Commonwealth v. Cabrera

1

COMMONWEALTH OF PENNSYLVANIA v. JULIO CESAR CABRERA Appellant

No. 901 MDA 2022

No. J-S02025-23

Superior Court of Pennsylvania

May 9, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal FROM the Judgment of Sentence Entered May 18, 2022 In the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-CR-0000569-2020

BEFORE: PANELLA, P.J., OLSON, J., and DUBOW, J.

MEMORANDUM

OLSON J.

Appellant Julio Cesar Cabrera, appeals from the May 18, 2022 judgment of sentence entered in the Court of Common Pleas of Lebanon County that imposed a sentence of 15 to 36 months' incarceration after Appellant pleaded guilty to aggravated assault - bodily injury with a deadly weapon.^[1] We affirm Appellant's conviction and the corresponding penalty of total confinement imposed on May 18, 2022; however, we vacate the order entered by the trial court on August 8, 2022, and modify Appellant's judgment of sentence in accordance with this memorandum.

The record demonstrates that Appellant was charged with the aforementioned criminal offense, as well as aggravated assault - bodily injury, pursuant to 18 Pa.C.S.A. § 2702(a)(1), on February 26, 2020. These charges stemmed from an incident that occurred on February 25, 2020, whereby Appellant stabbed the victim in the left arm with a knife, causing a large laceration. Criminal Complaint, 2/26/20. On June 26, 2020, a criminal information was filed against Appellant charging him with the two aforementioned offenses. On July 13, 2020, Shannon Pascal, Esquire ("Attorney Pascal") entered her appearance as counsel for Appellant on behalf of the Lebanon County Public Defender's Office.

On June 17, 2021, Appellant entered into a negotiated plea agreement in which he agreed to plead guilty to aggravated assault - bodily injury with a deadly weapon and accepted a minimum sentence of 15 months' incarceration. Appellant also agreed to attend anger management counseling and to have no contact with the victim. In exchange, the Commonwealth agreed to nolle pros the aggravated assault - bodily injury charge at the time of sentencing. Appellant's sentencing hearing was scheduled for August 18, 2021.

On August 16, 2021, Appellant filed a petition to withdraw his guilty plea, claiming he sought to contest the charges at trial because, he believed, the victim changed his expected testimony. Petition to Withdraw Guilty Plea, 8/16/21, at ¶4. On November 12, 2021, the trial court denied Appellant's petition to withdraw his guilty plea "for all the reasons set forth on the record" and scheduled Appellant's sentencing hearing for December 8, 2021. Trial Court Order, 11/12/21. On December 8, 2021, the trial court re-scheduled Appellant's sentencing hearing for February 2, 2021, after learning that Appellant contracted COVID-19.

On February 2, 2022, the trial court issued a bench warrant for Appellant's apprehension after he failed to appear for sentencing. Appellant was apprehended on May 3, 2022, and the next day, the trial court vacated the warrant, scheduled Appellant's sentencing hearing for May 18, 2022, and set bail at $150,000.00 cash. Appellant remained incarcerated until the time of sentencing.

On May 18, 2022, the trial court sentenced Appellant to 15 to 36 months' incarceration for his aggravated assault - bodily injury with a deadly weapon conviction. This sentence was set to run concurrently with all other counts and sentences, and Appellant was ordered to complete anger management counseling, to have no contact with the victim, and to pay the costs of prosecution, as well as a $10.00 fine. The aggravated assault - bodily injury charge was nolle prossed. Sentencing Order, 5/18/22.

On June 21, 2022, Appellant filed pro se a notice of appeal. Upon receipt of Appellant's pro se notice of appeal, the trial court did not order Appellant to file a concise statement of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), and the trial court did not file a Rule 1925(a) opinion. See Pa.R.A.P. 1925.

That same day, Appellant filed pro se a request for a transcript of the May 18, 2022 sentencing hearing, as well as a motion to appoint conflict counsel.^[2] In his motion to appoint conflict counsel, Appellant stated that "a conflict has arisen between [Appellant] and counsel" and he cited ineffective assistance of counsel as grounds for his direct appeal. Pro Se Motion to Appoint Alternate Conflict Counsel, 6/21/22, at ¶¶4-5. On June 22, 2022, the Lebanon County Public Defender's Office filed a motion to withdraw the appearance of Attorney Pascal as counsel for Appellant, stating that "[t]hirty or more days have elapsed since the last event in [this matter, t]here are currently no pending appeals, hearings scheduled, or other issues in [this matter, t]here is no further action to be taken in this matter[,] and [this matter] is believed to be concluded." Motion to Withdraw/Vacate Appearance, 6/22/22. On July 26, 2022, after Appellant filed his pro se notice of appeal, Appellant filed pro se an application seeking credit for time served, requesting that the trial court credit time served of 15 days (May 3, 2022 to May 18, 2022) toward his aforementioned sentence. The trial court scheduled a hearing on Appellant's pro se motion to appoint conflict counsel, his pro se application for credit of time served, and the public defender's office's motion to withdraw representation for August 8, 2022.

At the conclusion of a hearing on August 8, 2022, the trial court directed Attorney Pascal to continue as counsel for Appellant on appeal, thereby effectively denying both Appellant's pro se motion to appoint conflict counsel and the public defender's office's motion to withdraw appearance. Trial Court Order, 8/8/22. The trial court also directed that Appellant be credited 15 days for time served towards the sentence imposed on May 18, 2022. Id.

Appellant raises the following issue for our review: "Did the [trial court] err by applying the improper standard when [it] denied [Appellant's] motion to withdraw his plea[?]" Appellant's Brief at 4.

Preliminarily, we must determine whether Appellant filed a timely appeal, as the timeliness of an appeal implicates this Court's jurisdiction.^[3]Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011) (stating that, it is well-settled that jurisdiction is vested in this Court upon the filing of a timely notice of appeal, and the timeliness of an appeal may be considered sua sponte); see also Pa.R.A.P. 903(a) (stating that, in general, a notice of appeal must be filed within 30 days after the entry of the order from which the appeal is taken); Pa.R.Crim.P. 720(A)(3) (stating that, in general, "[i]f the defendant does not file a timely post-sentence motion, the defendant's notice of appeal shall be filed within 30 days of imposition of sentence").

Here, Appellant's pro se notice of appeal was time-stamped as having been filed by the trial court on June 21, 2022, 34 days after the imposition of sentence. In an October 3, 2022 per curiam order, this Court issued a rule to show cause why Appellant's appeal should not be quashed as untimely filed. On October 13, 2022, counsel for Appellant filed a response with this Court, averring that Appellant's pro se notice of appeal was deposited with the Lebanon County Correctional Facility authorities on June 17, 2022, and was sent to the clerk of courts' office for filing via interoffice mail. Response to Order to Show Cause, 10/13/22, at ¶7. Counsel explained that "inmates at the Lebanon County Correctional Facility use interoffice mail to correspond with the clerk of courts[' office], the public defender's office, the district attorney['s office,] and the judges without the need to pay for postage." Id. at ¶5 (extraneous capitalization omitted). Counsel further stated that "letters sent via interoffice mail are not post-marked, and inmates receive no receipt indicating the date [the correspondence] was handed to a correctional officer." Id. at ¶7(d) (extraneous capitalization omitted).

A review of Appellant's pro se notice of appeal reveals that it was dated June 17, 2022, and Appellant lists his address as the Lebanon County Correctional Facility. The record further demonstrates that county inmate use of interoffice mail for judicial correspondence is common practice in the Court of Common Pleas of Lebanon County. See, e.g., Trial Court Order, 8/18/21 (noting that service of the trial court order was made on the district attorney's office, Appellant's counsel, Appellant, and the trial court administration office via interoffice mail). While the issuance of a written receipt would facilitate the present analysis, we are satisfied that Appellant's notice of appeal was timely filed on June 17, 2022, pursuant to the well-established principal, commonly referred to as the "prisoner mailbox rule."^[4] Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (explaining that, pursuant to the prisoner mailbox rule, a document is deemed filed on the date an inmate deposits the mailing with prison authorities or places it in the prison mailbox).

Turning to the issue raised on appeal, Appellant challenges the trial court's order denying his motion seeking to withdraw his guilty plea, which was filed on August 16, 2021, before Appellant's sentence was imposed. Appellant's Brief at 10-15.

"It is well-settled that the decision whether to permit a defendant to withdraw a guilty plea is within the sound discretion of the trial court" and, as such, this Court reviews a trial court order denying a motion to withdraw a guilty plea for an abuse of discretion. Commonwealth v. Hart, 174 A.3d 660, 664 (Pa. Super. 2017), relying on Commonwealth v. Broaden, 980 A.2d...