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HomeMy WebLinkAboutCP-21-CR-2491-2006COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. : CHARGES: (1) DUI (3) DUS (DUI RELATED) (SMRY) DANNY LAWRENCE, JR., OTN: L299041-1 : CP -21 -CR -2491-2006 IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., February 13, 2008. In this criminal case, Defendant has filed a pro se appeal from a judgment of sentence for driving under the influence and driving under suspension (DUI related),' imposed following the entry of a guilty plea.2 Notwithstanding an order to file a statement of matters complained of on appeal issued on December 17, 2007, specifically advising Defendant that issues not raised in the statement would be waived,3 Defendant has failed to file such a statement. This opinion in support of the judgment of sentence is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS As the result of an incident alleged to have occurred at 9:22 a.m. on Saturday, June 28, 2006, in Upper Allen Township, Cumberland County, Pennsylvania, Defendant was charged with two forms of driving under the influence and with driving under suspension (DUI related) .4 He entered a counseled plea of guilty to driving under the influence, general impairment, and driving under suspension (DUI related) on July 30, 2007;5 the factual basis for the ' Defendant's Notice of Appeal, filed November 14, 2007. 2 Defendant's counseled guilty plea was entered on July 30, 2007. s Order of Court, December 17, 2007. 4 Criminal Complaint, filed June 29, 2006. s Order of Court, July 30, 2007. plea was provided by the Commonwealth during the guilty plea colloquy as follows: The facts are that on June 28th, 2006, around 9:22 in the morning, while in Upper Allen Township, Cumberland County, the Officer was approached by a motorist who was complaining about a tan vehicle with a spare tire on the left rear of the vehicle with a black male driver with braided hair driving in a reckless and erratic manner. The Officer caught up with the Defendant, who turned out to be the Defendant, observed Defendant's bad driving and the Defendant strike a median, and then initiated a traffic stop. The traffic stop was initiated in York County. The bad driving occurred in Cumberland County into York County. When the Officer approached the Defendant, he noticed the classic signs of intoxication. Within two hours he had a breath sample of .106, and according to PennDOT driving record, the Defendant was driving under suspension, DUI -related .6 No motion to withdraw the plea was filed prior to sentence. Defendant was sentenced on October 9, 2007.' At the conclusion of the sentence, the court advised Defendant of his post -sentence rights as follows: Mr. Lawrence, you have now been sentenced, and I need to inform you of certain things. First, you have the right to file a post -sentence motion. Post -sentence motions include a motion challenging the validity of a plea of guilty or nolo contendere, or the denial of a motion to withdraw a plea of guilty or nolo contendere; a motion for judgment of acquittal; a motion in arrest of judgment; a motion for a new trial; and a motion to modify sentence. Such a post -sentence motion must be filed within ten days of today's date. You have a right to the assistance of counsel in the preparation and filing of such a motion, and if you are or continue to be unable to afford counsel, you have the right to representation of counsel free of charge. Second, you have a right to file an appeal to the Superior Court of Pennsylvania, and the right to assistance of counsel on the appeal, including free counsel if you are unable to afford private counsel. 6 N.T. 3, Guilty Plea Colloquy, July 30, 2007. ' Order of Court, October 9, 2007. Defendant was sentenced (1) to the mandatory minimum sentence applicable to the driving under suspension charge of ninety days in the Cumberland County Prison and a fine of $1,000.00 and (2) a period of imprisonment of not less than 15 days nor more than 10 months in the Cumberland County Prison on the driving under the influence charge, said sentences to run consecutively to each other. Id. The sentencing order was later amended to reduce the maximum period of imprisonment on the driving under the influence charge to six months, in conformity with the statutory maximum for that form of the offense under Defendant's circumstances. Order of Court, October 25, 2007. 2 Any appeal must be taken within 30 days of today's date, unless you have filed a timely post -sentence motion, in which case the appeal must be taken within 30 days of the denial of such a motion. A motion could be denied by an order of the Court affirmatively ruling upon the motion or by operation of law if the Court fails to act upon the motion within 120 days. Third, issues raised before or during trial are deemed preserved for appeal, whether or not a Defendant elects to file a post -sentence motion. Fourth, a Defendant who has been sentenced has a qualified right to bail under the rules of criminal procedure. One of those rules, when the sentence imposed includes imprisonment of less than two years, the Defendant shall have the same right to bail as before a verdict; when the sentence imposed includes imprisonment of two years or more, the Defendant shall not have the same right to bail as before verdict but bail may be allowed in the discretion of the judge. When bail is set after sentencing, the Court shall condition bail either upon the Defendant's filing a post -sentence motion and perfecting an appeal, or, when no post -sentence motion is filed on perfecting an appeal within the time permitted by law....' No motion to withdraw the guilty plea or for modification of sentence was filed following sentence. Defendant thereafter filed a pro se appeal from the judgment of sentence.9 As noted, he has not complied with an order directing that he file a statement of matters complained of on appeal. DISCUSSION To the extent that Defendant's appeal from the judgment of sentence is premised upon the validity of his guilty plea, the issue has been waived by reason of his failure to move to withdraw the guilty plea in this court, either before or after sentence. See Commonwealth v. Lee, 460 Pa. 324, 333 A.2d 749 (1975); Commonwealth v. Faust, 324 Pa. Super. 492, 471 A.2d 1263 (1984); Commonwealth v. Hunter, 240 Pa. Super. 23, 360 A.2d 702 (1976). To the extent that Defendant's appeal from the judgment of sentence is premised upon a challenge to the discretionary aspects of his sentence, the issue ' N.T. 7-9, Sentencing Proceeding, October 9, 2007. 9 Defendant's Notice of Appeal, November 14, 2007. It may be noted that the October 9, 2007, sentencing order was not docketed until October 18, 2007. 3 has been waived by reason of his failure to move to modify the sentence in this court. See Commonwealth v. Newton, 2005 PA Super 150, 875 A.2d 1088. Finally, Defendant's failure to comply with an order directing him to file a statement of matters complained of on appeal deprives this court of the ability to address more fully the merits of any claim for relief from the judgment of sentence, and represents a waiver of all such issues on appeal. See Dunbar v. Downington Area School District, 901 A.2d 1120 (Pa. Commw. Ct. 2006). Michelle H. Sibert, Esq. Chief Deputy District Attorney Danny L. Lawrence, Jr. Cumberland County Prison Defendant, pro Se 11 BY THE COURT, J. Wesley Oler, Jr., J.