J-S51025-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERTO GONZALEZ
Appellant No. 3442 EDA 2014
Appeal from the Judgment of Sentence September 24, 2012
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0002927-2011
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 16, 2015
Roberto Gonzalez appeals from the judgment of sentence imposed by
the Court of Common Pleas of Monroe County. After careful review, we
affirm.
On October 4, 2011, Gonzalez shot Terrance Tyson in the face when
Tyson approached Gonzalez’s vehicle. During the course of a jury trial, on
May 17, 2012, Gonzalez pled nolo contendere to one count of aggravated
assault.1 At a sentencing hearing on September 24, 2012, counsel argued
that Gonzalez had acted in self-defense, and sought to have the court
consider this as a factor in sentencing.
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 2702(a)(1).
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At the conclusion of the hearing, the court sentenced Gonzalez to 7 to
14 years’ incarceration, plus costs and restitution. The Commonwealth and
Gonzalez each filed a timely motion for reconsideration. Gonzalez’s motion
contained the following averments:
3. At his sentencing, [Gonzalez] presented evidence
concerning his innocence regarding the underlying charges as
well as the aggressive character of the victim.
4. [Gonzalez] believes, and therefore avers, that the Court, if
given the opportunity, might reconsider the extent to which
such evidence augers for a lesser sentence.
Motion for Reconsideration of Sentence, 10/4/11, at 1.
The Court held argument on October 22, 2012, during which counsel
for Gonzalez stated:
Our position – Mr. Gonzalez just wanted to come back – and I’m
not going to belabor the whole thing again. Mr. Gonzalez has
maintained his innocence throughout. And, really, I think the
reason he wanted us to return for – just as I put it in my motion,
Your Honor, was just, you know, to give appropriate weight.
N.T. Motion for Reconsideration Hearing, 10/22/12, at 5. At the conclusion
of the hearing, the court denied the motions filed by Gonzalez and the
Commonwealth.
On December 11, 2014, following the reinstatement of his appellate
rights nunc pro tunc, Gonzalez filed a timely notice of appeal.
In response to an order from the trial court, Gonzalez filed a concise
statement of errors complained of on appeal which states, in relevant part:
[Gonzalez] filed an appeal from the judgment of sentence nunc
pro tunc, which right was reinstated by virtue of his filing of a
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pro se petition seeking post-conviction relief. In that petition,
[Gonzalez] raises the issue that after-discovered evidence may
have changed the outcome of his trial. The nature of that
evidence is that the victim in his case was the target of a drive
by shooting in which another individual was killed, which tends
to validate his claim at trial that his victim was a drug dealer,
had violent tendencies and was involved in that dangerous
culture. [Gonzalez] was acting in self-defense of the threats and
actions made by the victim against him.
After a jury had been impaneled in [Gonzalez’s] case, he
seemingly abandoned this position and entered a plea of nolo
contendere to Aggravated Assault. [Gonzalez’s] prior record
score and offense gravity score was not set forth on his written
guilty plea colloquy form. However, both at time of sentencing
and at the hearing on the Commonwealth’s motion for
reconsideration of sentence, [Gonzalez] repeated his claims of
self-defense and professed innocence on that basis, admitting
that he entered a nolo contendere plea simply to avoid the
possibility of a harsher sentence.
[Gonzalez’s] complained of errors are therefore twofold: (1) the
sentence imposed was manifestly excessive and (2) that he did
not make a knowing, voluntary and intelligent plea due to the
fact that he maintained his innocence and claimed self-defense.
Accordingly, the court should not have accepted his plea of nolo
contendere, which has the same effect as a conviction and plea
of guilty, as [Gonzalez] was apparently confused as to the
nature and consequences of the plea as entered.
Concise Statement of [Errors] Complained of On Appeal, 1/9/15.
The trial court filed its Rule 1925(a) opinion on February 5, 2015.
On appeal, Gonzalez raises the following issues for our review:
1. Whether the court should have accepted [Gonzalez’s] plea of
nolo contendere as knowingly, voluntarily and intelligently
made where the guilty plea form interchanges “nolo
contendere” with “guilty” and where at time of sentencing, he
also maintained he was acting in self-defense.
2. Whether the trial court erred and abused its discretion in
sentencing [Gonzalez] to an excessive sentence without
considering the mitigating factors presented at the sentencing
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hearing and focusing on the nature of the crime rather than
the rehabilitative needs of [Gonzalez].
Appellant’s Brief, at 5.
Gonzalez first argues that the trial court erred by accepting his nolo
contendere plea. Based on our review of the record, it is apparent that prior
to the filing of his Rule 1925(b) statement, Gonzalez did not raise this issue
in the trial court. Gonzalez did not file a written motion to withdraw his plea
before sentencing. See Pa.R.Crim.P. 591(A). He did not file an oral motion
to withdraw his plea at sentencing. See Pa.R.Crim.P. 519, Comment. Nor
did he file a post-sentence motion to withdraw his plea. See Pa.R.Crim.P.
720(B)(a)(i).
“Issues not raised in the lower court are waived and cannot be raised
for the first time on appeal.” Pa.R.A.P. 302(a).
Historically, Pennsylvania courts adhere to this waiver principle
because “[i]t is for the court which accepted the plea to consider
and correct, in the first instance, any error which may have been
committed.” Commonwealth v. Roberts, 352 A.2d 140, 141
(Pa. Super. 1975) (holding that common and previously
condoned mistake of attacking guilty plea on direct appeal
without first filing petition to withdraw plea with trial court is
procedural error resulting in waiver; stating, “(t)he swift and
orderly administration of criminal justice requires that lower
courts be given the opportunity to rectify their errors before they
are considered on appeal”; “Strict adherence to this procedure
could, indeed, preclude an otherwise costly, time consuming,
and unnecessary appeal to this court”).
Commonwealth v. Lincoln, 72 A.3d 606, 610 (Pa. Super. 2013). “A plea
of nolo contendere when accepted properly by a court, is, in its effect upon a
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case, equivalent to a plea of guilty.” Commonwealth v. Warner, 324 A.2d
362, 363 (Pa. Super. 1974).
Because Gonzalez did not properly preserve a challenge to the validity
of his nolo contendere plea, we decline to review this issue on appeal.
Gonzalez next argues that the court erred by imposing an excessive
sentence without considering the mitigating factors presented at the
sentencing hearing and focusing on the nature of the crime rather than his
rehabilitative needs.2
In his statement of errors complained of on appeal, Gonzalez asserts
that his sentence was manifestly excessive. Rule 1925(b)(iv)(ii) provides, in
relevant part: “The Statement shall concisely identify each ruling or error
that the appellant intends to challenge with sufficient detail to identify all
pertinent issues for the judge.” Failure to raise an issue in a 1925(b)
statement will result in waiver. Commonwealth v. Castillo, 888 A.2d 775
(Pa. 2005). See also Commonwealth v. Hansley, 24 A.3d 410, 415
(finding waiver where Rule 1925(b) statement was too vague). Because
Gonzalez’s Rule 1925(b) statement contained only a bald assertion that his
sentence was excessive, we deem the issue waived.
Judgment of sentence affirmed.
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2
Gonzalez also raises this issue in his concise statement of the reasons
relied upon for allowance of appeal with respect to the discretionary aspects
of his sentence. See Pa.R.A.P. 2119(f).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/16/2015
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