J-S15038-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
STEVEN BURNS,
Appellant No. 2223 EDA 2014
Appeal from the Judgment of Sentence March 26, 2014
in the Court of Common Pleas of Philadelphia County
Criminal Division at Nos.: CP-51-CR-0008633-2013
CP-51-0008635-2013
BEFORE: BENDER, P.J.E., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MARCH 02, 2016
Appellant, Steven Burns, appeals from the judgment of sentence of
March 26, 2014, entered following his open guilty plea to attempted murder,
aggravated assault, robbery, burglary, criminal conspiracy, possession of a
firearm prohibited, possession of an instrument of crime, and simple
assault.1 Specifically, Appellant challenges the voluntariness of his guilty
plea, the legality of his sentence, and the discretionary aspects of his
sentence. For the reasons discussed below, we affirm in part and vacate in
part.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 901(a), 2702(a)(1), 3701(a)(1)(ii), 3502(a)(1), 903(c),
and 6105(a)(1), 907(a), and 2701(a), respectively.
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We take the underlying facts and procedural history in this matter
from the trial court’s April 23, 2015 opinion and our independent review of
the certified record.
On March 12, 2013 at approximately 9:25 p.m., [the victim] was
in her home at 2072 Carver Street in the City and County of
Philadelphia. [The victim’s] three young children, aged [twelve],
[four], and [five] days, were also in the home with her. [The
victim] heard a knock on the front door and, through the closed
door, asked who it was. Appellant identified himself as Rob and
stated that he needed to talk to [the victim’s] fiancé. [The
victim] stated that her fiancé was not home and Appellant told
her to take down a message, while referring to [the victim] by
her nickname. [The victim] opened the door, at which point
Appellant and his codefendant, Rodney Smith, both armed with
handguns, forced their way into the home. Appellant had a
small silver handgun that he pointed at [the victim’s] face.
Both men began asking where the money was, and [the
victim] stated that she did not have any money. [The
codefendant] went upstairs while Appellant forced [the victim]
upstairs by grasping her ponytail and holding his gun to the back
of her head. [The victim’s] four year old son was crying and at
some point Appellant threatened to kill the child if [the victim]
could not get him to be quiet. [The codefendant] ransacked the
bedroom and was unable to find anything of value. Appellant
then forced [the victim] to lie face down and stated, “I guess this
bitch is willing to die for this money.” Appellant then unloaded
all but one round from the gun’s chamber and began to play
Russian roulette. [The victim] heard Appellant pull the trigger
twice.
At that point, Philadelphia Police Officers knocked on the
door responding to a report of screaming inside the residence.
The two men then ran down the stairs and [the victim] ran to
the door to allow the officers to enter. Appellant ran into the
rear alley and attempted to jump a fence, but realized he was
cornered and threw his gun into the air. Appellant resisted
arrest and broke loose while only one hand was cuffed. He
began swinging at the Officers, one of whom received a
laceration on his face after being struck by the handcuffs.
Appellant and [the codefendant] were both arrested at the scene
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and identified as the perpetrators by [the victim]. Appellant had
a previous robbery conviction and as such, was prohibited from
possessing a firearm.
(Trial Court Opinion, 4/23/15, at 2-3) (footnote omitted).
On July 15, 2013, the Commonwealth filed an information charging
Appellant with the aforementioned offenses and other related crimes. On
January 15, 2014, Appellant entered an open guilty plea to the
aforementioned offenses; in return, the Commonwealth nolle prossed the
remaining charges. On March 18, 2014, the trial court imposed an
aggregate sentence of not less than twenty-one nor more than forty-two
years of incarceration. Appellant did not seek to withdraw his guilty plea.
On March 20, 2014, the Commonwealth filed a post-sentence motion
explaining that the docket incorrectly showed that it had nolle prossed the
attempted murder charge. The trial court granted the motion.
On March 26, 2014, the trial court resentenced Appellant to an
identical aggregate sentence. Appellant did not seek to withdraw his guilty
plea. On March 28, 2014, Appellant filed a post-sentence motion challenging
the legality and discretionary aspects of his sentence. (See Defense Post-
Sentence Motion, 3/28/14, at 2-5). Appellant did not seek to withdraw his
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guilty plea. (See id.). The trial court denied the motion by operation of law
on July 21, 2014. The instant, timely appeal followed.2
On appeal, Appellant raises the following questions for our review:
1. Was not the voluntariness of [A]ppellant’s guilty plea
implicated and did not the [trial] court violate [A]ppellant’s
federal and state constitutional rights to due process, his right to
a jury trial and Rule 590 of the Rules of Criminal Procedure, by
coercing [A]ppellant to plead guilty on the brink of trial by telling
him, inter alia, that if convicted after trial he would remain in
prison for his “natural lifetime,” but that in a non-negotiated
guilty plea he would “do better” than the Commonwealth’s offer
of twenty to forty years?
2. Did not the trial court err as a matter of law and impose
an illegal sentence by sentencing [A]ppellant on both attempted
murder and aggravated assault, charges that merge for
sentencing purposes?
3. On the offense of burglary, did not the [trial] court
violate the Sentencing Code by sentencing [A]ppellant to the
statutory maximum sentence of ten to twenty years without
calculating the offense gravity score or the sentencing guidelines
and by sentencing above the aggravated range of the guidelines
without stating any contemporaneous reasons for the
deviations?
4. On the offense of simple assault, did not the [trial] court
violate the Sentencing Code by sentencing [A]ppellant to the
statutory maximum sentence of one to two years without
calculating the offense gravity score of the sentencing
guidelines?
5. For the violation of the Uniform Firearms Act, 18 Pa.C.S.
§ 6105, should not this matter be remanded for the correction of
a clerical error in the sentencing order?
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2
Appellant filed a timely statement and supplemental statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b). The trial court
subsequently issued an opinion. See Pa.R.A.P. 1925(a).
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(Appellant’s Brief, at 3-4).
In his first issue, Appellant claims that his guilty plea was not knowing,
intelligent, and voluntary. Specifically, he claims that the trial court coerced
him into pleading guilty. (See Appellant’s Brief, at 19-26). However,
Appellant has waived this claim.
This Court has stated:
Settled Pennsylvania law makes clear that by entering a
guilty plea, the defendant waives his right to challenge on direct
appeal all nonjurisdictional defects except the legality of the
sentence and the validity of the plea.
Indeed, a defendant routinely waives a
plethora of constitutional rights by pleading guilty,
including the right to a jury trial by his peers, the
right to have the Commonwealth prove his guilt
beyond a reasonable doubt, and his right to confront
any witnesses against him. Furthermore, a
defendant is permitted to waive fundamental
constitutional protections in situations involving far
less protection of the defendant than that presented
herein.
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.
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, 237 Pa.Super. 336,
352 A.2d 140, 141 (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
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could, indeed, preclude an otherwise costly, time consuming,
and unnecessary appeal to this court”).
Likewise:
Normally, issues not preserved in the trial
court may not be pursued before this Court.
Pa.R.A.P. 302(a). For example, a request to
withdraw a guilty plea on the grounds that it was
involuntary is one of the claims that must be raised
by motion in the trial court in order to be reviewed
on direct appeal. Similarly, challenges to a court’s
sentencing discretion must be raised during
sentencing or in a post-sentence motion in order for
this Court to consider granting allowance of appeal.
Moreover, for any claim that was required to be
preserved, this Court cannot review a legal theory in
support of that claim unless that particular legal
theory was presented to the trial court. Thus, even
if an appellant did seek to withdraw pleas or to
attack the discretionary aspects of sentencing in the
trial court, the appellant cannot support those claims
in this Court by advancing legal arguments different
than the ones that were made when the claims were
preserved.
Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super.
2008), appeal denied, 601 Pa. 696, 972 A.2d 521 (2009).
Further, a defendant who attempts to withdraw a guilty
plea after sentencing must demonstrate prejudice on the order
of manifest injustice before withdrawal is justified. A plea rises
to the level of manifest injustice when it was entered into
involuntarily, unknowingly, or unintelligently. . . .
Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013),
appeal denied, 87 A.3d 319 (Pa. 2014) (some citations and quotation marks
omitted).
Here, Appellant did not preserve his challenge to the voluntariness of
his guilty plea by either objecting during the plea colloquy or filing a post-
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sentence motion to withdraw the plea. See Pa.R.Crim.P. 720(B)(1)(a)(i).
Accordingly, we decline to review Appellant’s challenge to the validity of his
plea.3 See Lincoln, supra at 609-10. Appellant has waived his first issue.
In his second issue, Appellant claims that his sentence is illegal
because the trial court sentenced him on both attempted murder and
aggravated assault, charges that he claims merge for purposes of
sentencing. (See Appellant’s Brief, at 27-29). While Appellant asks that we
vacate his sentence for aggravated assault, he does not ask that we remand
the matter for resentencing. (See id. at 29).
In its brief, the Commonwealth agrees that the sentence is illegal
because aggravated assault should have merged with attempted murder for
purposes of sentencing. (See Commonwealth’s Brief, at 8). The
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3
In his reply brief, Appellant acknowledges that “ordinarily” a challenge to
the voluntariness of a guilty plea must be raised in the trial court.
(Appellant’s Reply Brief, at 3). However, he claims, in reliance on this
Court’s decisions in Commonwealth v. Moore, 528 A.2d 1364, 1366 (Pa.
Super. 1987) and Commonwealth v. Faust, 471 A.2d 1263, 1266 (Pa.
Super. 1984), that “extraordinary circumstances” exist which necessitate
this Court’s review of his claim. (Id. at 3-4). We disagree. Both Moore
and Faust are inapposite; they merely note that where an appellant claimed
that he was prevented from attempting to withdraw his guilty plea at the
trial court level because of ineffectiveness of counsel, this court could hear
the merit of the claim on direct appeal. See Moore, supra at 1366; Faust,
supra at 1266. Here, Appellant does not claim he received ineffective
assistance of counsel below, and provides no explanation whatsoever for his
failure to attempt to withdraw his guilty plea during the approximately two-
month period between his guilty plea and his initial sentencing, the
approximately one week period between the initial sentencing and
resentencing, or by raising it in his post-sentence motion.
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Commonwealth states that a resentencing is unnecessary because “the
sentence for aggravated assault was concurrent and thus had no impact on
the sentencing scheme.” (Id.) (citation omitted).
Both parties agree that the trial court confused the facts underlying
Appellant’s plea to simple assault and aggravated assault, erroneously
believing that the aggravated assault charge arose out of Appellant’s
resisting arrest and injuring one of the police officers. (See id. at 8 n. 2;
Appellant’s Brief, at 28-29). Rather, both parties agree and cite to portions
of the record that demonstrate that the aggravated assault charge arose out
of the same set of facts as the attempted murder charge, namely Appellant’s
firing a gun at the victim, while the simple assault charge arose out of the
separate fracas with the police. (See id. at 8 n. 2; id. at 28-29). We agree.
“A claim that convictions merge for sentencing is a question of law;
therefore, our standard of review is de novo and our scope of review is
plenary.” Commonwealth v. Kimmel, 125 A.3d 1272, 1275 (Pa. Super.
2015) (citation omitted). As both parties state (see Appellant’s Brief, at 27-
28; Commonwealth’s Brief at 8), it is long settled that aggravated assault is
a lesser included offense of attempted murder when it arises from a single
criminal act. See Commonwealth v. Anderson, 650 A.2d 20, 23-24 (Pa.
1994), decision modified on denial of reargument, 653 A.2d 615 (Pa. 1994).
Therefore, for the reasons discussed above, we vacate the March 26,
2014 judgment of sentence for Appellant’s conviction for aggravated assault,
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18 Pa.C.S.A. § 2702(a)(1). Despite the trial court’s error in sentencing
appellant for aggravated assault, we believe a remand for resentencing is
not necessary. The court sentenced Appellant to a concurrent term of
incarceration for attempted murder and aggravated assault. Under these
circumstances, it is clear that a remand for resentencing would not result in
any change of sentence, so none is necessary. See Commonwealth v.
Thur, 906 A.2d 552, 569-70 (Pa. Super. 2006), appeal denied, 946 A.2d
687 (Pa. 2008).
In his third and fourth issues, Appellant challenges the discretionary
aspects of sentence.4 (See Appellant’s Brief, at 30-35). The right to appeal
the discretionary aspects of a sentence is not absolute. See
Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004), appeal
denied, 860 A.2d 122 (Pa. 2004). When an appellant challenges the
discretionary aspects of the sentence imposed, he must present “a
substantial question as to the appropriateness of the sentence[.]”
Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003)
(citations omitted). An appellant must, pursuant to Pennsylvania Rule of
Appellate Procedure 2119(f), articulate “a colorable argument that the
sentence violates a particular provision of the Sentencing Code or is contrary
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4
We note that Appellant preserved his discretionary aspects of sentence
claim by filing a timely post-sentence motion for reconsideration of
sentence. See McAfee, infra at 275.
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to the fundamental norms underlying the sentencing scheme.”
Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super. 2005)
(en banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation omitted). If
an appellant’s Rule 2119(f) statement meets these prerequisites, we have
found that a substantial question exists. See Commonwealth v. Goggins,
748 A.2d 721, 727 (Pa. Super. 2000) (en banc), appeal denied, 759 A.2d
920 (Pa. 2000). “Our inquiry must focus on the reasons for which the
appeal is sought, in contrast to the facts underlying the appeal, which are
necessary only to decide the appeal on the merits.” Id. (emphases in
original).
Here, Appellant has included a Rule 2119(f) statement in his brief.
(See Appellant’s Brief, at 15-18). It states that the sentencing court failed
to calculate the offense gravity score and sentencing guidelines for the
offenses of aggravated assault,5 burglary, and simple assault; and failed to
consider the guidelines ranges in imposing those sentences. (See id. at
16). Further, Appellant claims that the sentencing court failed to state
sufficient reasons on the record for imposing a sentence outside the range of
the guidelines. (See id. at 17). We disagree.
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5
Because we have vacated the judgment of sentence for aggravated
assault, we need not consider Appellant’s contentions with respect to the
discretionary aspects of that sentence.
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Appellant first claims that the trial court failed to consider the offense
gravity and guidelines ranges for burglary and simple assault. A claim that
the sentencing court failed to consider the sentencing guidelines raises a
substantial question. See Commonwealth v. Twitty, 876 A.2d 433, 438
(Pa. Super. 2005), appeal denied, 892 A.2d 823 (Pa. 2005). Therefore, we
will address the merits of Appellant’s claim.
Our standard of review is settled.
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. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015),
appeal denied, 125 A.3d 1198 (Pa. 2015) (citation omitted).
In the instant matter, the sentencing court had the benefit of a Pre-
Sentence Investigation Report. We have stated that:
[w]hen imposing a sentence, a court is required to
consider the particular circumstances of the offense and the
character of the defendant. . . . Where the sentencing court had
the benefit of a [PSI], we can assume the sentencing court was
aware of relevant information regarding the defendant’s
character and weighed those considerations along with
mitigating statutory factors.
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010)
(quotation marks and citations omitted). Here, the sentencing court stated
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that it had reviewed the PSI, as well as the mental health evaluation. (See
N.T. Sentencing, 3/18/14, at 4-5, 9-10, 19).
In Commonwealth v. Rodda, 723 A.2d 212 (Pa. Super. 1999) (en
banc), this Court held that, when the trial court sentences outside the
guidelines, the court “need not recite the numeric ranges of sentences within
the guidelines so long as the record demonstrates the court’s recognition of
the applicable sentencing range and the deviation of sentence from that
range.” Id. at 213. In so doing, we noted that this Court has generally
vacated sentences in those instances where the record suggested that,
although the trial court considered the guidelines, it “applied an incorrect
sentence based on a misconception of the applicable sentencing range.” Id.
at 215. We further noted that, “where the record has reflected that the
court acted on a sound understanding of the sentencing range and imposed
sentence accurately, we have affirmed the judgment of sentence even in the
absence of a guidelines recitation.” Id. at 216.
Appellant here has not alleged that the sentencing court misconceived
or in other ways erroneously applied the sentencing guidelines. (See
Appellant’s Brief, at 30-35). Although, he attempts to argue,
unconvincingly, that he is not, in actuality, claiming the sentence is not valid
because the sentencing court did not say the “magic words;” that is, in fact,
the essence of his argument. (See id. at 31; see id at 30-35). This is the
very theory that we rejected in Rodda.
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As discussed above, the sentencing court reviewed Appellant’s prior
record score, the pre-sentence investigation report, the mental health
evaluation and the Commonwealths’ sentencing memorandum. (See N.T.
Sentencing, 3/18/14, at 4-5, 9-10, 19). Further, there was extensive
argument at sentencing regarding the general, aggregate guideline ranges.
(See id. at 9-16). Thus, it was evident at the sentencing hearing, that all
parties, including Appellant, focused on the aggregate sentence, rather than
the individual guideline ranges for burglary and simple assault. (See id.).
We have thoroughly reviewed the sentencing transcript and find the
sentencing court understood the sentencing guidelines, considered them,
and indicated its awareness of the offense gravity scores and guidelines by
choosing to impose the statutory maximum sentence for burglary and simple
assault while declining to do so for attempted murder. (See id. at 40-42).
This is all that is required under Rodda. Appellant’s claim lacks merit. See
Commonwealth v. Griffin, 804 A.2d 1, 8 (Pa. Super. 2002), appeal
denied, 868 A.2d 1198 (Pa. 2005), cert. denied, 545 U.S. 1148 (2005)
(affirming judgment of sentence where court had reviewed PSI and
demonstrated that it considered sentencing guidelines and chose to depart
from them even though court did not enunciate specific guideline ranges).
Appellant next claims that the sentencing court did not sufficiently
state its reasons for the sentence. This claim also raises a substantial
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question and we will therefore address the merits of this claim. See Rodda,
supra at 214.
Our review of the record belies the claim that the sentencing court
failed to place sufficient reasons for the sentence on the record. Prior to
announcing the sentence, in a lengthy statement, the sentencing court
noted: (1) utter lack of mitigating factors with the exception of Appellant’s
troubled childhood; (2) the multiple prior unsuccessful attempts to
rehabilitate Appellant; and (3) that the crime took place within four months
of Appellant being released from supervision for a similar offense. (See N.T.
Sentencing, 3/18/14, at 40-42). Further, as discussed above the sentencing
court had previously indicated that it considered the PSI and Appellant’s
mental health evaluation. (See id. at 4-5, 9-10, 19). Thus, the sentencing
court adequately stated its reasons for sentencing Appellant to the statutory
maximum, and we find that the record substantiates the trial court’s
sentencing determinations. See Commonwealth v. Walls, 926 A.2d 957,
961-66 (Pa. 2007) (so long as the trial court imposed individualized
sentence that was reasonable there is no abuse of discretion); see also
Commonwealth v. Lawson, 650 A.2d 876, 882 (Pa. Super. 1994), appeal
denied, 655 A.2d 985 (Pa. 1995) (trial court did not abuse its discretion in
sentencing outside guidelines where Appellant had lengthy criminal history,
did not respond well to probation or parole, and was unlikely to be
rehabilitated). Appellant’s third and fourth claims lack merit.
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In his fifth and final claim, Appellant contends that this Court needs
to remand this matter to correct an alleged error in the sentencing order.
(See Appellant’s Brief, at 36-37). Appellant did not raise this claim in either
his Rule 1925(b) statement or his supplemental Rule 1925(b) statement.
(See Statement of Errors Complained of on Appeal, 10/30/14, at
unnumbered pages 1-3; Supplemental Statement of Errors Complained of on
Appeal, 1/21/15, at unnumbered pages 1-4). As amended in 2007,
Pennsylvania Rule of Appellate Procedure 1925 provides that issues that are
not included in the Rule 1925(b) statement or raised in accordance with Rule
1925(b)(4) are waived. See Pa.R.A.P. 1925(b)(4)(vii); see also
Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998), superseded by
rule on other grounds as stated in Commonwealth v. Burton, 973 A.2d
428, 431 (Pa. Super. 2009). Accordingly, we find that because Appellant did
not raise this issue in his Rule 1925(b) statements, he waived this claim.
Accordingly, for the reasons discuss above we affirm the judgment of
sentence in part and vacate the judgment of sentence for aggravated
assault.
Judgment of sentence AFFIRMED in part and VACATED in part.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/2/2016
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