J-S65018-14

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

LEROY CALBERT

Appellant No. 3485 EDA 2013

Appeal from the Judgment of Sentence November 12, 2013

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0002065-2013

CP-23-CR-0005772-2013

BEFORE: PANELLA, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.: FILED NOVEMBER 25, 2014

Appellant, Leroy Calbert, appeals from the judgment of sentence 

entered on November 12, 2013. We affirm.

The trial court ably summarized the facts underlying the current 

appeal as follows:

On February 27, 2013, at approximately 6:30 [a.m.], 

members of the Delaware County Drug Task Force[,] in 

possession of [a search warrant,] entered [Appellant’s] 

residence . . . and conducted a search [for] and seizure of 

controlled substances. [Appellant] was present during the 

search and was located lying in bed in the front[,] second 

floor bedroom. Recovered from the residence as a result of 

the search were: a scale with residue; [packaging] material 

with gloves and a razor; [one] empty pill bottle; several pill 

bottles containing a total of 243 assorted pills; 282 small 

plastic bags each containing crack cocaine; [four] large 

plastic bags each containing marijuana; [two] boxes of 

ammunition; a holster; a Ruger P95 [s]emi-automatic 9 

[millimeter handgun] loaded with [nine] rounds in the 
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magazine and [one] round in the chamber; a Rossi [.357] 

Magnum revolver loaded with [six] live rounds; a shoe box 

containing $128[.00] in [United States] currency; and[,] 

$473[.00] in [United States] currency from [Appellant’s] 

pocket.

[Appellant] was arrested and charged[, at docket number 

2065 of 2013 (hereinafter “the 2065 case”),] with: 

possession of a controlled substance; [three counts of 

possession of a controlled substance with the] intent to 

distribute [(“PWID”)]; use/possession of drug 

paraphernalia[;] possession of marijuana; possession of a 

firearm prohibited; firearms not to be carried without a 

license; and[,] making repairs, selling, etc. of an offensive 

weapon.

On September 6, 2013, at approximately 3:50 [p.m.], a 

search warrant was served at 515 Chester Pike, Norwood, 

[Pennsylvania]. . . . Prior to entering the residence, officers 

stopped [Appellant] in a silver Ford Fiesta in a rear parking 

lot. As [the] officers stopped [Appellant,] he discarded 

numerous oxycodone hydrochloride pills. A brief struggle 

then ensued . . . [and the officers] plac[ed Appellant] in 

custody. Officers searched [Appellant’s] vehicle and 

recovered a total of 132 oxycodone hydrochloride pills. 

Officers [] searched [Appellant] and recovered a clear 

plastic bag containing [seven] small bags of cocaine, several 

drug tally sheets, and $608[.00] in [United States] 

currency. At approximately 3:53 [p.m.], the officers 

searched the residence of 515 Chester Pike. Seized from 

the residence were drug paraphernalia and several clear 

plastic bags containing cocaine residue. Seized from the 

residence during the search were: drug paraphernalia; 33.8 

grams of cocaine; 5.9 grams of marijuana; two plastic bags 

containing 891 oxycodone hydrochloride pills; several pill 

bottles containing 46 oxycodone hydrochloride pills; and 

[$3,644.00] in [United States] currency.

[Appellant was arrested and charged, at docket number 

5772 of 2013 (hereinafter “the 5722 case”)], with: [three 

counts of] possession of a controlled substance; [two counts 

of PWID]; [three counts of] possession of drug 

paraphernalia; tampering with physical evidence; and 

resisting arrest.
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Trial Court Opinion, 7/1/14, at 1-2 (some internal capitalization omitted).

Prior to trial, Appellant and the Commonwealth arrived at a negotiated 

plea agreement. With respect to the 2065 case, Appellant agreed to plead 

guilty to two counts of PWID, in exchange for the Commonwealth to 

recommend the following sentence: a recommended sentence of 52 to 104 

months in prison for the first PWID conviction and a recommended sentence 

of 72 to 144 months in prison for the second PWID conviction, with the two 

sentences at the 2065 case to run concurrently. See N.T. Guilty Plea 

Hearing, 11/12/13, at 3-4.

With respect to the 5722 case, Appellant agreed to plead guilty to two 

counts of PWID, in exchange for the Commonwealth to recommend the 

following sentence: a recommended sentence of 48 to 96 months in prison 

for the first PWID conviction and a recommended sentence of four years of 

probation for the second PWID conviction, with the two sentences at the 

5722 case to run consecutively. See id. at 7-8. The Commonwealth made 

clear at the guilty plea colloquy, however, that the 5722 case “is consecutive 

to all open cases.” Id. at 8.

On November 12, 2013, Appellant entered his negotiated guilty pleas 

in the trial court. During the guilty plea colloquy, the Commonwealth recited 

the above-summarized, negotiated terms. With respect to the consecutive 

nature of the sentences at the 2065 case and the 5772 case, the following 

discussion occurred between the Commonwealth and Appellant’s attorney:
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[The Commonwealth]: [The 5772 case] is consecutive to all 

open cases.

[Appellant’s Attorney]: I don’t think [Appellant] has any 

other open cases.

[The Commonwealth]: Okay. Then the 2065 – at least to 

the 2065 [case].

Id.

After conducting a colloquy, the trial court accepted Appellant’s guilty 

pleas. That same day, the trial court sentenced Appellant in accordance with

the negotiated terms, including the term that “the sentence in [the 5722 

case] shall run consecutive with the sentence in [the 2065 case].” Id. at 

28. In relevant part, the trial court’s November 12, 2013 on-the-record 

sentence reads:

All right. With regard to [the 2065 case], Count 2, [PWID], 

an ungraded felony, cocaine, I sentence you to 52 to 104 

months SCI. With regard to Count 3, [PWID], ungraded 

felony, oxycodone, I sentence you to 72 to 144 months SCI, 

which shall run concurrent with Count 2. . . .

With regard to [the 5772 case], Count 4, [PWID], an 

ungraded felony, cocaine, I sentence you to 48 to 96 

months SCI. . . . With regard to Count 5, [PWID], an 

ungraded felony, which is oxycodone, I sentence you to four 

years [of] probation to run consecutive with Count 4. . . .

The sentence in [the 5722 case] shall run consecutive with 

the sentence [in the 2065 case].

Id. at 27-28 (some internal capitalization omitted).

Appellant did not object to the above sentence and Appellant did not 

seek to withdraw his guilty pleas following sentencing. 
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At the conclusion of the November 12, 2013 sentencing hearing, 

Appellant was informed – on the record – that he had ten days to file a postsentence motion and 30 days to file a notice of appeal to the Superior Court. 

Id. at 41. Further, the trial court provided Appellant with a written 

document entitled “Statement of Post-Sentence Rights.” Appellant initialed 

every paragraph of the document and signed the document at the end. By 

doing so, Appellant acknowledged such things as:

By placing my initials on the line provided next to each of 

the paragraphs in this document, I agree that I have read, 

understand[,] and my lawyer has explained to my 

satisfaction the content and meaning of each paragraph.

. . .

If I file a Post Sentence Motion with this Court, it must be in 

writing and be filed with the Delaware County Office of 

Judicial Support within 10 days of the date I am sentenced.

This Post-Sentence Motion must state the specific relief 

requested, the specific issues to be considered and the 

specific reasons or grounds for the relief requested.

If I pled guilty or nolo contendere, this Post-Sentence 

Motion may include: . . . a motion asking that the sentence 

imposed be changed; a motion asking that I be permitted to 

take back my plea(s) because it (they) was (were) not 

voluntary, knowingly[,] and intelligently entered; a motion 

challenging the denial of my motion to take back my 

plea(s).

. . .

If I decide to file a Post-Sentence Motion and/or appeal to a 

higher court, I have the right to be represented by an 

attorney and if I cannot afford an attorney, upon my timely 

request to this Court, one will be provided to me free of 
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charge at no cost or expense to me and I will not be 

required to pay any costs normally associated with a PostSentence Motion and/or an appeal.

Appellant’s Statement of Post-Sentence Rights, 11/12/13, at 1-2.

Finally, the trial court conducted an on-the-record colloquy of 

Appellant, to ensure that Appellant’s trial counsel explained to Appellant –

and that Appellant understood – everything that was contained in the 

written “Statement of Post-Sentence Rights.” Specifically, Appellant 

testified: that he had initialed every paragraph in the “Statement of PostSentence Rights;” that he had signed the document at the end; that his 

attorney had explained everything contained in the document; and, that he 

did not have any questions regarding his post-sentence rights. N.T. 

Sentencing, 11/12/13, at 33-42.

On December 5, 2013, Appellant filed three pro se documents: a 

notice of appeal to the Superior Court; a “motion for leave to file motion to 

withdraw guilty plea out of time;” and, a “motion to withdraw guilty plea.”1 

____________________________________________

1 Appellant is represented by new counsel on appeal; yet, the record does 

not contain any order granting Appellant’s original trial counsel leave to 

withdraw. See Pa.R.Crim.P. 120(B)(1) (“[c]ounsel for a defendant may not 

withdraw his or her appearance except by leave of court”). Further, within 

Appellant’s brief to this Court, Appellant does not explain what occurred to 

his original trial counsel following the plea, or why Appellant acted in a pro 

se capacity when he filed his December 5, 2013 notice of appeal and 

motions. Moreover, we note that nothing in the record indicates that the 

clerk of courts of Delaware County complied with Pennsylvania Rule of 

Criminal Procedure 576(A)(4), which requires that, “[i]n any case in which a 

defendant is represented by an attorney, if the defendant submits for filing a 

written motion, notice, or document that has not been signed by the 

defendant’s attorney, the clerk of courts shall accept it for filing . . . [and 

(Footnote Continued Next Page)
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However, given that Appellant had filed a notice of appeal and given that 

Appellant’s post-sentence motion was untimely by approximately 13 days, 

the trial court did not rule upon Appellant’s post-sentence motion. See Trial 

Court Opinion, 6/30/14, at 5.

On January 16, 2014, Appellant filed a pro se “Request to Proceed In 

Forma Pauperis for Purposes of Appeal and for Appointment of Counsel on 

Appeal.” The trial court appointed counsel to represent Appellant on appeal 

and counsel has filed a brief to this Court. Appellant now raises one claim 

on appeal:

The [trial c]ourt committed error by denying [Appellant’s] 

post-sentence motion to withdraw guilty plea on June 30, 

2014.[2] [Appellant] contends that his guilty pleas of 

November 12, 2013 were not knowing, voluntary or 

intelligent, for the following reason[]:

. . .

(Footnote Continued) _______________________

forward a copy of the document] to the defendant’s attorney. . . .” 

Pa.R.Crim.P. 576(A)(4). 

2 Within Appellant’s brief to this Court, Appellant claims that “[t]he [trial 

c]ourt committed error by denying [Appellant’s] post-sentence motion to 

withdraw guilty plea on June 30, 2014.” Appellant’s Brief at 6 (emphasis 

added). Appellant is incorrect to state that the trial court “denied” his postsentence motion. Rather, the trial court refused to consider Appellant’s 

post-sentence motion, as Appellant had already filed a notice of appeal from 

the judgment of sentence and the post-sentence motion was untimely. The 

“June 30, 2014” date that Appellant references in his brief is merely the date 

that the trial court filed its opinion pursuant to Pennsylvania Rule of 

Appellate Procedure 1925(a). See Trial Court Opinion, 6/30/14, at 1-8.
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Appellant contends that he was never adequately informed 

that his sentences in these two cases (incarcerations of six 

to [12] years and four to eight years[,] respectively) would 

run consecutively. Appellant insists that he was told that 

the sentences would run concurrently. He further contends 

that he would never have entered into these negotiated 

guilty pleas if he had known that the total period of 

incarceration was ten years at a minimum.

Nowhere in this guilty plea colloquy before the [trial c]ourt[] 

was [Appellant] asked if he understood that the sentences 

in these two cases would run consecutively for a total of ten 

years[’] incarceration. The guilty plea colloquy transcript 

does not reflect that [] Appellant ever expressed his 

understanding and acceptance of [the] precise nature of the 

terms of incarceration.

Appellant’s Brief at 6.

On appeal, Appellant claims that he should have been permitted to 

withdraw his guilty plea, as “he was never adequately informed that his 

sentences in these two cases . . . would run consecutively.” Id. This claim 

is waived, as Appellant failed to raise it in a timely manner before the trial 

court. 

Under our rules and precedent, “[i]ssues not raised in the lower court 

are waived and cannot be raised for the first time on appeal.” Pa.R.A.P. 

302(a). Therefore, to preserve a challenge to a guilty plea, the individual 

must raise the issue prior to sentencing, at sentencing, or in a timely postsentence motion. Failing this, the challenge is waived. Commonwealth v. 

Tareila, 895 A.2d 1266, 1270 n.3 (Pa. Super. 2006); Commonwealth v. 

D’Collanfield, 805 A.2d 1244, 1246 (Pa. Super. 2002). 
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In the case at bar, Appellant failed to confront the trial court with any 

challenge to his guilty plea during the sentencing hearing. Further, 

Appellant’s attempt to raise the claim in his post-sentence motion failed, as 

Appellant had already filed a notice of appeal from his judgment of sentence 

and the post-sentence motion was untimely by approximately 13 days. As a 

result, the trial court refused to address the post-sentence motion on the 

merits. See Pa.R.A.P. 1701(a) (“after an appeal is taken . . . , the trial court 

. . . may no longer proceed further in the matter”); 42 Pa.C.S.A. § 5505 (“a 

court upon notice to the parties may modify or rescind any order within 30 

days after its entry, notwithstanding the prior termination of any term of 

court, if no appeal from such order has been taken or allowed”); 

Pa.R.Crim.P. 720(a)(1) (“a written post-sentence motion shall be filed no 

later than 10 days after imposition of sentence”); Commonwealth v. 

Dreves, 839 A.2d 1122, 1128 (Pa. Super. 2003) (en banc) (“under 42 

Pa.C.S.A. § 5505, if no appeal ha[s] been taken, within 30 days after the 

imposition of sentence, the trial court has the discretion to grant a request 

to file a post-sentence motion nunc pro tunc”); Commonwealth v. Moore, 

978 A.2d 988, 991 (Pa. Super. 2009) (“[t]o be entitled to file a postsentence motion nunc pro tunc, a defendant must, within 30 days after the 

imposition of sentence, demonstrate sufficient cause, i.e., reasons that 

excuse the late filing. When the defendant has met this burden and has 

shown sufficient cause, the trial court must then exercise its discretion in 
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deciding whether to permit the defendant to file the post-sentence motion 

nunc pro tunc”) (internal quotations, citations, and corrections omitted); see 

also Commonwealth v. Cooper, 27 A.3d 994, 1007 (Pa. 2011) (pro se

filings by represented defendants may have legal effect and are not “legal 

nullities”).

Appellant’s claim on appeal is thus waived.

Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/25/2014