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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ERIBERTO GONZALEZ, : No. 203 EDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, November 19, 2013
in the Court of Common Pleas of Lehigh County
Criminal Division at No. CP-39-CR-0005179-2012
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND STABILE, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 12, 2014
Eriberto Gonzalez appeals from the judgment of sentence of
November 19, 2013, following a plea of nolo contendere to one count of
possession with intent to deliver (“PWID”) (heroin). We affirm.
On September 9, 2012, at approximately 3:15 p.m., Officer David
Howells was on routine patrol when he observed a black Mercedes SUV.
(Notes of testimony, 11/19/13 at 11.) Officer Howells ran the license plate
number and discovered that the vehicle’s registration was suspended for
insurance cancellation. (Id.) Officer Howells executed a traffic stop and
approached the vehicle. (Id.) Officer Howells observed appellant in the
driver’s seat. (Id.) When he asked appellant for identification, appellant
produced a driver’s license with the name “Angel Cintron.” (Id. at 12.) It
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was clear to the officer that appellant was not the same man pictured on the
driver’s license. (Id.)
At that time, Officer Howells asked appellant to step out of the vehicle.
(Id.) Appellant consented to a search of his person, at which time
Officer Howells recovered a packet of synthetic marijuana in appellant’s
pocket. (Id.) During a subsequent inventory search of appellant’s vehicle,
Officer Howells found a black plastic bag filled with rice in the center console.
(Id.) Inside the bag were nine bundles of heroin containing a total of
69 stamp bags of heroin. (Id.) When Officer Howells placed appellant
under arrest, he asked whether he used any drugs such as cocaine or
heroin. (Id.) Appellant denied using any drugs except for synthetic
marijuana. (Id. at 13.)
On November 19, 2013, appellant entered a plea of nolo contendere
to count 1, PWID (heroin). In exchange for appellant’s plea, the
Commonwealth agreed to withdraw the remaining charges including two
counts of possession, possession of drug paraphernalia, and false
identification. In addition, the Commonwealth agreed to waive the 3-year
mandatory minimum sentence and cap appellant’s minimum sentence at the
bottom of the standard range of the sentencing guidelines, or 24 months.
(Id. at 3.) Appellant was also RRRI eligible. (Id.)1 There was no
1
Recidivism Risk Reduction Incentive (“RRRI”) program, 61 Pa.C.S.A. § 4501
et seq.
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agreement as to the maximum sentence appellant could receive. (Id. at 6-
7.)
The trial court accepted the plea and imposed a sentence of 24 months
to 7 years’ imprisonment. (Id. at 21.) Under RRRI, appellant would be
eligible for release on parole after 18 months. (Id. at 22-23.) On
December 2, 2013, appellant filed a post-sentence motion for modification of
sentence, requesting a sentence of 2 to 5 years’ imprisonment or, in the
alternative, to withdraw his plea.2 Appellant’s motion was denied on
December 18, 2013. A timely notice of appeal was filed on January 14,
2014. On January 15, 2014, appellant was ordered to file a concise
statement of errors complained of on appeal within 21 days pursuant to
Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A. Appellant filed his Rule 1925(b)
statement on February 14, 2014, and the trial court has filed a Rule 1925(a)
opinion.3
2
The 10th day following sentencing was Friday, November 29, 2013. As this
was the day after Thanksgiving, presumably the courthouse was closed. No one
suggests that appellant’s post-sentence motion was untimely and failed to toll
the appeal period. Therefore, we conclude that appellant’s post-sentence
motion filed the following Monday, December 2, 2013, was timely. See
1 Pa.C.S.A. § 1908 (excluding weekends and holidays from the computation of
time).
3
Appellant’s Rule 1925(b) statement was due on February 5, 2014. Therefore,
it was filed late. However, the trial court addressed the issues raised in its
Rule 1925(a) opinion and it is unnecessary to remand. See Commonwealth
v. Thompson, 39 A.3d 335, 340 (Pa.Super. 2012) (“When counsel has filed an
untimely Rule 1925(b) statement and the trial court has addressed those issues
we need not remand and may address the merits of the issues presented.”),
citing Commonwealth v. Burton, 973 A.2d 428, 433 (Pa.Super. 2009)
(en banc).
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Appellant has presented the following issues for this court’s review:
A. Did the lower court err by denying
[appellant]’s request to withdraw his nolo
plea, post-sentence, as [appellant]’s plea was
not entered knowingly or voluntarily or that
[appellant] was innocent of the charge?
B. Whether the length of the maximum sentence
imposed by the court is manifestly excessive
given the totality of the circumstances,
[appellant]’s rehabilitative needs, and the
disproporti[o]nate reliance upon the need to
protect the community?
Appellant’s brief at 7 (capitalization omitted) (emphasis added).
“Preliminarily, we note that in terms of its effect upon a case, a plea of
nolo contendere is treated the same as a guilty plea.” Commonwealth v.
Leidig, 850 A.2d 743, 745 (Pa.Super. 2004), citing Commonwealth v.
Miller, 748 A.2d 733, 735 (Pa.Super. 2000).
Our law is clear that, to be valid, a guilty plea
must be knowingly, voluntarily and intelligently
entered. Commonwealth v. Shekerko, 432
Pa.Super. 610, 639 A.2d 810, 813 (1994). There is
no absolute right to withdraw a guilty plea, and the
decision as to whether to allow a defendant to do so
is a matter within the sound discretion of the trial
court. Commonwealth v. Muhammad, 794 A.2d
378, 382 (Pa.Super.2002). To withdraw a plea after
sentencing, a defendant must make a showing of
prejudice amounting to “manifest injustice.” Id.,
794 A.2d at 383. “A plea rises to the level of
manifest injustice when it was entered into
involuntarily, unknowingly, or unintelligently.”
Commonwealth v. Ingold, 823 A.2d 917, 920
(Pa.Super.2003). A defendant’s disappointment in
the sentence imposed does not constitute “manifest
injustice.” Muhammad, 794 A.2d at 383.
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A court accepting a defendant’s guilty plea is
required to conduct an on-the-record inquiry during
the plea colloquy. Ingold, 823 A.2d at 920. The
colloquy must inquire into the following areas:
(1) Does the defendant understand the
nature of the charges to which he or she
is pleading guilty or nolo contendere?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he
or she has the right to trial by jury?
(4) Does the defendant understand that he
or she is presumed innocent until found
guilty?
(5) Is the defendant aware of the
permissible range of sentences and/or
fines for the offenses charged?
(6) Is the defendant aware that the judge is
not bound by the terms of any plea
agreement tendered unless the judge
accepts such agreement?
Id. at 920-21. Our law presumes that a defendant
who enters a guilty plea was aware of what he was
doing. Commonwealth v. Stork, 737 A.2d 789,
790 (Pa.Super.1999). He bears the burden of
proving otherwise. Id.
Commonwealth v. Pollard, 832 A.2d 517, 522-523 (Pa.Super. 2003).
Instantly, the trial court conducted a thorough, probing on-the-record
plea colloquy with appellant. (Notes of testimony, 11/19/13 at 6-13.)
Appellant also completed a written plea colloquy which was explained to him
by his attorney. (Id. at 7.) Appellant was clearly informed that under the
terms of the plea agreement, his minimum sentence could be no greater
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than 2 years but that there was no agreement as to the maximum sentence
he could receive. (Id. at 6-7.) Appellant indicated he understood that the
maximum sentence was 30 years’ incarceration. (Id. at 10.) Appellant
stated that no one had coerced or threatened him to enter the plea, and
other than the plea agreement, no promises had been made to entice a plea.
(Id. at 9.)
As the trial court states, it appears that appellant is simply
disappointed in his sentence. (Trial court opinion, 3/12/14 at 5.) This
conclusion is supported by appellant’s post-sentence motion, in which he
stated, “[Appellant] has indicated to his undersigned counsel that he is
dissatisfied with the above-referenced sentence and, if this Honorable Court
denies his Motion to Modify Sentence, has requested that the undersigned
counsel request the withdrawal of his plea of nolo contendere.”
(Post-sentence motion, 12/2/13 at 5 ¶22; docket #28.)
A showing of manifest injustice is required after
imposition of sentence since, at this stage of the
proceeding, permitting the liberal standard
enunciated in [the presentence setting] might
encourage the entrance of a plea as a sentence
testing device. We note that disappointment by a
defendant in the sentence actually imposed does not
represent manifest injustice.
Commonwealth v. Byrne, 833 A.2d 729, 737 (Pa.Super. 2003), quoting
Muhammad, 794 A.2d at 383. Appellant failed to demonstrate a manifest
injustice. To the contrary, the record shows that appellant entered his plea
knowingly, voluntarily, and intelligently. There is no merit here.
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Next, appellant presents a challenge to the discretionary aspects of his
sentence, claiming that his sentence is manifestly excessive and disregards
his rehabilitative needs. Appellant concedes the sentence complied with the
express terms of the plea agreement and was within the standard range of
the guidelines, but argues that the maximum sentence of 7 years was
unjustified.
A challenge to the discretionary aspects of
sentencing is not automatically reviewable as a
matter of right. Commonwealth v. Hunter, 768
A.2d 1136 (Pa.Super.2001)[,] appeal denied, 568
Pa. 695, 796 A.2d 979 (2001). When challenging
the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by
including in his brief a separate concise statement
demonstrating that there is a substantial question as
to the appropriateness of the sentence under the
Sentencing Code. Commonwealth v. Mouzon, 571
Pa. 419, 812 A.2d 617 (2002); Commonwealth v.
Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987);
42 Pa.C.S.A. § 9781(b); Pa.R.A.P. 2119(f). “The
requirement that an appellant separately set forth
the reasons relied upon for allowance of appeal
‘furthers the purpose evident in the Sentencing Code
as a whole of limiting any challenges to the trial
court’s evaluation of the multitude of factors
impinging on the sentencing decision to exceptional
cases.’” Commonwealth v. Williams, 386
Pa.Super. 322, 562 A.2d 1385, 1387 (1989)
(en banc) (emphasis in original).
Commonwealth v. McNear, 852 A.2d 401, 407-408 (Pa.Super. 2004).
To demonstrate that a substantial question exists, “a
party must articulate reasons why a particular
sentence raises doubts that the trial court did not
properly consider [the] general guidelines provided
by the legislature.” Commonwealth v. Mouzon,
571 Pa. 419, 812 A.2d 617, 622 (2002), quoting,
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Commonwealth v. Koehler, 558 Pa. 334, 737 A.2d
225, 244 (1999). In Mouzon, our Supreme Court
held that allegations of an excessive sentence raise a
substantial question where the defendant alleges
that the sentence “violates the requirements and
goals of the Code and of the application of the
guidelines . . . .” Id. at 627. A bald allegation of
excessiveness will not suffice. Id.
Commonwealth v. Fiascki, 886 A.2d 261, 263 (Pa.Super. 2005), appeal
denied, 897 A.2d 451 (Pa. 2006).
Instantly, appellant has complied with the requirements of
Rule 2119(f) by including such a statement in his brief. (Appellant’s brief at
10.) Therein, appellant contends that his sentence is “manifestly excessive,
disproportionate to the actions of [appellant] and his rehabilitative needs.”
(Id.) Initially, we note that appellant’s sentence fell within the standard
range of the sentencing guidelines. See Commonwealth v. Maneval, 688
A.2d 1198, 1199-1200 (Pa.Super. 1997) (“Generally, if the sentence
imposed falls within the sentencing guidelines, no substantial question
exists.”), citing Commonwealth v. Johnson, 666 A.2d 690, 692 (Pa.Super.
1995).
Appellant had a prior record score of 5, including prior drug offenses.
(Notes of testimony, 11/19/13 at 13-14.) At the time he committed this
offense, appellant was on parole. (Id. at 4-5.) PWID carries an offense
gravity score of 7. (Id. at 2-3.) Appellant faced a maximum term of
30 years and a mandatory minimum term of 3 years; however, in
accordance with the terms of the plea agreement, the Commonwealth
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waived the mandatory minimum and agreed to a minimum sentence of no
more than 24 months, which falls at the bottom end of the standard range of
the sentencing guidelines. (Id. at 2-3, 5-6.) In exchange for his plea, the
Commonwealth withdrew the remaining charges. Appellant waived his right
to a pre-sentence investigation and asked to proceed directly to sentencing.
(Id. at 13.) Appellant indicated he understood that there was no agreement
on the maximum sentence he could receive and the trial court’s 2-7 year
sentence complied with the terms of the plea bargain and was well within
the guidelines. Appellant falls far short of raising a substantial question for
our review.
Even if we were to review appellant’s sentence on the merits,
appellant would have to demonstrate that “the sentencing court sentenced
within the sentencing guidelines but the case involves circumstances where
the application of the guidelines would be clearly unreasonable.”
42 Pa.C.S.A. § 9781(c)(2). Appellant has a lengthy history of dealing drugs,
and previous attempts at rehabilitation were unsuccessful. (Trial court
opinion, 3/12/14 at 4.) It is clear that the trial court imposed a 7-year
maximum sentence to ensure that if appellant is paroled at the expiration of
his minimum sentence, which could be as soon as 18 months, he receives
the appropriate treatment and supervision. (Id.; notes of testimony,
11/19/13 at 22.) Appellant’s sentence was not clearly unreasonable.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2014
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