without prejudice and refiled once his judgment of
sentence becomes final. Accord Commonwealth v. Leslie, 757 A.2d 984,
985 (Pa. Super. 2000) (“A PCRA petition may only be filed after an
appellant has waived or exhausted his direct appeal rights”).
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run concurrently. N.T., 12/14/16, at 11–12. The trial court denied
Appellant’s post-sentence motion, and Appellant filed this timely appeal.
Following the appointment of new counsel, Appellant and the trial court
complied with Pa.R.A.P. 1925.
On appeal, Appellant presents a single issue for our consideration:
A. WHETHER APPELLANT’S GUILTY PLEA WAS KNOWINGLY,
INTELLIGENTLY, AND VOLUNTARILY ENTERED UNDER
CIRCUMSTANCES WHERE HE WAS NOT ADVISED OF THE
POTENTIAL FOR CONSECUTIVE SENTENCES WITH A
PROBATION/PAROLE VIOLATION?
Appellant’s Brief at 4.
Appellant argues that he did not enter a knowing, voluntary, and
intelligent plea because he “was not advised of the potential that his
sentence on the probation violation could be run consecutive to the sentence
on the new case.” Appellant’s Brief at 10. The Commonwealth counters that
“Appellant has waived his appellate claims with respect to the validity of his
plea because he failed to preserve these claims before the trial court.”
Commonwealth’s Brief at 7. Upon review, we conclude that the
Commonwealth is correct.
“Settled Pennsylvania law makes clear that by entering a guilty plea,
the defendant waives his right to challenge on direct appeal all
nonjurisdictional defects except the legality of the sentence and the validity
of the plea.” Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa. Super.
2013) (citation omitted). However:
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[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. Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). Failure to
employ either measure results in waiver. Commonwealth v.
Tareila, 895 A.2d 1266, 1270 n. 3 (Pa.Super.2006). Historically,
Pennsylvania courts adhere to this waiver principle because “[i]t
is for the court which accepted the plea to consider and correct,
in the first instance, any error which may have been committed.”
Commonwealth v. Roberts, 237 Pa.Super. 336, 352 A.2d 140,
141 (1975) (holding that common and previously condoned
mistake of attacking guilty plea on direct appeal without first
filing petition to withdraw plea with trial court is procedural error
resulting in waiver; stating, “(t)he swift and orderly
administration of criminal justice requires that lower courts be
given the opportunity to rectify their errors before they are
considered on appeal”; “Strict adherence to this procedure could,
indeed, preclude an otherwise costly, time consuming, and
unnecessary appeal to this court”).
Likewise:
Normally, issues not preserved in the trial court may
not be pursued before this Court. Pa.R.A.P. 302(a).
For example, a request to withdraw a guilty plea on
the grounds that it was involuntary is one of the
claims that must be raised by motion in the trial
court in order to be reviewed on direct appeal. . . .
Commonwealth v. Rush, 959 A.2d 945, 949
(Pa.Super.2008), appeal denied, 601 Pa. 696, 972
A.2d 521 (2009).
Lincoln, 72 A.3d at 609–610.
In determining that Appellant did not preserve his guilty-plea
challenge, the trial court opined as follows:
Here, Appellant did not move to withdraw his guilty plea
prior to sentencing. Further, no argument as to the validity of
the guilty plea was raised in Appellant’s counseled Motion to
Modify and Reconsider Sentence. This issue was also not raised
at the hearing on the Motion to Modify and Reconsider. The
[c]ourt was not required to confront this issue until Appellant
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filed his Statement of Errors Complained of on Appeal on March
13, 2017. Accordingly, the [c]ourt believes that Appellant
waived his right to assert this issue on appeal.
Trial Court Opinion, 3/28/17, at unnumbered 5. We agree.
Appellant did not object to the guilty plea during the plea colloquy.
N.T., 6/13/16, at 2–11. Although Appellant’s counsel filed a timely post-
sentence motion, that motion did not challenge the guilty plea or seek
withdrawal of the plea. Motion to Modify and Reconsider Sentence, 9/6/16.
Additionally, Appellant’s pro se post-sentence motion affords no relief on two
grounds. First, Appellant is not entitled to hybrid representation.
Commonwealth v. Jette, 23 A.3d 1032, 1036 (Pa. 2011). Accordingly, pro
se motions have no legal effect and, therefore, are legal nullities.
Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super. 2007).
Second, even if legally effective, Appellant’s pro se motion did not seek
withdrawal of the plea. Motion to Modify Sentence, 9/12/16.
Thus, we conclude that Appellant cannot obtain review of his claim on
direct appeal because he failed to preserve it properly by either objecting
during the plea colloquy or by raising it in a timely post-sentence motion to
withdraw the plea. Pa.R.Crim.P. 720(B)(1)(a)(i). Accordingly, we decline to
review Appellant’s challenge to the validity of his plea.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2017
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