J-A26039-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAMESON BRADLEY FITZGERALD

Appellant No. 2074 MDA 2013

Appeal from the Judgment of Sentence November 5, 2013

In the Court of Common Pleas of Franklin County

Criminal Division at No(s): CP-28-CR-0002089-2013

BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED NOVEMBER 12, 2014

In this direct appeal, Jameson Fitzgerald attempts to challenge a guilty 

plea that he entered to retail theft. We conclude that Fitzgerald has waived 

his right to challenge his guilty plea by (1) failing to make any challenge 

during his guilty plea hearing and then (2) withdrawing his post-sentence 

motions before the trial court ruled on them. Accordingly, we affirm.

Fitzgerald was charged with ten counts of retail theft and one charge 

of possession of a controlled substance and drug paraphernalia. On 

November 5, 2013, he waived his preliminary hearing on all charges and 

pled guilty to one count of retail theft. All other charges were dismissed. He 

made no objections of any kind during his guilty plea hearing. 
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On November 15, 2013, defendant filed post-sentence motions 

seeking leave to withdraw his guilty plea on three grounds: first, his plea 

was not knowing or intelligent; second, the “Early Accountability Program” 

(“EAP”) under which he entered his plea precluded his right to meaningful 

constitutional representation; and third, the EAP operates under rules of 

criminal procedure that are not authorized by the Pennsylvania Supreme 

Court.

On November 20, 2013, Fitzgerald filed a praecipe to withdraw his 

post-sentence motions. On the same date, he appealed his judgment of 

sentence to this Court.

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). 

Pennsylvania courts enforce this 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, 352 A.2d 

140, 141 (Pa.Super.1975) (tactic of attacking guilty plea on direct appeal 

without first filing petition to withdraw plea in trial court constitutes waiver, 

because “(t)he swift and orderly administration of criminal justice requires 

that lower courts be given the opportunity to rectify their errors before they 
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are considered on appeal,” and “strict adherence to this procedure could, 

indeed, preclude an otherwise costly, time consuming, and unnecessary 

appeal to this court”). See also Commonwealth v. Lincoln, 72 A.3d 606 

(Pa.Super.2013) (collecting cases and affirming judgment of sentence due to 

appellant’s failure to file post-sentence motions challenging voluntariness of 

guilty plea and failure to object to guilty plea during guilty plea hearing).

In view of these decisions, we consider the technique of filing a motion 

to withdraw a guilty plea but then withdrawing the motion several days later 

tantamount to filing no motion at all, because the withdrawal of the motion 

deprives the trial court of any opportunity to rectify its alleged errors before 

an appeal. For this reason, we hold that Fitzgerald has waived his challenge 

to his guilty plea.

Fitzgerald attempts to evade waiver by arguing that his challenge to 

his guilty plea involves a non-waivable jurisdictional defect. He contends 

that the trial court’s failure to obtain the Supreme Court’s approval of local 

rules underlying the EAP program deprives the trial court of jurisdiction to 

impose EAP sentences or accept EAP guilty pleas. Procedural intricacies 

such as these do not amount to jurisdictional defects. The trial court clearly 

had jurisdiction to adjudicate retail theft and drug possession charges. The 

question whether the court used the wrong procedural mechanism to 

address these charges does not amount to a jurisdictional defect. Cf.

Commonwealth v. Hatchin, 709 A.2d 405 (Pa.Super.1997) (filing a 
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criminal complaint instead of an information does not constitute a 

jurisdictional defect that deprives the court of jurisdiction over defendant). 

Since the error in question is not a jurisdictional defect, Fitzgerald had the 

duty to either object during his guilty plea hearing to the EAP program or file 

and prosecute a motion to withdraw his guilty plea after his sentence. By 

filing a motion to withdraw his plea but then withdrawing it a few days later, 

he waived his challenge to EAP procedures.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/12/2014