Com. v. Watson

• Decision Date: 31 October 2003
• Citation: 835 A.2d 786
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Gary James WATSON, Appellant.
• Court: Pennsylvania Superior Court

835 A.2d 786

COMMONWEALTH of Pennsylvania, Appellee, v. Gary James WATSON, Appellant.

Superior Court of Pennsylvania.

Submitted May 19, 2003.

Filed October 31, 2003.

John Ciroli, Jr., Pittsburgh, for appellant.

Michael W. Streily, Deputy Dist. Atty., Karen Edwards, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

Before: DEL SOLE, P.J., GRACI, and BECK, JJ.

GRACI, J.

¶ 1 Appellant, Gary James Watson ("Watson"), appeals from the judgment of sentence entered on August 1, 2002, in the Court of Common Pleas of Allegheny County. After careful review, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

¶ 2 Watson was charged with two counts of simple assault, 18 Pa.C.S.A. §§ 2701(a)(2) and 2701(a)(3), and one count of terroristic threats, id. at § 2706(a)(1), for putting a knife to the throat of his wife and threatening to kill her on December 7, 2001.

¶ 3 On May 14, 2002, Watson pleaded guilty to one count of simple assault and one count of terroristic threats in exchange for the Commonwealth's withdrawal of the other count of simple assault.

¶ 4 The court accepted the plea, and, on August 1, 2002, Watson was sentenced to two-and-a-half to five years imprisonment for terroristic threats. No further penalty was imposed for the simple assault.

¶ 5 On August 30, 2002, Watson filed a notice of appeal. The trial court directed the filing of a statement of matters complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. Pa.R.A.P.1925(b). In response to that order, Watson¹ presented the following questions, inter alia, all of which were addressed by the trial court in its Rule 1925(a) Opinion which was filed on January 15, 2003:

a. Mr. Watson's sentence is unreasonable, manifestly excessive and an abuse of discretion because the court failed to put adequate reasons on the record for imposing the statutory maximum sentence, which fell beyond the aggravated range of the guidelines. If counsel did not adequately preserve this issue for appeal, she was ineffective.

b. The factual summary was insufficient to support the guilty plea when the Commonwealth did not present facts demonstrating that the threats were not made as mere spur-of-the-moment threats which result from anger. Counsel was ineffective in failing to object to this fatally insufficient factual summary.

...

f. Plea counsel was ineffective for failing to correct the defective colloquy or move to withdraw the guilty plea based on the issues presented in arguments above.

Concise Statement of Matters to Be Raised on Appeal, 11/22/02, at 2-3.

¶ 6 Watson now raises the following issues for our review:

I. Was the factual summary sufficient to support the guilty plea when the Commonwealth did not present facts demonstrating that the threats made were not made as mere spur-of-the-moment threats which result from anger? Was counsel therefore effective when she failed to correct the colloquy and when she failed to submit a motion to withdraw Mr. Watson's plea?

...

II. Was Mr. Watson's sentence unreasonable, manifestly excessive, and an abuse of discretion when the court failed to put adequate reasons on the record for imposing the statutory maximum sentence, which fell beyond the aggravated range of the guidelines; and was counsel effective when she failed to challenge the sentence on these grounds?

...

III. Does the recent decision in Commonwealth v. Grant, where the Pennsylvania Supreme Court set forth a new rule regarding the consideration of ineffective assistance of counsel claims that are raised on the direct appeal from a defendant's judgment of sentence, mandate the denial of the ineffective assistance of counsel claims raised in Mr. Watson's appeal?

...

Appellant's Brief, at 5.

II. DISCUSSION

¶ 7 Watson first argues that the factual summary was not sufficient to support the guilty plea since the Commonwealth did not present facts demonstrating that the threats made were not mere spur-of-the-moment threats resulting from anger. "Issues not raised in the lower court are waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302(a); see also Commonwealth v. D'Collanfield, 805 A.2d 1244, 1246 (Pa.Super.2002)

(finding that the appellant's issue challenging his guilty plea was waived since it was not raised at the sentence colloquy, at the sentencing hearing, or through a post-sentence motion). Moreover, "[a] party cannot rectify the failure to preserve an issue by proffering it in response to a Rule 1925(b) order." Commonwealth v. Kohan, 825 A.2d 702, 706 (Pa.Super.2003) (citations omitted).

¶ 8 The record in the instant case reveals that Watson never challenged his guilty plea in the trial court before raising it in his Rule 1925(b) statement. Accordingly, this issue is waived.

¶ 9 Next, Watson claims that his sentence was unreasonable, manifestly excessive, and an abuse of discretion since the court failed to put adequate reasons on the record for imposing the statutory maximum sentence, which fell beyond the aggravated range of the sentencing guidelines.

¶ 10 As we stated above, "[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). "[I]ssues challenging the discretionary aspects of sentencing must be raised in a post-sentence motion or by raising the claim during the sentencing proceedings. Absent such efforts, an objection to a discretionary aspect of a sentence is waived." Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super.2003) (citations omitted). This failure is not cured by submitting the challenge in a Rule 1925(b) statement. Kohan, 825 A.2d at 706 (citation omitted).

¶ 11 Here, Watson never challenged the discretionary aspects of his sentence in the trial court before asserting his challenge in his Rule 1925(b) statement. Consequently, this issue, too, is waived.

¶ 12 Finally, Watson argues that plea counsel was ineffective because plea counsel: (1) failed to correct the guilty plea colloquy; (2) failed to submit a motion to withdraw the plea; and (3) and failed to challenge the sentence. This claim requires a discussion of Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), and its progeny, in particular, Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (2003), and Commonwealth v. Belak, 573 Pa. 414, 825 A.2d 1252 (2003). In light of these recent pronouncements by our Supreme Court, and under the circumstances presented here, only where the record is sufficiently developed to allow the trial court to address the ineffectiveness issues raised and only where the trial court has considered and rejected them in its Rule 1925(a) Opinion, we hold that we may consider these ineffectiveness issues. In doing so, we reject them.

"Our [S]upreme [C]ourt in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), recently set forth a new general rule providing that parties `should wait to raise claims of ineffective assistance of trial counsel until collateral review.' Id. at 738." Commonwealth v. Rosendary, 818 A.2d 526, 527 (Pa.Super.2003). The Supreme Court dictated that this new rule is to be applied to all cases currently pending on direct appeal where a claim of ineffectiveness has been properly raised and preserved, as in this case. See Grant, 813 A.2d at 738-39

.

Commonwealth v. Millward, 830 A.2d 991, 994-95 (Pa.Super.2003). Underlying this rule is the Court's observation that "time is necessary for a petitioner to discover and fully develop claims related to trial counsel ineffectiveness." Grant, 813 A.2d at 737-738. As a result, "the record may not be sufficiently developed on direct appeal to permit adequate review of ineffectiveness claims[.]" Id. at 737. Because "appellate courts do not normally consider issues that were not raised and developed in the court below[,]" id., the Grant court reasoned that "[d]eferring review of trial counsel ineffectiveness claims until the collateral review stage of the proceedings offers a petitioner the best avenue to effect his Sixth Amendment right to counsel." Id. at 738. Since the new general rule in Grant was announced, we have regularly followed it. See e.g. Rosendary, 818 A.2d at 527, 529-30

; Commonwealth v. Robinson, 817 A.2d 1153, 1162-63 (Pa.Super.2003); Commonwealth v. Carmichael, 818 A.2d 508, 509-10 (Pa.Super.2003); and Commonwealth v. Ruiz, 819 A.2d 92, 95-96 (Pa.Super.2003).

¶ 13 Watson argues that Grant does not apply to the instant case since counsel's ineffectiveness for failing to correct the guilty plea colloquy was developed in the trial court. Here, Watson raised his ineffectiveness claims in the trial court in his statement of matters complained of on appeal filed pursuant to Pa.R.A.P.1925(b), and the trial court addressed these claims in an opinion pursuant to Pa.R.A.P.1925(a). We have previously explained that although a trial court must explain its reasoning when confronted with a claim raised in a 1925(b) statement, it may not enter a dispositional order in such a procedural posture. Kohan, 825 A.2d at 706 (citation omitted). Generally, as we stated above, "[a] party cannot rectify the failure to preserve an issue by proffering it in response to a Rule 1925(b) order." Id. at 706. We have applied this rule in refusing to address ineffective assistance of counsel claims raised for the first time in a Rule 1925(b) statement even though the trial court addressed the claims in its Rule 1925(a) opinion. Commonwealth v. Burkett, 830 A.2d 1034, 1037 n. 2 (Pa.Super.2003).² We must, however, reexamine our holding in Burkett in light of the Supreme Court's decision in Commonwealth v. Belak, 573 Pa. 414, 825 A.2d 1252 (2003).³ ¶ 14 On appeal to the Supreme Court, the appellant in Belak argued that his trial counsel was ineffective for failing to interview him prior to trial, for interfering with his right to testify, for failing to interview and call a particular witness who would have testified that another person had confessed to committing the...