Com. v. Cleveland, A.

J-S56022-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

ANDREW CLEVELAND

Appellant No. 46 MDA 2015

Appeal from the Judgment of Sentence June 19, 2012
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0002853-2011
CP-35-CR-0002855-2011

BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.: FILED NOVEMBER 04, 2015

Appellant Andrew Cleveland appeals from the judgment of sentence

entered in the Lackawanna County Court of Common Pleas following his

guilty plea to two counts of robbery, threat of immediate serious bodily

injury.1 We affirm.

In November of 2011, Appellant robbed two convenience stores by

threatening the respective cashiers with a knife and demanding all of the

money in the cash registers. On March 26, 2012, Appellant pled guilty to

the previously mentioned crimes. In exchange for his guilty plea, the

Commonwealth did not charge Appellant with additional convenience store
____________________________________________

*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 3701 (a)(1)(ii).
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robberies, it agreed to seek concurrent sentences for the two robbery

convictions, and Appellant’s remaining eight charges against him relating to

the two convenience store robberies were nolle prossed.

On June 19, 2012, the court sentenced Appellant to ninety (90) to one

hundred eighty (180) months’ incarceration, followed by five (5) years’

special probation for his first robbery conviction and ten (10) years’ special

probation for his second robbery conviction. The court imposed the

sentences consecutively.

On December 3, 2012, Appellant filed a petition for relief pursuant to

the Post Conviction Relief Act (“PCRA”).2 On June 17, 2014, the trial court

granted Appellant’s petition and reinstated his post-sentence rights nunc pro

tunc. On June 26, 2014, Appellant timely filed a post-sentence motion,

which the court denied by operation of law on December 8, 2014. On

December 30, 2014, Appellant timely filed a notice of appeal. On January 7,

2015, the court ordered Appellant to file a statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b), and he timely complied on January

15, 2015.

Appellant raises the following issues for our review:

1. DID THE TRIAL COURT ERR AND/OR ABUSE ITS
DISCRETION WHEN IT REFUSED TO AMEND THE
SENTENCE OF [APPELLANT] TO A CONCURRENT TERM,
RATHER THAN CONSECUTIVE, WHERE THE PLEA
____________________________________________

2
42 Pa.C.S. §§ 9541-9546.

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AGREEMENT WITH THE COMMONWEALTH CALLED FOR
SUCH A SENTENCE?

2. DID THE TRIAL COURT ABUSE ITS DISCRETION BY
IMPROPERLY CONSIDERING FACTORS, SUCH AS
[APPELLANT’S] PRIOR RECORD AND POSSESSION OF A
KNIFE DURING THE COMMISSION OF A CRIME, WHERE
SUCH FACTORS WERE ALREADY TAKEN INTO ACCOUNT BY
THE GRADING OF THE OFFENSE ITSELF, THE SENTENCING
CODE AND GUIDELINES AND ITS ENHANCEMENTS AND,
AS A RESULT, IMPOSED A MANIFESTLY EXCESSIVE
SENTENCE?

3. DID THE TRIAL COURT ERR AND/OR ABUSE ITS
DISCRETION IN FAILING TO PLACE SUFFICIENT REASONS
UPON THE RECORD TO SUBSTANTIATE AND JUSTIFY A
SENTENCE OF TOTAL CONFINEMENT AT THE HIGHEST
END OF THE AGGRAVATED RANGE AND AN ADDITIONAL
TERM OF 15 YEAR TERM OF SPECIAL PROBATION?

Appellant’s Brief at 4.

Generally, a plea of guilty constitutes a waiver of all defects and

defenses excepting the voluntariness of the plea, the jurisdiction of the court

and the legality of the sentence. Commonwealth v. Stewart, 867 A.2d

589, 591 (Pa.Super.2005). This Court, however, “has also ruled that an

appellant may challenge the discretionary aspects of sentence [after

pleading guilty], so long as there is no plea agreement as to the terms of the

sentence.” Id. (citing Commonwealth v. Dalberto, 648 A.2d 16, 21

(Pa.Super.1994), appeal denied, 867 A.2d 589, 591 (Pa.2005)).

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In his first issue, Appellant purports to challenge the legality of his

sentence.3 He argues that, because his plea agreement with the

Commonwealth called for his sentences to run concurrently, the court

violated the terms of his agreement by imposing his sentences

consecutively, resulting in an illegal sentence.

First, we must determine whether Appellant’s claim challenges the

legality of his sentence.

[O]ur case law draws a careful distinction between truly
“illegal” sentences, and sentences which may have been
the product of some type of legal error…The term “illegal
sentence” is a term of art that our Courts apply narrowly,
to a relatively small class of cases.
Commonwealth v. Jacobs, 900 A.2d 368, 373 (Pa.Super.2006).

This class of cases includes: (1) claims that the sentence
fell “outside of the legal parameters prescribed by the
applicable statute”; (2) claims involving merger/double
jeopardy; and (3) claims implicating the rule in Apprendi
v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2000). These claims implicate the
fundamental legal authority of the court to impose the
sentence that it did.

Commonwealth v. Robinson, 931 A.2d 15, 21 (Pa.Super.2007).

Following the acceptance of a negotiated plea, the trial
court is not required to sentence a defendant in
____________________________________________

3
“We do note that Commonwealth v. Anderson, 643 A.2d 109, 111-112
([Pa.Super.]1994), and its progeny stand for the proposition that where the
trial court fails to comply with the terms of a plea agreement, that sentence
is illegal.” Commonwealth v. Berry, 877 A.2d 479, 483-84
(Pa.Super.2005).

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accordance with the plea agreement. Such a sentence is
legal, so long as it does not exceed the statutory
maximum. However, a criminal defendant who is
sentenced to more than was agreed upon in a negotiated
plea may withdraw his guilty plea upon being deprived of
the benefit of his bargain.

Commonwealth v. Tann, 79 A.3d 1130, 1133 (Pa.Super.2013),

reargument denied (Dec. 19, 2013), appeal denied, 94 A.3d 1009 (Pa.2014).

In Commonwealth v. Berry,4 this Court noted that

“Commonwealth v. Anderson,[5] and its progeny stand for the proposition

that where the trial court fails to comply with the terms of a plea agreement,

that sentence is illegal.” The Berry Court then held that an appellant’s claim

that the trial court violated his plea agreement by imposing consecutive

sentences did not implicate the legality of his sentence because it was not

based on a statute or claim of double jeopardy. Commonwealth v.

Raphael, 879 A.2d 1264, 1265 (Pa.Super.2005). In Raphael, this Court

noted the above principals and nonetheless proceeded to address the

appellant’s sentencing claim on the merits.

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4
877 A.2d 479, 483-84 (Pa.Super.2005).
5
643 A.2d 109, 111-112 ([Pa.Super.]1994). Anderson was abrogated by
Commonwealth v. Wallace, 870 A.2d 838, 844 (Pa.2005) (“Anderson's
holding that “any sentence imposed after probation revocation must not
exceed the maximum sentence originally imposed” is legally unsupportable
and is inconsistent with both the clear and unambiguous language of the
Sentencing Code and this Court’s precedent.”).

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Here, because Appellant’s sentencing claim is based on the court’s

consecutive imposition of his sentences, and not based on a statute or claim

of double jeopardy, he does not challenge the legality of his sentence. See

Raphael, supra. Nonetheless, we will discuss Appellant’s claim on the

merits.

Our standard of review of questions involving the legality of a sentence

is well settled:

“A challenge to the legality of a sentence ... may be
entertained as long as the reviewing court has
jurisdiction.” Commonwealth v. Borovichka, 18 A.3d
1242, 1254 (Pa.Super.2011) (citation omitted). It is also
well-established that “[i]f no statutory authorization exists
for a particular sentence, that sentence is illegal and
subject to correction.” Commonwealth v. Rivera, 95
A.3d 913, 915 (Pa.Super.2014) (citation omitted). “An
illegal sentence must be vacated.” Id. “Issues relating to
the legality of a sentence are questions of law[.] ... Our
standard of review over such questions is de novo and our
scope of review is plenary.” Commonwealth v. Akbar, 91
A.3d 227, 238 (Pa.Super.2014) (citations omitted).

Commonwealth v. Wolfe, 106 A.3d 800, 801-02 (Pa.Super.2014) appeal

granted, No. 63 MAL 2015, 2015 WL 4755651 (Pa. Aug. 12, 2015).

This Court has analyzed the terms of plea bargains as follows:

Where the plea bargain calls for a specific sentence that is
beyond the prosecutor’s narrowly limited authority in
sentencing matters, the plea bargain implicates the court’s
substantive sentencing power, as well as its guardianship
role, and must have court approval. Commonwealth v.
Smith, 664 A.2d 622 ([Pa.Super.]1995), appeal denied,
679 A.2d 229 ([Pa.]1996). Thus, the trial court has broad
discretion in approving or rejecting plea agreements.
Commonwealth v. Chazin, 873 A.2d 732, 737
(Pa.Super.2005), appeal denied, 887 A.2d 1239

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([Pa.]2005). The court may reject the plea bargain if the
court thinks it does not serve the interests of justice. Id. If
the court is dissatisfied with any of the terms of the plea
bargain, it should not accept the plea; instead, it should
give the parties the option of proceeding to trial before a
jury. See Pa.R.Crim.P. 590(A)(3) and Comment. Assuming
the plea agreement is legally possible to fulfill, when the
parties enter the plea agreement on the record, and the
court accepts and approves the plea, then the parties and
the court must abide by the terms of the agreement. See
Commonwealth v. Kersteter, 877 A.2d 466, 470
(Pa.Super.2005). See also Commonwealth v.
Townsend, 693 A.2d 980 (Pa.Super.1997) (reiterating
distinction between agreements in which parties have
agreed upon specific sentence and agreements in which
parties have left length of sentence to discretion of court);
Commonwealth v. Coles, 530 A.2d 453
([Pa.Super.]1987), appeal denied, 559 A.2d 34
([Pa.]1989) (holding court cannot unilaterally countermand
specific sentence in plea bargain and reduce sentence
without Commonwealth’s consent).

Commonwealth v. Parsons, 969 A.2d 1259, 1268 (Pa.Super.2009),

appeal denied, 982 A.2d 1228 (Pa.2009).

Further,

there are various options, including an agreement to make
no recommendation or…an agreement to make a favorable
but non-binding recommendation. So long as the limits of
the agreement are plainly set forth on the record,
understood and agreed to by the parties, and approved by
the trial court, we find no impediment…to the offer,
acceptance, performance or enforcement of such plea
agreements.

Commonwealth v. McClendon, 589 A.2d 706, 710 (Pa.Super.1991),

appeal denied, 597 A.2d 1151 (Pa.1991).

Here, Appellant entered into a plea agreement with the

Commonwealth. In exchange for his guilty plea, the remaining charges

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against him were nolle prossed, the Commonwealth did not charge Appellant

with additional robberies, and it agreed to seek concurrent sentences for the

two robbery convictions. Appellant directs us to the following alleged

exchange:

[PROSECUTOR]: Your Honor, [Appellant’s] cases are
docketed at 11-CR-2853 and 2855. It’s my understanding
he’ll be pleading guilty to one count of robbery in each of
those cases, graded as a felony of the first degree
punishable by up to 20 years in prison and a $25,000.00
fine.

The agreement also incorporates a deadly weapon
enhancement to be applied. However, the agreement
includes that these matters be run concurrent for the
defendant.

[DEFENSE COUNSEL]: That’s correct, your Honor. Just in
addition to that, there are two other docket numbers out
there. They’re minor offenses. They’re going to be [nolle
prossed] and the Commonwealth will not seek to invoke a
mandatory as well as not have any other charges filed for
any other robberies.

* * *

[THE COURT]: At this time I will accept the plea.

Appellant’s Brief at 4-5 (quoting “(NT, 6/26/12,[6] p. 2,3,5&6)”). The

transcript from the guilty plea hearing is not included in the certified record,

____________________________________________

6
This is the date listed in Appellant’s brief. It is more likely this hearing
took place on March 26, 2012, the same day Appellant completed the
written colloquy, and before the court sentenced Appellant.

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and so we cannot consider it in this appeal. 7 Even if it was included in the

record and the previous exchange transpired, Appellant’s issue merits no

relief because he completed a written guilty plea colloquy that provides:

13. State specifically in detail any plea agreement with
the District Attorney.

11 CR 2853 – Robbery (F1)
11 CR 2855 – Robbery (F1)
CW agrees to concurrent sentences
NP all remaining cases
∆ will not be charged w/ other robberies
No mand. min.

Guilty Plea Colloquy, dated March 26, 2012, at 2 (verbatim). This colloquy

is signed by Appellant.

Later in the colloquy, Appellant indicated that he understood the court

was not bound by the agreement:

14. Do you understand that the Court is not bound by the
agreement you made with the District Attorney?

Yes

15. Do you understand that the maximum penalty to the
charges you are pleading guilty to is:

F1 – 20 yr/$25000(XL) Yes
____________________________________________

7
See Commonwealth v. Martz, 926 A.2d 514, 524-25 (2007) (“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. It is also well-settled in this
jurisdiction that it is Appellant’s responsibility to supply this Court with a
complete record for purposes of review. A failure by Appellant to insure that
the original record certified for appeal contains sufficient information to
conduct a proper review constitutes waiver of the issue sought to be
examined.”)

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15 (a) If you are pleading guilty to more than one charge,
do you understand that the Judge may impose consecutive
sentences?

Yes

If the answer to the preceding question is yes, state the
total sentence that may be imposed on you.

40 yrs/$50,000

Guilty Plea Colloquy at 3.

At sentencing, counsel for Appellant reminded the court of the plea

agreement:

[DEFENSE COUNSEL]: Your honor, I would point out that
the guilty plea colloquy does have an agreement with the
Commonwealth that the Commonwealth would agree to
concurrent sentences, and I believe we discussed that
matter with the [c]ourt at the time of the guilty plea. So I
would ask the [c]ourt when imposing sentence if it would
stay at the bottom end of the standard range. It’s five and
a half years. I think that’s more than enough time to
punish, to rehabilitate, and to deter future criminal conduct
in the state system; and I would ask the [c]ourt to run the
two sentences concurrent as set forth in the plea
agreement.

N.T., 6/19/12, at 3-4.

The Commonwealth did not object or ask the court to impose

Appellant’s sentences consecutively. Further, Appellant was not charged

with other robberies, and the eight other charges against him were nolle

prossed. Thus, the Commonwealth abided by the terms of the plea

agreement.

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Although the plea agreement required the Commonwealth to refrain

from seeking consecutive sentences, the court was not bound by the

Commonwealth’s recommendation and chose to impose consecutive

sentences for Appellant’s two armed robbery convictions. The court imposed

an aggregate sentence of seven and one half (7½) to fifteen (15) years’

incarceration, followed by fifteen (15) years’ special probation. As Appellant

indicated in his written guilty plea colloquy, the court could have sentenced

him to forty (40) years’ incarceration. The sentence was legal and did not

violate the terms of the plea agreement.8 Thus, Appellant’s first issue merits

no relief.

In his second issue, Appellant challenges the discretionary aspects of

his sentence.

Challenges to the discretionary aspects of sentencing do not entitle a

petitioner to review as of right. Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super.2011). Before this Court can address such a discretionary

challenge, an appellant must invoke this Court’s jurisdiction by satisfying the

following four-part test:

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8
Appellant does not argue that his plea agreement was unlawfully induced,
but we note that his written colloquy indicates he entered the plea
intelligently, knowingly, and voluntarily. See Commonwealth v. Moser,
921 A.2d 526, 529 (Pa.Super.2007) (“where the record clearly demonstrates
that a guilty plea colloquy was conducted, during which it became evident
that the defendant understood the nature of the charges against him, the
voluntariness of the plea is established.”).

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(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.

Id.

Presently, Appellant preserved his issues in a post-sentence motion

and filed a timely notice of appeal. Further, Appellant’s brief includes a

concise statement of reasons relied upon for allowance of appeal with

respect to the discretionary aspects of his sentence pursuant to Pa.R.A.P.

2119(f). See Appellant’s Brief at 11-12. We now must determine whether

Appellant presents a substantial question that the sentence appealed from is

not appropriate under the Sentencing Code.

“The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d

526, 533 (Pa.Super.2011). Further:

A substantial question exists only when the appellant
advances a colorable argument that the sentencing judge’s
actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing process.

Id. (internal citations omitted).

Here, Appellant argues the court should not have considered his prior

conviction for a bank robbery, the fact that the offenses involved knives and

that the crimes involved confronting and scaring people with weapons as

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aggravating factors because they were already included as factors within the

grading of the offense of robbery, threat of immediate serious bodily injury.

He further claims the previously mentioned aggravating factors were

included within his offense gravity score and his prior record score and the

court abused its discretion by erroneously applying the guidelines.

“A claim that the sentencing court misapplied the Sentencing

Guidelines presents a substantial question.” Commonwealth v. Cook, 941

A.2d 7, 11 (Pa.Super.2007). Thus, we grant Appellant’s petition for

allowance of appeal and address the merits of his claim.

We review Appellant’s sentencing claim under the following standard:

Sentencing is a matter vested in the sound discretion of
the sentencing judge, and a sentence will not be disturbed
on appeal absent a manifest abuse of discretion. In this
context, an abuse of discretion is not shown merely by an
error in judgment. Rather, the appellant must establish, by
reference to the record, that the sentencing court ignored
or misapplied the law, exercised its judgment for reasons
of partiality, prejudice, bias or ill will, or arrived at a
manifestly unreasonable decision.

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa.Super.2014) (en

banc), appeal denied, 104 A.3d 1 (Pa.2014).

Appellant was convicted under the following statute:

§ 3701. Robbery

(a) Offense defined.--

(1) A person is guilty of robbery if, in the course of
committing a theft, he:

* * *

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(ii) threatens another with or intentionally puts him
in fear of immediate serious bodily injury…

18 Pa.C.S. § 3701.

This offense has an offense gravity score of ten (10). 204 Pa.Code §

303.15. Appellant had a prior record score of four (4) for a bank robbery.

When utilizing the Deadly Weapons Enhancement (“DWE”) Used Matrix, the

standard range provided for a sentence of sixty-six (66) to seventy-eight

(78) months’ incarceration with plus or minus twelve (12) months for

calculation of the mitigated or aggravated range. Pa.Code § 303.17(b).

The court sentenced Appellant to ninety (90) to one hundred eighty

(180) months’ incarceration, which was in the aggravated range of the

sentence. Upon sentencing him, the court stated:

[Appellant], in the future you may be able to be
productive, but the [c]ourt, in reviewing this through – I
mean, when you have a form of bank robbery and both of
these involve knives in regard to people that work as
clerks at [Convenience] Stores who went to work to pay
their bills and they face you coming in with a knife robbing
them, and people shouldn’t have to be worried about that
when they go to work…

And the fact that you bring the knives in after you’ve
already served a sentence for bank robbery, the [c]ourt
can’t just look and say, [“]Well, that’s okay.[”] There is a
protection of society that needs to be paid to the citizens.

And in this matter the [c]ourt is going to sentence you in
one count in the aggravated range based upon the facts
and circumstances of your prior involvement with the
robbery and sentence you to 90 to 180 months, plus five
years of special probation.

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And on the second count the [c]ourt is going to be giving
you ten years[’] probation consecutive to the first
sentence. Obviously, no drugs or alcohol, nor must you
frequent any liquor-licensed premise. You must remain in
treatment upon your release.

N.T., 6/19/12 at 5-6.

The court specifically stated that it chose to give Appellant an

aggravated range sentence based on the fact that he used knives to rob

convenience store employees while they were trying to make a living and

that Appellant continued to commit armed robberies after he had served a

prison sentence for robbing a bank. Although these actions supported

Appellant’s convictions, offense gravity score, prior record score, and deadly

weapon enhancement, the specific details, which are not in the statutes,

offended the court. The court did not abuse its discretion in considering

these factors and sentencing Appellant in the aggravated range.

In his final issue, Appellant argues the court erred by failing to place

sufficient reasons on the record to justify sentencing him in the aggravated

range with an additional term of fifteen (15) years of special probation.

Again, we disagree.

The relevant sentencing statute provides, in pertinent part:

(b) General standards.--In selecting from the
alternatives set forth in subsection (a), the court shall
follow the general principle that the sentence imposed
should call for confinement that is consistent with the
protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the
community, and the rehabilitative needs of the defendant.
The court shall also consider any guidelines for sentencing

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and resentencing adopted by the Pennsylvania Commission
on Sentencing and taking effect under section 2155
(relating to publication of guidelines for sentencing,
resentencing and parole and recommitment ranges
following revocation). In every case in which the court
imposes a sentence for a felony or misdemeanor, modifies
a sentence, resentences an offender following revocation
of probation, county intermediate punishment or State
intermediate punishment or resentences following remand,
the court shall make as a part of the record, and
disclose in open court at the time of sentencing, a
statement of the reason or reasons for the sentence
imposed. In every case where the court imposes a
sentence or resentence outside the guidelines adopted by
the Pennsylvania Commission on Sentencing under
sections 2154 (relating to adoption of guidelines for
sentencing), 2154.1 (relating to adoption of guidelines for
county intermediate punishment), 2154.2 (relating to
adoption of guidelines for State intermediate punishment),
2154.3 (relating to adoption of guidelines for fines),
2154.4 (relating to adoption of guidelines for resentencing)
and 2154.5 (relating to adoption of guidelines for parole)
and made effective under section 2155, the court shall
provide a contemporaneous written statement of the
reason or reasons for the deviation from the guidelines to
the commission, as established under section 2153(a)(14)
(relating to powers and duties). Failure to comply shall be
grounds for vacating the sentence or resentence and
resentencing the defendant.

42 Pa.C.S. § 9721.

As previously stated, the court did state its reasons for sentencing

Appellant in the aggravated range.9 The court was offended by Appellant’s

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9
Additionally, the court reviewed Appellant’s pre-sentence report before
sentencing, and we can presume it also considered these factors when
sentencing Appellant. See Commonwealth v. Devers, 546 A.2d 12, 18-19
(Pa.1988) (“Where pre-sentence reports exist, we shall continue to presume
that the sentencing judge was aware of relevant information regarding the
(Footnote Continued Next Page)

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flagrant violation of the law after he had already served a prison sentence

for robbing a bank. The court specifically expressed its desire to protect the

public, especially hard-working convenience store clerks who were trying to

pay their bills without being threatened with knives and robbed by Appellant.

Further, the court demonstrated its consideration of Appellant’s rehabilitative

needs in fashioning its sentence by imposing the special probation and

treatment. The court stated its reasons for imposing Appellant’s sentence

on the record and did not err.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/4/2015

_______________________
(Footnote Continued)

defendant’s character and weighed those considerations along with
mitigating statutory factors. A pre-sentence report constitutes the record
and speaks for itself…Having been fully informed by the pre-sentence report,
the sentencing court’s discretion should not be disturbed.”).

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