Commonwealth v. Ramirez

279 A.3d 1285 (Table)

COMMONWEALTH of Pennsylvania, Appellee

v.Mitchell RAMIREZ, Appellant

No. 1171 EDA 2020

Superior Court of Pennsylvania.

Filed May 25, 2022

MEMORANDUM BY STABILE, J.:

Appellant, Mitchell Ramirez, appeals from his judgment of sentence of 156 days (time served) to twelve months’ imprisonment, followed by one year's probation, for violating his probation in this retail theft case. Before and during his probation revocation hearing, Appellant stipulated to committing a violation of probation. He argues in this appeal that his stipulation was not knowing, voluntary or intelligent, because the Commonwealth purposefully failed to inform him that it was filing new charges against him that day which directly related to the violation hearing. We affirm.

On May 23, 2019, Appellant entered a negotiated guilty plea in this case to retail theft and was sentenced to two years’ probation. On September 17, 2019, Philadelphia police arrested Appellant for burglary and related charges for two incidents in which he broke into a female victim's residence in violation of a Protection From Abuse order and caused property damage to the victim's residence. Appellant also damaged the victim's car.

As a result of his arrest, on September 23, 2019, Montgomery County Department of Adult Probation provided written notice to Appellant of probation violations ("violation notice"). A revocation hearing was scheduled for February 21, 2020.

On February 21, 2020, at the beginning of the hearing, the parties placed a joint recommendation on the record that Appellant would stipulate to all violations, waive his Gagnon I¹ hearing and proceed immediately to a Gagnon II hearing. N.T., 2/21/20, at 3. The parties jointly recommended that the court sentence Appellant to time served to one year's imprisonment followed by one year's probation. Id. at 3-4. Appellant testified under oath that (1) he could read, write, and understand English; (2) he was not under the influence of drugs or medications; (3) he was clear minded; (4) he knew he had a right to a hearing where the Commonwealth would have to prove that he violated his probation by a preponderance of the evidence; (4) no one forced or threatened him to get him to stipulate, and (5) he was not promised anything beyond the terms of the agreement. Id. at 4-7. Appellant stated that he did not have any questions for the court or anything he wanted to tell the court. Id. at 9.

The court admitted into evidence a probation stipulation colloquy form, signed by Appellant, in which he acknowledged that no one threatened or forced him to stipulate. Id. at 7-8; Exhibit D-1. The court also admitted the violation notice, which Appellant signed. Id. at 8-9; Exhibit D-2.² Appellant testified that he signed each page of the notice. Id. at 9.

The court determined that Appellant knowingly, intelligently and voluntarily stipulated to violating his probation. Id. at 10. The court thereupon imposed sentence. Appellant contends, in his appellate brief, that later in the day after his revocation hearing, he was arrested on a new criminal complaint alleging obstruction of justice based on conduct that occurred in jail as he was awaiting his revocation hearing.

On April 29, 2020, Appellant filed a timely³ notice of appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925. Appellant's Pa.R.A.P. 1925 statement provides, in its entirety:

Appellant's stipulation was not entered knowingly, voluntarily or intelligently. Appellant was incarcerated for more than five months at the time of his stipulation, where the Montgomery County Office of Adult Probation and Parole recommended a period of incarceration at a state correctional institute for his first alleged violation of supervision. Appellant was scheduled for a contested Gagnon II hearing but was made an offer on the day of the hearing, February 21, 2020, to a time served sentence in exchange for a stipulation. The decision to stipulate was a pressurized decision, and Appellant, believing this would conclude his legal matters, stipulated to the violations he had moments before been prepared to contest. On or about that same day, Appellant was arrested on new charges stemming from actions that allegedly occurred during his period of incarceration while awaiting his Gagnon hearing in Montgomery County Correctional Facility and were directly related to that hearing. The Commonwealth specifically waited until after Appellant had stipulated to file these charges and have Appellant arrested. Without being fully aware of his circumstances, Appellant's stipulation cannot be considered to have been made knowingly, intelligently or voluntarily.

Id. On July 30, 2020, the court filed a Pa.R.A.P. 1925 opinion reasoning that Appellant's stipulation was knowing, voluntary and intelligent.

Appellant raises a single issue in his appellate brief, "Whether Appellant knowingly, intelligently, and voluntarily entered a stipulation at his revocation hearing when the Commonwealth intentionally withheld vital information that would have impacted his decision on whether to proceed." Appellant's Brief at 4.

This Court can review the validity of revocation proceedings in an appeal from an order revoking probation. Commonwealth v. Wright , 116 A.3d 133, 136 (Pa. Super. 2015) ; Commonwealth v. Cartrette , 83 A.3d 1030, 1034 n.2 (Pa. Super. 2013) (collecting cases). We will apply the same standard used to assess the validity of guilty pleas, namely whether a plea is "knowing, voluntary and intelligent", in review of Appellant's stipulation which Appellant equates to the entry of a guilty plea. See Commonwealth v. Davis , 191 A.2d 883, 889 (Pa. Super. 2018) (trial court's extensive guilty plea colloquy demonstrated that Appellant entered voluntary, knowing, and intelligent plea). Commonwealth v. Kelly, 136 A.3d 1007 (Pa. Super. 2016) (in parole revocation hearing guilty plea must be knowingly, voluntarily and intelligently given).⁴

Appellant argues in his appellate brief that the Commonwealth violated his due process rights by obtaining his stipulation to the allegations in the violation notice by intentionally concealing its intention to arrest Appellant on the new charges. Appellant's Brief at 12-22. Appellant further contends that his stipulation at the revocation hearing was equivalent to a guilty plea, so his stipulation was invalid because it was not knowing, voluntary and intelligent. Id. at 22-26. Finally, Appellant argues that the Commonwealth's failure to disclose its intent to charge new offenses violated the "quasi-contract" between Appellant and the prosecution. Id. at 26-29. The Commonwealth contends that Appellant waived these arguments by failing to raise them in his Pa.R.A.P. 1925 statement. We agree in part.

Our Supreme Court held in Commonwealth v. Hill , 16 A.3d 484 (Pa. 2011) :

Our jurisprudence is clear and well-settled, and firmly establishes that: Rule 1925(b) sets out a simple bright-line rule, which obligates an appellant to file and serve a Rule 1925(b) statement, when so ordered; any issues not raised in a Rule 1925(b) statement will be deemed waived; the courts lack the authority to countenance deviations from the Rule's terms; the Rule's provisions are not subject to ad hoc exceptions or selective enforcement; appellants and their counsel are responsible for complying with the Rule's requirements; Rule 1925 violations may be raised by the appellate court sua sponte , and the Rule applies notwithstanding an appellee's request not to enforce it; and, if Rule 1925 is not clear as to what is required of an appellant, on-the-record actions taken by the appellant aimed at compliance may satisfy the Rule. We yet again repeat the principle first stated in [ Commonwealth v. Lord , 719 A.2d 306 (Pa. 1998),] that must be applied here: "[I]n order to preserve their claims for appellate review, [a]ppellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925. Any issues not raised in a Pa.R.A.P. 1925(b) statement will be deemed waived." 719 A.2d at 309.

Id. at 494 (footnote omitted).

Applying these principles, we conclude that Appellant has waived his due process, guilty plea and quasi-contract arguments by failing to raise them in his Pa.R.A.P. 1925 statement. Id. On the other hand, he preserved the argument that he did not knowingly, voluntarily or intelligently enter the stipulation by raising this issue in his Pa.R.A.P. 1925 statement. This is the sole issue that we will review on the merits.

Next, the Commonwealth requests that we disregard any documents that are appended as exhibits to Appellant's brief but are not in the certified record. These documents include: (1) the criminal complaint filed after Appellant's revocation hearing that accused him of committing several crimes while he was in jail awaiting his revocation hearing (obstructing justice and illegally procuring his girlfriend to intercept an electronic communication); (2) a "Supplemental Police Report," apparently completed on the day of the probation violation hearing, which stated that on February 20, 2020, an assistant district attorney reviewed the criminal complaint and approved its filing, and agreed with the arresting officer that "the complaint would be filed with District Court 38-1-16 on Friday, February 21, 2020 just prior to the Gagnon hearing versus [Appellant]"; (3) the docket entries from the new criminal case against Appellant; and (4) a probation violation notice arising from the new charges. We agree with the Commonwealth that we cannot take these documents into consideration during our review of this appeal.

"It is black letter law in this jurisdiction that an appellate court cannot consider anything which is not part of the record in the case." Commonwealth v. Martz , 926 A.2d 514, 524-25 (Pa. Super. 2007). Ordinarily, materials that have only been included in briefs but are not part of the record cannot...