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

COMMONWEALTH OF PENNSYLVANIA

v.

JOHNNY JENKINS

Appellant :
:
:
:
:
:
:
:
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 698 EDA 2017 Appeal from the Judgment of Sentence January 18, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0013768

- 2012

BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J. *
MEMORANDUM BY NICHOLS, J.: FILED FEBRUARY 12, 2018
Appellant Johnny Jenkins appeals from the judgment of sentence
imposed following the entry of his negotiated guilty plea to one count of
felony

- three r eceiving s tolen p roperty (RSP)

. 1 Appellant argues that he is

entitled to withdraw his plea because the t rial court did not advise him of the
presumption of innocence. We affirm.
We adopt the facts and procedural history set forth by the trial court’s

opinion. See Trial Ct. Op., 6/28/17, at 1

- 5. On January 18 , 2017, Appellant
entered a negotiated guilty pl ea to one count of RSP. Following his completion
of a written guilty plea colloquy form and an oral colloquy on the record, the
court accepted the plea and imposed the negotiated sentence of 111⁄2 to 23

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 3925(a)

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- 2

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months of house arrest, followed by 36 months of repor ting probation. 2
Appellant , who was duly represented by counsel, did not object to the plea
colloquy before or at sentencing , nor did he file a post

- sentence motion
seeking to withdraw the plea. On February 16, 2017, Appellant filed a timely
notice of appeal. Appellant complied with the trial court’s order to file a

Pa.R.A.P. 1925(b) statement

. Appellant raises a single issue for our review: “ Whether Appellant’s
Guilty Plea was not Knowing, Intel ligent or Voluntary

. ” Appellant’s Brief at 3

. Appellant argues that the trial court failed to inform him during the oral plea
colloquy that he was presumed innocent until proven guilty. Id. at 7. This,

he asserts , “is a critical factor in a knowing dec ision to enter into a guilty plea”
and that “[he] simply could not have made a valid plea without knowing this
presumption.” Id. Appellant concludes that, as a result of that defect, his
plea was not knowing, intelligent, and voluntary. Id. Appellant t hus claims

that he is entitled to withdraw the plea and proceed to trial. We conclude that

this issue has been waived.

It is well settled that
[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 w ithin ten days of sentencing. Failure to employ ei t her measure results in waiver. Histo rically, Pennsylvania courts adhere to this waiver principle because “[i]t is for the court which accepted the plea to consider and correct,

2 The written guilty plea colloquy was not included in the certified record, but was referenced on the record during the oral colloquy. The trial court notes in its opinion that the original colloquy form was misplaced by the Office of Judicial Records

. D espite several months of inquiry, it could not be located.J

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in the first instance, any error which may have been committed.” Commonwealth v. Roberts , . . . 352 A.2d 140, 141 ( [ Pa. Super. ] 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 ad ministration 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 unneces sary appeal to this court”).

Commonwealth v. Lincoln , 72 A.3d 606, 609

- 10 (Pa. Super. 2013) (some
citations omitted).

Here, Appellant did not object to the plea colloquy and did not file a

post

- sentence motion to withdraw his plea prior to filing a direct appeal.
Accordingly, Appellant’s challenge to the propriety of the plea colloquy is

waived , and we are precluded from addressing the merits of his sole issue on
appeal

. See id

. at 610

. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/12/18