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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ROBERT A. KIELY,
Appellant No. 1717 EDA 2018
Appeal from the Judgment of Sentence Entered May 11, 2018
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0003335-2017
BEFORE: BENDER, P.J.E., OTT, J., and FORD ELLIOT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 20, 2019
Appellant, Robert A. Kiely, appeals from the judgment of sentence of 72
hours’ to 6 months’ imprisonment, imposed after he pled guilty to one count
of driving under the influence (DUI), 75 Pa.C.S. § 3802(d)(1)(ii). We affirm.
The facts of Appellant’s underlying conviction are not pertinent to his
appeal. We only note that on May 11, 2018, Appellant pled guilty to the
above-stated offense and was sentenced as stated supra. He did not file a
post-sentence motion. Instead, Appellant filed a timely notice of appeal, and
he also timely complied with the trial court’s order to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. The trial court filed its
opinion on June 28, 2018.
Herein, Appellant states two issues for our review:
1. Did the trial court err as a matter of law by accepting a
negotiated guilty plea[,] which was not voluntary?
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2. Was trial counsel ineffective in failing to state on the record and
failing to explain to his client in a guilty plea that he would lose
certain fundamental rights by pleading guilty, including the
right to carry a firearm, the right to vote and certain custody
rights now and in the future[?]
Appellant’s Brief at 5.
Appellant first contends that his guilty plea was not knowing, intelligent,
and voluntary because the trial court failed to inform him, during the plea
colloquy, that his conviction would result in “the loss of certain fundamental
rights[,] including the prohibition of purchasing or possessing [] a firearm.”
Id. at 8. Appellant also points out that the written plea colloquy did not
“mention[] anything about the loss of firearms rights[,]” and neither the
written, nor oral, colloquy discussed the implications his plea would have on
his “voting rights, child custody issues, or driving suspension.” Id.
Consequently, Appellant argues that his plea was not knowingly entered and,
thus, it is invalid.
Appellant has waived this claim for our review. Appellant did not file a
post-sentence motion seeking to withdraw his plea, nor did he orally contest
the validity of his plea before the trial court. Therefore, he has waived any
challenge to his plea on appeal. See Pa.R.Crim.P. 720(B)(1)(a)(i);
Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013) (“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 withdraw
the plea within ten days of sentencing. Failure to employ either measure
results in waiver.”).
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Alternatively, we would also deem Appellant’s first issue waived based
on his failure to develop a meaningful argument, or provide citations to any
legal authority, in support of this claim. See Appellant’s Brief at 8 (setting
forth his first issue with only one paragraph of argument, and no citations to
the record or any legal authority); Commonwealth v. Hardy, 918 A.2d 766,
771 (Pa. Super. 2007) (“When briefing the various issues that have been
preserved, it is an appellant’s duty to present arguments that are sufficiently
developed for our review. The brief must support the claims with pertinent
discussion, with references to the record and with citations to legal authorities.
… [W]hen defects in a brief impede our ability to conduct meaningful appellate
review, we may dismiss the appeal entirely or find certain issues to be
waived.”).
Notwithstanding Appellant’s waiver of his first issue, we would deem it
meritless. Our Supreme Court has
held that a defendant’s lack of knowledge of the collateral
consequences of pleading guilty does not undermine the validity
of his guilty plea. Commonwealth v. Frometa, … 555 A.2d 92
([Pa.] 1989). See also United States v. Romero–Vilca, 850
F.2d 177 (3rd Cir. 1988) (deportation a collateral consequence of
pleading guilty). We have also recognized that the collateral
consequences of pleading guilty are “numerous”. Frometa, …
555 A.2d at 93. A sampling of collateral consequences for
pleading guilty includes: loss of the right to vote, U.S. Const.
amend. XIV, § 2; to enlist in the armed services, 10 U.S.C.A. §
504, to own a firearm, 18 Pa.C.S.[] § 6105, or fishing license, 30
Pa.C.S.[] § 928; to inherit property, 20 Pa.C.S.[] §§ 8802–11, and
to practice a particular profession, e.g., 63 Pa.C.S.[] § 479.11(a)
(funeral director); 63 Pa.C.S.[] § 34.19(a)(8) (architect). See
Frometa, … 555 A.2d at 93 n. 1.
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Commonwealth v. Duffey, 639 A.2d 1174, 1176 (Pa. 1994). The Duffey
Court further added “that [the] loss of driving privileges is a civil collateral
consequence” and, therefore, “there is no requirement that [a defendant]
know of this consequence at the time of his guilty plea.” Id. Accordingly, we
would deem meritless Appellant’s contention that his plea is invalid because
he was unaware of certain collateral consequences of entering that plea, even
had he preserved this claim for our review.
In Appellant’s second issue, he avers that his plea counsel acted
ineffectively by not informing him of the above-discussed collateral
consequences of entering his guilty plea. In Commonwealth v. Holmes, 79
A.3d 562 (Pa. 2013), our Supreme Court reaffirmed its prior holding in
Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), that, absent certain
circumstances, claims of ineffective assistance of counsel should be deferred
until collateral review under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-9546. Holmes, 79 A.3d at 576. The specific circumstances under
which ineffectiveness claims may be addressed on direct appeal are not
present in the instant case. See id. at 577-78 (holding that the trial court
may address claim(s) of ineffectiveness where they are “both meritorious and
apparent from the record so that immediate consideration and relief is
warranted,” or where the appellant’s request for review of “prolix”
ineffectiveness claims is “accompanied by a knowing, voluntary, and express
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waiver of PCRA review”). Thus, we decline to review the merits of Appellant’s
second issue.1
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/20/19
____________________________________________
1 We note, however, that in support of his ineffectiveness claim, Appellant
simply reiterates his argument that, because he was uninformed of the
collateral consequences of his plea, it is invalid. For the reasons stated supra,
Appellant’s plea is not invalid on this basis; therefore, he would not be entitled
to relief on his ineffectiveness claim on that basis alone. See
Commonwealth v. Watson, 835 A.2d 786, 795 (Pa. Super. 2003) (“Claims
of ineffectiveness of counsel that are raised in the context of a guilty plea may
provide a basis for relief only if counsel’s ineffectiveness caused an involuntary
or unknowing plea.”) (citation omitted).
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