Com. v. Zorger, D., Com. v. Zorger, D. No. 167 EDA 2017

On January 25, 2016, David J. Zorger, Jr. assaulted his mother and police officers; he later pled guilty on June 13, 2016 to multiple counts including aggravated assault, PIC, terroristic threats, resisting arrest, and criminal mischief.
On September 2, 2016, Zorger admitted violating probation from a 2014 conviction, waived a Gagnon II hearing, and was sentenced: 18–48 months for the probation violation and concurrent 2–5 year terms on the aggravated assault counts to run consecutively to the probation-violation sentence.
Zorger filed a timely counseled motion to modify/reconsider sentence and a pro se post-sentence motion; the trial court denied relief after a December 14, 2016 hearing where Zorger sought concurrent sentences based on treatment participation.
Zorger appealed, claiming his guilty plea was not knowing, intelligent, and voluntary because he was not advised that the new-case sentence could run consecutively to a probation/parole violation sentence.
The Commonwealth argued Zorger waived appellate review of plea voluntariness by failing to object during the plea colloquy or to move to withdraw the plea within ten days post-sentencing.
The Superior Court agreed with the Commonwealth, holding Zorger waived the challenge and affirming the judgment of sentence.

Issue	Appellant's Argument	Commonwealth's Argument	Held
Whether Zorger’s guilty plea was knowing, intelligent, and voluntary because he was not advised that his new-case sentence could run consecutively to a probation/parole violation	Zorger: plea involuntary because he was not informed sentences could be consecutive to a probation-violation sentence	Commonwealth: claim waived because Zorger failed to object during plea colloquy or file a timely motion to withdraw the plea	Waived — appellant failed to preserve the claim; no review of plea validity on direct appeal

Gagnon v. Scarpelli, 411 U.S. 778 (U.S. 1973) (probationer entitled to pre-revocation and final revocation hearings)
Commonwealth v. Lincoln, 72 A.3d 606 (Pa. Super. 2013) (guilty plea waives nonjurisdictional defects except plea validity and sentence legality)
Commonwealth v. Roberts, 352 A.2d 140 (Pa. Super. 1975) (trial court should address plea-withdrawal claims first; failure to raise in trial court waives appellate review)
Commonwealth v. Rush, 959 A.2d 945 (Pa. Super. 2008) (involuntariness of a guilty plea must be raised in trial court to be reviewed on direct appeal)
Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011) (no hybrid representation; pro se filings while represented are legally ineffective)