Com. v. Batterson

• Decision Date: 06 January 1992
• Citation: 411 Pa.Super. 252,601 A.2d 335
• Parties: COMMONWEALTH of Pennsylvania v. Lewis BATTERSON, Appellant.
• Court: Pennsylvania Superior Court

Page 335

601 A.2d 335

411 Pa.Super. 252

COMMONWEALTH of Pennsylvania v. Lewis BATTERSON, Appellant.

Superior Court of Pennsylvania.

Argued Sept. 17, 1991.

Filed Jan. 6, 1992.

Marueen T. Beirne, Athens, for appellant.

Mark W. Smith, Towanda, for appellee.

Before POPOVICH, HUDOCK and CERCONE, JJ.

CERCONE, Judge:

This is a direct appeal from the judgment of sentence entered after appellant, Lewis Batterson, pled guilty to recklessly endangering another person. ¹ After appellant entered his plea, but prior to sentencing, he learned that the Commonwealth had requested application of the deadly weapon enhancement provision because a motor vehicle was involved in the incident underlying the charge. Appellant thereafter petitioned to withdraw his guilty plea. The trial court denied appellant's request but deferred sentencing in order to give defense counsel time in which to prepare an appropriate argument. Appellant was subsequently sentenced to serve a term of incarceration of between one (1) and two (2) years. For the reasons that follow, we vacate the judgment of sentence and remand for further proceedings.

The final judgment of sentence was pronounced against appellant on January 22, 1991. On that date, prior counsel filed a post-sentence motion to withdraw appellant's guilty plea. This motion was cast in the form of an appeal from the trial court's earlier dismissal of the pre-sentence motion to withdraw the plea. The trial court treated this as a post-sentencing motion and denied relief. Prior counsel filed no other post-sentencing motions, and was granted leave to withdraw representation on February 11, 1990. ² New counsel was appointed on February 14, 1990 to handle appellant's direct appeal. Although no supplementary post-sentencing motions nunc pro tunc were presented to the lower court, a timely notice of appeal was lodged with this court.

Current counsel has raised the following claims on appellant's behalf:

[1.] Whether the trial court erred when it included the deadly weapon enhancement in the sentence.

[2.] Whether the trial court erred in denying [appellant's] presentence motion to withdraw guilty plea.

[3.] Whether [the] trial court erred in denying [appellant's] postsentence motion to withdraw guilty plea.

[4.] Whether guilty plea counsel was ineffective in failing to be aware of and inform [appellant] of [the] deadly enhancement provision.

[5.] Whether guilty plea counsel was ineffective in failing to file [a] motion for reconsideration within 10 days of sentencing?

[6.] Whether guilty plea counsel was ineffective in failing [to] assert a manifest injustice to [appellant] in his post sentence motion to withdraw guilty plea.

[7.] Whether [prior] counsel was ineffective in advising appellant to enter a guilty plea.

We shall address these issues seriatim.

Appellant first argues that the trial court erred by including the deadly weapon enhancement in the sentence imposed. The Commonwealth has correctly characterized this as a challenge to the discretionary aspects of sentence. ³ We agree with the Commonwealth's contention that appellant has waived this claim for failure to comply with the applicable procedural requirements. See 42 Pa.C.S.A. § 9781(b); Pa.R.A.P., Rule 2119(f), 42 Pa.C.S.A.; Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Additionally, this issue must also be deemed waived because it has been raised for the first time on appeal and was not preserved in the lower court via a motion to modify sentence. We will therefore not address appellant's claim in this context.

Appellant's second and third claims are that the lower court erred in denying both his pre- and post-sentencing motions to withdraw his guilty plea. However, our careful scrutiny of the record discloses no basis on which we can grant the requested relief. The lower court has set forth a correct rationale for refusing to permit appellant to withdraw his plea, and we affirm on that basis.

The remaining issues raised by appellant concern the allegedly ineffective representation provided by prior counsel. We note that the procedural posture of this case has deprived the lower court of any meaningful opportunity to address these allegations because they have been raised for the first time on direct appeal. We are also cognizant of the Commonwealth's contention that appellant has waived these issues because they have not been properly preserved via post-verdict motions or by a motion to modify sentence. We agree with the Commonwealth that issues not raised in post-verdict motions will not ordinarily be considered on appeal. Commonwealth v. Monarch, 510 Pa. 138, 146, 507 A.2d 74, 78 (1986). However, where ineffectiveness of counsel is alleged, that claim must be raised at the earliest stage in the proceedings at which counsel whose effectiveness is being challenged no longer represents appellant. Commonwealth v. O'Neil, 393 Pa.Super. 111, 114, 573 A.2d 1112, 1114 (1990). Appellant has in fact taken his first opportunity to raise his claims against prior counsel. Our law does not require more than this. See, e.g., Commonwealth v. Broadwater, 330 Pa.Super. 234, 479 A.2d 526 (1984) (ineffectiveness claims which have been raised at the first available opportunity will not be deemed waived).

The validity of appellant's allegation regarding prior counsel's failure to file a motion for reconsideration of sentence is clear on the face of the existing record. In the interest of judicial economy, we will therefore consider the merits of this issue. See Commonwealth v. Rodriguez, 526 Pa. 268, 585 A.2d 988 (1991) (in the "interest of judicial economy," Pennsylvania Supreme Court ruled upon ineffectiveness claim absent determination by lower courts because record was adequate to permit resolution of the issue). The applicable standard by which we evaluate ineffectiveness of counsel is as follows:

The threshold inquiry in such claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim. If this threshold is met, it must next be established that the particular course chosen by counsel had no reasonable basis designed to effectuate his client's interests. Finally, we require that the defendant establish how counsel's commission or omission prejudiced him.

Commonwealth v. Durst, 522 Pa. 2, 4-5, 559 A.2d 504, 505 (1989) (citations omitted).

The contention underlying appellant's ineffectiveness claim is that prior counsel should have filed a ...