J. S 16034/16

NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENN SYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA Appellee :

:

v. :

: COLLEEN CLARK, :

: Appellant : No. 1092 EDA 2015

Appeal from the Judgment of Sentence April 9, 2015 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP

- 46

- CR

- 0003055

- 2013

BEFORE: OTT, J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY DUBOW, J.: FILED APRIL 13, 2016

Appellant, Colleen Clark, appeals from judgment of sentence entered

in the Court of Common Pleas of Montgomery County following her third

conviction for Driving Under the Influence (DUI) 1 and related offenses. After

careful review, we find that Appellant did not properly preserve the issues

raised on a ppeal and, has, therefore waived appellate review. Accordingly,

we affirm.

The trial court set forth the factual and procedural history of this case

as follows:

On February 16, 2013, Appellant was arrested for [DUI] in Lower Moreland Township, Montgome ry County. On April 25, 2014, Appellant entered an open guilty plea to a second offense DUI charge. A sentencing hearing was scheduled for August 7, 2014.

1 75 Pa.C.S. § 3802(c).J. S16034/16

- 2

-

Prior to the sentencing hearing, Appellant left the Commonwealth of Pennsylvania to accept an emplo yment opportunity in Florida. Appellant failed to appear for her scheduled sentencing hearing and a bench warrant was issued for her arrest. After Appellant was arrested and extradited to Pennsylvania, a new sentencing hearing was held on January 12, 201 5. On that date, the Commonwealth informed the [trial] court that it had miscalculated the number of Appellant's previous DUI convictions. The present charge, as it turned out, was Appellant's third offense in the last ten years. In light of this fact, [ the trial] court sua sponte withdrew Appellant's open guilty plea and vacated the disposition from April 24, 2014. On February 10, 2015, a bench trial was held where Appellant was found guilty of two counts of DUI and one count of Driving with a Suspended License

- DUI Related. On April 9, 2015, [the trial] court sentenced Appellant to serve fifteen months to five years of incarceration.

Trial Ct. Op., filed 7/8/15, at 1

- 2 (some capitalization omitted).

On April 17, 2015, Appellant filed a timely Notice of Appeal and on

April 27, 2015, the trial court ordered her to file a Statement of Matters

Complained of on Appeal pursuant to Pa.R.A.P. 1925. On May 15, 2015,

Appellant filed a “Preliminary Concise Statement of Matters Complained of

Pursuant to P[a].R. A.P. 1925” and raised one issue. The Appellant

challenged the trial court’s authority to reject her guilty plea:

Whether the trial court can sua sponte reject [A]ppellant’s guilty plea, after accepting the plea, closing the plea proceedings, scheduling th e matter for sentencing, ordered a PSI and PPI, and the [Appellant] relying on the representations to her detriment, merely because the Commonwealth claims it made a mistake in tabulating the number of DUI’s defendant had sustained.J. S16034/16

- 3

-

1925(b) Statement at 1 . Appellant did not challenge the trial court’s

reasoning or discretion to reject her guilty plea. 2

Subsequently, in her brief, Appellant concedes that the trial court had

the authority to reject her guilty plea, and for the first time, challenges the

trial court’s reasons or discretion in doing so. In particular, Appellant

frames her argument in this manner in her brief:

Whether a trial court abuses discretion and/or acts ultra vires when it allegedly acts sua sponte to reject a guilty plea merely bec ause the Commonwealth asserts months after the plea hearing a failure in having detected in its discovery that the said [Appellant] had incurred her third DUI instead of only her second, after colloquying the [Appellant], accepting the plea, closing the pl ea proceedings, scheduling the matter for sentencing, ordering a PSI and a PPI, and the [Appellant] relying on such representations to her detriment?

Appellant’s Brief at 8 (capitalization omitted).

The trial court noted that the Appellant only challenge d the trial court’s

authority
, and not its discretion , to reject a guilty plea in her 1925(b)

Statement, so the trial court in its 1925(a) Opinion only addressed whether

it had the authority to reject the guilty plea. The trial court specifically

found : “Appellant does not challenge whether [the trial court] abused its

discretion by withdrawing her plea, thus the reason for doing so will not be

discussed.” Trial Ct. Op., filed 7/8/15, at 2 n.1 (emphasis added).

2 On March 25, 2015, the trial court granted Appellant an additional thirty days to supplement the 1925(b) Statement. Appellant failed to do so.J. S16034/16

- 4

-

It is well settled that issues not raised in a 1925(b) Statement are

waived for purposes of appellate review. Pa.R.A.P. 1925(b)(4)(vii);

Commonwealth v. Hill , 16 A.3d 484, 494 (Pa. Super. 2011). Likewise,

issues raised in a 1925(b) Statement, but not raised and developed in

Appellant’s Brief are deemed waived. Commonwealth v. Bullock , 948

A.2d 818, 823 (Pa. Super. 2008).

The concepts of a trial court’s authority and discretion are two

separate and distinct issues that must be separately raised and briefed in

order to preserve the issues for app eal. The Appellant raised the issue of

the trial court’s authority to reject the guilty plea in her 1925(b)

Statement, but failed to address the issue in her brief. Therefore, the

Appellant waived her right to challenge the trial court’s authority to reje ct

the guilty plea.

Similarly, the Appellant, in her 1925(b) Statement, failed to raise the

issue of the trial court’s discretion in rejecting her guilty plea and thus

waived the issue on appeal. The Appellant cannot resurrect a challenge to

the trial cour t’s discretion by raising the issue for the first time in her brief.

Therefore, Appellant has waived appellate review of the issues of whether

the trial court had the discretion or authority to reject her guilty plea.

Judgment of sentence affirmed. Juris diction relinquished.J. S16034/16

- 5

-

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/13/2016