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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JUNIOR OLEGARIO MARTE
Appellant No. 3061 EDA 2016
Appeal from the Judgment of Sentence July 28, 2016
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0003167-2015
BEFORE: BOWES, STABILE, AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 13, 2017
Junior Olegario Marte appeals from his July 28, 2016 judgment of
sentence of three to six years imprisonment in the aggregate, which was
imposed after he pled guilty to three counts of recklessly endangering
another person. After thorough review, we affirm.
The underlying facts were recited at the guilty plea hearing:
This incident occurred on June 23rd of last year. At around
5 p.m. Officer [Benjamin] Kocher responded to the area of South
12th Street and Vultee Street to assist Captain Bill Reinik with
stopping a vehicle that had driven pas[t] barricades. This is in
the area of the Merchants Square Mall[.] . . . There was a large
sinkhole there at that time. Fire, police and some Allentown
Police personnel had closed off the surrounding streets.
This defendant attempted to bypass the traffic that was
backed up and bypass the barriers that were blocking off the
streets . . . in order to . . . get through the area a little faster.
He did this at a high rate of speed, and initially almost struck
* Retired Senior Judge specially assigned to the Superior Court.
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one of the fire police officers that was regulating traffic at that
situation. That’s how Captain Reinik was alerted.
Captain Reinik then pursued the defendant who was
traveling at a high rate of speed down that area to the Merchant
Square Mall, at which point he exited his vehicle and [sic] was
essentially at a driveway, had the defendant pinned in the
driveway of the Merchant Square Mall.
At that time the defendant drove at him in an attempt to
get out of the area almost striking Captain Reinik. He had to
jump out of the way of the vehicle in order to do it. It’s sort of a
narrow roadway there.
And as the defendant was leaving, he drove at a high rate
of speed passing another fire officer that was regulating traffic.
Guilty Plea Hearing, 6/27/16, at 4-5.
Appellant pled guilty to three counts of recklessly endangering, 18
Pa.C.S. § 2705, graded as second-degree misdemeanors. In exchange, the
Commonwealth agreed not to pursue the charges of aggravated assault,
fleeing and eluding police, or the traffic offenses. The court conducted a
thorough oral colloquy advising Appellant that each of the offenses could
carry with it two years in jail. Appellant acknowledged that he also
completed a written colloquy, and that he read and understood that
document. Appellant represented further that he was not forced to take the
plea, no threats or promises were made, and that he was satisfied with
counsel. Appellant admitted that his reckless actions placed people in
danger.
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The court accepted the plea and ordered a pre-sentence investigation
(“PSI”). At the conclusion of the guilty plea hearing, the defense provided
two documents, one of which was identified as an evaluation performed by
Robert Gordon, a psychologist, that purportedly provided insight into
Appellant’s background.
On July 29, 2016, the court sentenced Appellant to one to two years
imprisonment on each count of recklessly endangering, all sentences to run
consecutively. Appellant filed a timely post-sentence motion seeking to
withdraw his guilty plea and reconsideration of his sentence. Following a
hearing, the court denied the motion.
Appellant was appointed new counsel, who timely filed an appeal on
Appellant’s behalf and a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. The trial court authored its Rule 1925(a) opinion,
and the matter is ripe for our review. Appellant presents two questions for
our considertion:
A. Whether the lower court abused its discretion in imposing
manifestly excessive and unreasonable sentences which were
at the statutory maximum limit and all imposed consecutively
when the court failed to consider any significant mitigating
factors, failed to apply and review all the necessary factors as
set forth in 42 Pa.C.S.A. § 9721(b) and 42 Pa.C.S.A.
§9781(c) and (d) or otherwise failed to set forth appropriate
reasons for its decision that the maximum sentences were the
only appropriate sentences?
B. Did the lower court err by denying the Defendant’s request to
withdraw his guilty plea, post-sentence, as the Defendant’s
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plea was not entered knowingly or voluntarily or that the
Defendant was innocent of the charge?
Appellant’s brief at 8-9 (unnecessary capitalization omitted).
Appellant’s first contention is that the sentences imposed were
manifestly excessive. He contends that imposition of the statutory
maximum sentence, and running those sentences consecutively, was
contrary to fundamental norms of the sentencing guidelines and ignored
legitimate mitigating factors.
As Appellant acknowledges, he presents a challenge to the
discretionary aspects of his sentence, which is not appealable as a matter of
right. Commonwealth v. Austin, 66 A.3d 798, 807-08 (Pa.Super. 2013).
In order to pursue such a claim on appeal, an appellant either must have
preserved his discretionary sentencing claim at sentencing or by post-
sentence motion and in his Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. Secondly, he must have filed a timely appeal.
Third, his brief must include a concise statement pursuant to Pa.R.A.P.
2119(f) with respect to the discretionary aspects of his sentence, and finally,
that statement must raise a substantial question that the sentence is
inappropriate or violative of the sentencing code.
Appellant complied with all of the prerequisites for review. He filed a
timely post-sentence motion, preserved the claim in his Rule 1925(b)
statement, and filed a Pa.R.A.P. 2119(f) statement raising a substantial
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question i.e., that the court failed to consider the factors in 42 Pa.C.S. §
9721.1 See Commonwealth v. Dodge, 77 A.3d 1263 (Pa.Super. 2013)
(assertion that the court failed to consider § 9721 factors raises a
substantial question). Thus, we may review his claim.
Our standard of review of a discretionary sentencing claim is well-
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,
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1 42 Pa.C.S. § 9721(b) provides general sentencing standards:
[T]he 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 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.
42 Pa.C.S. § 9721.
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exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014).
Appellant contends first that the trial court focused only on the danger
faced by police and fire personnel to the exclusion of mitigating factors.
According to Appellant, the sentence was excessive and inconsistent with the
protection of the public, the gravity of the offense, and his rehabilitative
needs.
The record refutes Appellant’s contention. Appellant testified at his
sentencing. He expressed remorse for his conduct and told the court that he
had not intended to hurt anyone. The court noted that Appellant had fifteen
prior arrests and eleven convictions, some of which were for aggravated
assault, yet Appellant continued to place people in danger. Defense counsel
painted Appellant’s behavior as “a product of his environment growing up,”
and “some of the interrelationships he’s had with law enforcement officials
over the last several years.” N.T. Sentencing, 7/28/16, at 8. Reference was
made to the psychological report of Dr. Gordon supplied at the guilty plea
hearing. Counsel asked that the court follow up with mental health and
order a long period of supervision to ensure that Appellant stayed “on the
straight and narrow.” Id. at 10.
The sentencing court discussed Appellant’s historical disregard for
authority and for the safety of others. It referenced Appellant’s conduct
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when arrested, where he swung at an officer, spit at police officers, and
threatened to kill them. The court observed that probation had been
unsuccessful in the past in curtailing such behavior, as had county sentences
and paroles. Noting that Appellant was not eligible for the recidivism risk
reduction incentive program (“RRRI”), the court imposed sentences that
were within the standard guideline range.2 The trial court stated on the
record at sentencing that it had reviewed the PSI. See Commonwealth v.
Downing, 990 A.2d 788 (Pa.Super. 2010) (trial court informed by a pre-
sentence report is presumed to be aware of all appropriate sentencing
factors). The court explained that it ran the sentences consecutively
because there were at least three different victims of Appellant’s crimes.
The imposition of consecutive rather than concurrent sentences was within
its sound discretion. Commonwealth v. Johnson, 961 A.2d 877, 880
(Pa.Super. 2008).
Appellant also challenges the trial court’s denial of his motion to
withdraw his guilty plea post-sentence. Appellant acknowledges that such a
motion should only be granted if he has demonstrated that manifest
injustice would result, and that generally this requires a showing that the
guilty plea was not entered knowingly, intelligently, and voluntarily.
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2 The standard minimum range sentence for recklessly endangering another
person, with Appellant’s prior record score of five, and an offense gravity
score of three, was six to twelve months.
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Commonwealth v. Hodges, 789 A.2 764, 765 (Pa.Super. 2002). In
support of his claim that his plea was not knowing, intelligent, or voluntary,
Appellant asks us to review the record of the guilty plea hearing and the
sentencing to determine whether he “fully understood the nature of his plea
and the factual basis required to hold him guilty of those charges.”
Appellant’s brief at 21. He maintains that the evidence was “unclear” and
that he lacked understanding of the charges. Id.
Upon review of a denial of the withdrawal of a guilty plea, this Court
examines the totality of the circumstances surrounding the plea to
determine whether it was validly entered. Commonwealth v. Flanagan,
854 A.2d 489 (Pa. 2004). “Post-sentence motions for withdrawal are
subject to higher scrutiny since courts strive to discourage entry of guilty
pleas as sentence-testing devices.” Commonwealth v. Islas, 156 A.3d
1185 (Pa.Super. 2017) (quoting Commonwealth v. Broaden, 980 A.2d
124, 129 (Pa.Super. 2009)). A defendant is bound by statements he made
during the plea colloquy. Commonwealth v. Brown, 48 A.3d 1275
(Pa.Super. 2012).
We have examined the totality of the circumstances surrounding the
entry of the plea. Commonwealth v. Muhammad, 794 A.2d 378
(Pa.Super. 2002). The guilty plea colloquy satisfied the requirements of
Pa.R.Crim.P. 590 and Muhammad, supra, and establishes that Appellant’s
guilty plea was knowingly, voluntarily, and intelligently entered. Appellant
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acknowledged that he understood that he was entering a guilty plea to three
counts of recklessly endangering another person, each a misdemeanor of the
second degree that could carry a sentence of up to two years in jail. N.T.
Guilty Plea, 6/27/16, at 3. While he initially disagreed with the
Commonwealth’s recitation of the facts underlying the charges, upon
additional questioning, Appellant conceded that the facts were true and that
his reckless actions put people in danger. Id. at 6-7.
The Commonwealth maintains that Appellant’s decision to plead guilty
was knowingly, voluntarily, and intelligently made, and that his “real
complaint is that he is dissatisfied with his sentence.” Commonwealth’s brief
at 12. The record supports that view. Prior to the pronouncement of
sentence, Appellant acknowledged that he could have injured people in the
streets, and that he pled guilty to recklessly endangering “because I know
that I messed up.” N.T. Sentencing, 7/28/16, at 5. After the court imposed
sentence, Appellant complained that it was “extravagant.” Id. at 14. He
protested that he did not hurt or intend to hurt anyone, denied committing
the crimes, and said he did not understand the plea bargain. Appellant’s
next statement provided the root of his dissatisfaction: “I didn’t understand
that I could do three years in jail.” Id. at 14-15.
We find that Appellant has not made the requisite showing of manifest
injustice to warrant reversal of the trial court’s order denying withdrawal of
his guilty plea.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/2017
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