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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MIGUEL BONES
Appellant No. 1417 EDA 2015
Appeal from the Judgment of Sentence November 5, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004122-2011
BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED JANUARY 22, 2016
Appellant Miguel Bones appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas following his
guilty plea conviction for rape1 and unlawful contact with a minor.2 We
affirm.
The trial court set forth the relevant procedural history as follows:
Appellant was arrested February 25, 2011 and charged
with Rape - Forcible Compulsion,[] Involuntary Deviate
Sexual Intercourse (“IDSI”) - Forcible Compulsion,4
Unlawful Contact With a Minor - Sexual Offenses,[]
Unlawful Restraint - Serious-Bodily Injury,6 Statutory
Sexual Assault,7 False Imprisonment,8 Endangering the
Welfare of Children - Parent/Guardian Commits Offense,9
____________________________________________
1
18 Pa. C.S. § 3121(a)(1).
2
18 Pa. C.S. § 6318(a)(1).
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Corruption of Minors,10 Simple Assault,11 and Recklessly
Endangering Another Person (“REAP”).12
4
18 Pa.C.S. § 3123(a)(1).
6
18 Pa.C.S. § 2902(a)(1).
7
18 Pa.C.S.§3122.1.
8
18 Pa.C.S. § 2903(a).
9
18 Pa.C.S. § 4304(a)(1).
10
18 Pa.C.S. § 6401(a)(1).
11
18 Pa.C.S. § 2701.
12
18 Pa.C.S. § 2705.
On July 30, 2013, Appellant entered a negotiated guilty
plea to the charges of Rape – Forcible Compulsion and
Unlawful Contact With a Minor - Sexual Offenses. All other
charges were nolle prossed. At that time, Appellant was
sentenced on the charge of Rape [] to nine (9) to twenty–
one (21) years of state confinement; the sentence for
Unlawful Contact was deferred pending an assessment
pursuant to Megan’s Law. See 42 Pa.C.S. § 9799.24.
On August 7, 2013, Appellant filed a timely pro se [p]ost
[s]entence [m]otion to [w]ithdraw his [g]uilty [p]lea,
averring that: his guilty plea was coerced; he was “not
properly informed what was lawful and unlawful;” he was
unable to comprehend due to emotional instability and
trauma; that he rescinded all signatures waiving his right
to a trial; that he was “coerced . . . under fraud and
deception by all parties by deceiving petitioner to believe
the said court has subject matter jurisdiction;” and that
there was no subject matter jurisdiction because “accused
persons get charged/indicted not by laws, but by codified
versions of laws. WHICH ARE NOT LAWS AT ALL! . . .”;
averred that Appellant was not made aware that this court
was operating under “statutory jurisdiction, a jurisdiction
which rules are unknown . . .”; and further averred that he
was unaware of being considered a “STRAWMAN
/CORPORATION and only knows himself to be a Living
Being, Flesh and Blood, living breathing soul,” etc.
Essentially, Appellant raised arguments typical of the
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Sovereign Citizen Movement but did not explain why the
trial c]ourt did not have subject jurisdiction to sentence
him, other than his argument that the statutes were not
laws.13
13
See Southern Poverty Law Center, “Sovereign
Citizens Movement,” http://www.splcenter.org/get-
informed/intelligence-files/ideology/sovereign-
citizens-movement.
On August 27, 2013, counsel for Appellant filed a
[s]upplemental [p]ost [s]entence [m]otion, arguing that
Appellant’s plea was not knowing, intelligent or voluntary,
and that he had not been adequately informed of the
consequences of his guilty plea, specifically that he would
not be permitted to withdraw the plea under Pa.R.Crim.P.
591. Appellant averred that he was told by the [trial
c]ourt that if he were found guilty after a trial, he could
face seventy six (76) to a hundred fifty two (152) years
[and that this information] caused undue duress such that
under the circumstances his plea was coerced; and that he
was innocent of the charges against him.
On November 15, 2013, following a hearing on Appellant’s
[m]otion at which Appellant refused to state his name for
the record, [the trial c]ourt denied his [m]otion to
[w]ithdraw his [g]uilty [p]lea.
On December 12, 2014, [the trial c]ourt held a hearing to
determine whether Appellant was a sexually violent
predator.[3] Following the hearing, [the trial c]ourt
sentenced Appellant to ten (10) years of reporting
probation [on the unlawful contact with a minor conviction]
to run consecutive to his incarceration in accordance with
his plea negotiations.
On December 19, 2014, Appellant filed a pro se [p]ost
[s]entence [m]otion, arguing that [the trial court] had
erred in sentencing him to ten (10) years of probation to
run consecutive to his confinement and averred that at the
____________________________________________
3
The trial court found Appellant was not a sexually violent predator. N.T.,
12/12/2014, at 72.
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time of the guilty plea, Appellant’s counsel “made it clear
on the record . . . that the plea agreement was 9-21
years[’] incarceration for the charge of Rape and ten
years[’] probation to run concurrent for the charge of
Unlawful Contact.”
On February 17, 2015, Appellant filed an [a]mendment to
his [p]ost [s]entence [m]otion, again arguing that his
sentence was illegal and that [the trial c]ourt lacked
jurisdiction to impose it upon him.
On April 18, 2015, Appellant’s [m]otions were denied by
[o]peration of [l]aw.
Opinion, 7/24/2015, at 1-3. Appellant filed a timely notice of appeal. Both
Appellant and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.
Appellant raises the following issues on appeal:
1. Was not [A]ppellant’s guilty plea invalid where, during
the plea colloquy, [A]ppellant clearly indicated that he
could not fully read, write and understand English, and
therefore, the colloquy was not sufficiently adequate to
ensure that he understood and was aware of his rights and
the consequences of the plea?
2. Did not the trial court err by denying [A]ppellant’s post-
sentence motion attacking the validity of his guilty plea
and by terminating his hearing, solely because [A]ppellant
did not state his name for the record?
Appellant’s Brief at 3.
Appellant has waived his first issue, i.e., that his guilty plea was
involuntary because he could not fully read, write and understand the
English language.
“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
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withdraw the plea within ten days of sentencing.” Commonwealth v.
Lincoln, 72 A.3d 606, 609-10 (Pa.Super.2013) (citing Pa.R.Crim.P.
720(A)(1), (B)(1)(a)(i)). “Failure to employ either measure results in
waiver.” Id. at 610 (citing Commonwealth v. Tareila, 895 A.2d 1266,
1270 n. 3 (Pa.Super.2006)). Further:
[F]or any claim that was required to be preserved, [an
appellate court] cannot review a legal theory in support of
that claim unless that particular legal theory was
presented to the trial court. Thus, even if an appellant did
seek to withdraw pleas or to attack the discretionary
aspects of sentencing in the trial court, the appellant
cannot support those claims in this Court by advancing
legal arguments different than the ones that were made
when the claims were preserved.
Id. (quoting Commonwealth v. Rush, 959 A.2d 945, 949
(Pa.Super.2008)).
Following imposition of sentence for the rape conviction, Appellant filed
a pro se motion to withdraw his guilty plea and his counsel filed a motion in
support of the motion to withdraw the guilty plea. The motions did not claim
Appellant’s guilty plea was involuntary because he did not understand the
English language. Rather, the pro se motion, which was hand-written in
English, argued the plea was coerced, Appellant was not “properly informed
what was lawful and unlawful,” and Appellant was unable to comprehend the
guilty plea due to “emotional instability and trauma.” Motion to Withdraw
Guilty Plea, 8/7/2013, at ¶¶ 2-3. The motion also raised various subject
matter jurisdiction arguments. Id. at 5-16. The counsel’s motion in support
of motion to withdraw the guilty plea stated the plea was not knowing,
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intelligent or voluntary because Appellant had not been informed of the
consequences of his guilty plea, i.e., he was not informed that, because he
was immediately sentenced, he would not be permitted to withdraw the
plea. Motion in Support of Petitioner’s Post-Sentence Motion, 8/27/2013, at
¶5. It further maintained the timing and manner in which the trial court
informed Appellant he could face 76 to 152 years’ imprisonment coerced
Appellant into pleading guilty. Id. at ¶ 6. Neither motion argued, or even
mentioned, Appellant’s alleged inability to read, write, or understand the
English language. Therefore, the legal theory advanced in this Court differs
from the theory advanced in the trial court, and Appellant waived his first
claim. See Lincoln, 72 A.3d at 610.4
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4
Further, the 1925(b) statement did not challenge the voluntariness of the
waiver based on Appellant’s understanding of the English language. The
1925(a) statement raises the following issues:
a. The trial court erred by denying [A]ppellant’s motion for
withdrawal of his guilty plea without holding a full hearing,
despite the fact that [A]ppellant would not identify himself
for the record.
b. The trial court erred by denying [A]ppellant’s motion for
withdrawal of his guilty plea, where the plea colloquy was
not sufficiently adequate to ensure that appellant
understood and was aware of his rights and the
consequences of his plea and, therefore, the entry of his
plea was invalid.
c. The trial court erred and abused its discretion when it
imposed a sentence of ten years[’] probation for the
charge of unlawful contact of a minor to run consecutive to
[A]ppellant’s sentence of incarceration for rape, where the
(Footnote Continued Next Page)
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Further, even if Appellant had properly preserved the claim, it lacks
merit. At the colloquy, the trial court and Appellant had the following
exchange:
THE COURT: [] How old are you, sir?
[APPELLANT]: Twenty-eight years old.
THE COURT: How far did you go in school?
[APPELLANT]: Graduated high school.
THE COURT: Can you read, write, and understand
English?
[APPELLANT]: Yes, for the most part[,] yes.
THE COURT: [Do y]ou have any issues understanding
English, reading, or writing?
[APPELLANT]: Not really.
THE COURT: Have you ever been or are you currently
receiving treatment for any mental illness?
[APPELLANT]: Not currently receiving any treatment but
yes, I have.
THE COURT: What was your diagnosis, sir?
[APPELLANT]: Bipolar, post-traumatic stress disorder,
manic depressant, hyperactivity disorder.
_______________________
(Footnote Continued)
negotiation for the plea was for the probation to run
concurrent to the sentence of incarceration.
Supplemental Statement of Errors Complained of on Appeal, filed 6/1/2015,
at ¶ 5. This statement does not clarify that Appellant sought relief on an
alleged inability to understand English, particularly as no trial court motion
or evidence alleged such an inability.
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THE COURT: When were you diagnosed with those
ailments?
[APPELLANT]: Around 1998.
THE COURT: Were you prescribed any medications or any
course of treatment?
[APPELLANT]: Yes.
THE COURT: Are you still in treatment for those ailments?
[APPELLANT]: No.
THE COURT: Are you under any medication to treat those
ailments?
[APPELLANT]: No.
THE COURT: [Do y]ou require medication at all at this
point in time?
[APPELLANT]: No.
THE COURT: When was the last time you required any
medication for any of those?
[APPELLANT]: The last time I did take my medication was
probable a year ago.
THE COURT: Do you feel that you have the ability to
understand what’s happening here today?
[APPELLANT]: Yes.
THE COURT: Are you presently under the influence of any
drugs or alcohol or medication at all that would prevent
you from understanding what’s happening here today?
[APPELLANT]: No.
THE COURT: I’m going to refer you to this written guilty
plea colloquy form, did you go over this form with your
attorney?
[APPELLANT]: Yes.
THE COURT: Did you understand the form?
[APPELLANT]: Yes.
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THE COURT: I’m going to direct your attention to the
bottom of page three of four, is that your signature at the
bottom of that form, sir?
[APPELLANT]: Yes.
THE COURT: Did you sign it of your own free will?
[APPELLANT]: Yes.
N.T., 7/30/2013, at 3-5. The trial court also discussed the rights Appellant
was giving up by pleading guilty and confirmed that Appellant was not made
any promises in exchange for his guilty plea and was not threatened or
forced to plead guilty. Id. at 6-10.
Appellant bases his claim that he did not understand the English
language on the following: (1) he responded “yes, for the most part[,] yes,”
when asked whether he could read, write and understand English; (2) he
responded “not really,” when asked whether he had any issues
understanding English, and (3) the below exchange that occurred at the
hearing on his motion to withdraw his guilty plea:
COURT CRIER: Case number ten. In a loud voice for the
record state your full name, home address.
[APPELLANT]: I don’t understand. What do you want me
to do?
COURT CRIER: State your full name and home address.
[APPELLANT]: I don’t understand why I have to do that.
COURT CRIER: Sir, state your full name and home
address.
[APPELLANT]: There was no identity. I shouldn’t have to
be here.
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THE COURT: If you want your Motion heard, you have to
state your name on the record or your Motion will not be
heard today.
[APPELLANT]: I don’t understand why I have to identify
myself.
THE COURT: If you don’t identify yourself, your Motion
wont’ be heard. All right. You can take him back, Sheriff.
Motion is denied. He refuses to identify himself[.]
N.T., 11/15/2013, at 4-5.
The guilty plea colloquy, in its entirety, established Appellant
understood English. He accurately answered the questions, which were
asked in English, and responded in full, complete sentences, also in English.
Further, the exchange at the post-sentence motion hearing does not
establish Appellant did not understand English. Appellant understood the
request, i.e., state his name for the record, but did not understand why he
had to state his name. The claim he did not understand why he had to state
his name aligns with his arguments that the court lacked jurisdiction over
him. Appellant’s contention that his guilty plea was unknowing and
involuntary because he did not understand English lacks merit.
Appellant next maintains the trial court erred when it denied
Appellant’s post-sentence motion attacking his guilty plea when it
terminated the hearing on the motion because Appellant would not state his
name. Appellant’s Brief at 14-17.
Pursuant to the Pennsylvania Rules of Criminal Procedure, if a
defendant files a post-sentence motion, “[t]he judge shall also determine
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whether a hearing or argument on the motion is required, and if so, shall
schedule a date or dates certain for one or both.” Pa.R.Crim.P.
720(B)(2)(b).
The trial court denied the motion to withdraw Appellant’s guilty plea
following Appellant’s refusal to state his name for the record. N.T.,
11/15/2013, at 4-5. Regardless whether the trial court erred when it denied
the motion based on this refusal, without reference to the court’s review of
the motions to withdraw and without further attempts to ascertain
Appellant’s cooperation with the hearing proceedings, any error was
harmless. In its 1925(a) opinion, the trial court explained its denial of the
motion to withdraw the guilty plea as follows:
[T]o withdraw a guilty plea after sentencing, an Appellant
must demonstrate prejudice on the level of “manifest
injustice” before such a withdrawal is justified.
Commonwealth v. Pantalon, 957 A.2d 1267, 1271
(Pa.Super.2008) (citation omitted). This showing may “be
established if the plea was entered into voluntarily,
unknowingly, or unintelligently.” Commonwealth v.
Yeomans, [24 A.3d 1044, 1046] (Pa.Super.Ct. 2011).
This is a difficult standard to meet, as Pennsylvania’s guilty
plea procedures are designed to guarantee assurance that
guilty pleas “are voluntarily and understandingly
tendered.” Yeomans, 24 A.3d at 1046. The extensive
colloquy process requires courts to make a specific
determination as to the voluntariness and understanding of
such a plea. Id.
At a minimum, courts have established that the following
information should be elicited at a colloquy. Yeomans, 24
A.3d at 1047; Pa.R.Crim.P. 590. Does the defendant
understand the nature of the charges to which he is
pleading guilty; is there a factual basis for the plea; does
the defendant understand that he or she has the right to
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trial by jury; is the defendant aware of the permissible
range of sentences and fines for the offenses charged; is
the defendant aware that the judge is not bound by the
terms of any plea agreement tendered. Id. Whether the
plea was knowing and voluntary is a totality of the
circumstances determination, thus, even if there is a
defect in one aspect of the colloquy, a plea will not be
found invalid if the defendant had a “full understanding of
the nature and consequences of his plea and that he
knowingly and involuntarily decided to enter the plea.”
Commonwealth v. Fluharty, [632 A.2d 312, 314-315]
(Pa.Super.1993). Finally, the law presumes that an
Appellant who enters a guilty plea was aware of what he
was doing, and it is his burden to prove otherwise.
Yeomans, 24 A.3d at 1047. As noted above, [the trial
court] conducted an extensive colloquy of Appellant to
ensure that his guilty plea was knowing, intelligent, and
voluntary. Appellant stated that he had graduated high
school, [and] could read, write, and understand the English
language. N.T.[,] 7/30/13[,] at 3. Although Appellant had
been diagnosed with bipolar disorder, he stated that he did
not require medication, and was not under the influence of
any drugs, alcohol, or medication that would impair his
abilit[y] to understand what was occurring. N.T.[,]
7/30/13[,] at 4-5. Appellant had reviewed the guilty plea
colloquy form with his attorney and agreed to plead guilty,
understanding that he could be incarcerated for at least
sixty (60) years, and that he had an absolute right to a
jury trial. N.T.[,] 7/30/13[,] at 5-6. Appellant understood
that his appellate rights would be limited, and he could
only appeal on the grounds that [the trial court] did not
have jurisdiction to hear Appellant’s case, that the plea
was involuntary, or that Appellant’s attorney was
ineffective. N.T.[,] 7/30/13[,] at 7-8. Appellant stated
that, despite knowing all of the above, he wished to plead
guilty and was pleading guilty of his own free will. N.T.[,]
7/30/13[,] at 10.
Following this extensive colloquy, [the trial court] found
that Appellant’s decision to plead guilty was knowing,
intelligent, and voluntary, and accepted his plea. N.T.[,]
7/30/13[,] at 10-11. The colloquy was sufficient to inform
Appellant of his rights and the consequences of his plea,
and Appellant’s Motion indicated no further facts that could
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allow [the trial court] to conclude that his plea was not
voluntary; thus, Appellant is not entitled to relief on this
claim.
Opinion, 7/24/2015, at 8-9. This was not error.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/22/2016
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