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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
NATHAN GONZALES :
:
Appellant : No. 430 WDA 2017
Appeal from the Judgment of Sentence Entered February 7, 2017
In the Court of Common Pleas of Venango County Criminal Division at
No(s): CP-61-CR-0000430-2016
BEFORE: OLSON, J., OTT, J., and STRASSBURGER*, J.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 26, 2018
Appellant, Nathan Gonzales, appeals from the judgment of sentence
entered on February 7, 2017, as made final by the denial of Appellant’s post-
sentence motion on February 16, 2017. We affirm.
On January 23, 2017, Appellant pleaded guilty to aggravated assault
at docket number CP-61-CR-0000430-2016 (hereinafter “Docket 430-
2016”).1 In exchange for Appellant’s plea, the Commonwealth agreed to:
1) nolle pros all remaining counts at the docket number, and 2) recommend
that Appellant’s sentence run concurrent with the sentence Appellant would
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1 18 Pa.C.S.A. § 2702(a)(4).
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* Retired Senior Judge assigned to the Superior Court.
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receive at docket number CP-61-CR-0000338-2016 (hereinafter “Docket
338-2016”).2 N.T. Guilty Plea Hearing, 1/23/17, at 5-6.
During the guilty plea hearing, Appellant admitted that the factual
basis for his aggravated assault conviction was as follows: “on [March 25,
2016, Appellant] did strike [the Victim] with some form of an implement,
namely what was alleged to be brass knuckles, and as a result, [the Victim]
suffered a [non-displaced] fracture of his jaw.” Id. at 13. The trial court
accepted Appellant’s guilty plea and scheduled sentencing for February 7,
2017. Id. at 21.
Appellant appeared for sentencing on the scheduled date. As the trial
court explained:
Given the nature of [Appellant’s] offenses, a pre-sentence
investigation (“PSI”) [report] was prepared [after
Appellant’s guilty plea hearing]. Using this PSI, the [trial]
court calculated [Appellant’s] prior record score (“PRS”) to
be of the repeat felony 1 and felony 2 (“RFEL”) category.
[Prior to receiving the PSI], [] counsel for the
Commonwealth and both of [Appellant’s] defense attorneys
[incorrectly believed] that [Appellant’s] PRS would be a five.
The [trial] court, again on the record, walked through the
convictions which would lead to an RFEL classification, with
which all attorneys agreed.
Given the confusion surrounding the PRS, and that
[Appellant] had apparently relie[d] upon the PRS in deciding
whether or not to accept the plea offer, [Appellant’s
attorney] understandably expressed some trepidation as to
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2 At Docket 338-2016, Appellant was convicted of criminal use of a
communication facility, in violation of 18 Pa.C.S.A. § 7512(a). See N.T.
Sentencing Hearing, 2/7/17, at 24.
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her client’s willingness to continue with the sentencing.
Accordingly, [the trial] court permitted the parties to have
discussions while the [trial] court proceeded with sentencing
another individual. The [trial] court, at that point, would
have permitted [Appellant] to withdraw his guilty plea
should he have elected to do so, or at least entertained a
motion to do so pending the Commonwealth’s response.
However, [Appellant], presented with this opportunity,
chose to proceed with sentencing. [The trial] court
sentenced [Appellant] to three [] to seven [years’]
incarceration at [Docket 338-2016] and [40] months to [ten
years’ incarceration] at [Docket 430-2016], [to] run
concurrently in accordance with the plea agreement, with
credit allowed for [306] days. The sentences complied with
the applicable guidelines given the offense gravity scores
and [Appellant’s] status as RFEL.
Trial Court Opinion, 4/5/17, at 1-2 (internal footnotes and some internal
capitalization omitted).
On February 15, 2017, Appellant filed a post-sentence motion and,
within the motion, Appellant requested that the trial court reconsider its
sentence “and to sentence him using the standard range for a [five] prior
record score.” Appellant’s Post-Sentence Motion, 2/15/17, at 2. As
Appellant claimed:
[Appellant’s] counsel . . . and the prosecutors on each of his
criminal cases incorrectly determined [Appellant’s] prior
record score as a five []; however, at the time of
sentencing, the [trial] court determined that [Appellant’s]
prior record score [was] RFEL.
The offense gravity score of the crime of aggravated assault
with a deadly weapon [] is an [eight] and [Appellant] was
under the impression that with a prior record score of a
[five], his standard range [sentence] was 27 to 33 months;
however with a prior record score of RFEL, the standard
range for a crime with an offense gravity score of [eight] is
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40 to 52 months and that is a [seven] month difference
between the top of the original anticipated standard range
to the bottom of the standard range used by the [trial]
court at sentencing.
[Appellant’s belief that his prior record score was five was]
based off of the Pennsylvania RAP sheet provided by the
Commonwealth in discovery; furthermore, in plea
negotiations, the prosecutor . . . had determined the prior
record score to be a [five].
[However, Appellant had a felony] burglary on his record
that did not appear on his RAP sheet[, as Appellant was a
juvenile when he committed the burglary,] . . . and that is
what brought [Appellant] to the RFEL level. . . .
Despite the fact that [the] prior record score is not
specifically in a plea negotiation, [Appellant’s] counsel used
the standard range for a prior record score of a [five] to
negotiate with the prosecutor (who agreed at the time that
it was a [five]) and to help [Appellant] make an informed
decision regarding whether to accept a plea or to assert his
constitutional right to have a trial by jury using his valid
self-defense claim.
[Appellant] did not make an informed decision when
determining that he would take a plea because he was not
given the appropriate information regarding his potential
sentencing range.
[Appellant] is asking the court to reconsider his sentence
and to sentence him using the standard range for a [five]
prior record score and an offense gravity score of [eight],
which would be a range of 27 to 33 months of incarceration
for the minimum sentence; [Appellant] asks for this
reconsideration based on the fact that he did not have
accurate information regarding his prior record score when
making the decision to accept a plea and it should be
considered not to be a fully informed decision.
WHEREFORE, [Appellant] . . . respectfully requests [the trial
court] to reconsider [Appellant’s] sentence.
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Appellant’s Post-Sentence Motion, 2/15/17, at 1-2 (paragraph numbering
and some internal capitalization omitted).
The trial court denied Appellant’s post-sentence motion on February
16, 2017 and Appellant filed a timely notice of appeal. Appellant raises one
claim on appeal:3
The plea in this case was not entered knowingly,
intelligently or voluntarily, when the plea was entered based
on a negotiated prior record score that was not used during
the sentencing.
Appellant’s Brief at 2.
On appeal, Appellant claims that he should be permitted to withdraw
his plea because “he would not have entered his plea had he known that the
prior record score discussed at the time of the plea was incorrect.” Id. at 3.
This claim is waived, as Appellant never requested that the trial court permit
him to withdraw his plea. Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower
court are waived and cannot be raised for the first time on appeal”);
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3 On April 17, 2017, Allison D. Hartle, Esquire (hereinafter “Attorney
Hartle”), of the Venango County Office of the Public Defender, entered her
appearance for Appellant; on July 19, 2017, Attorney Hartle filed an
appellate brief on Appellant’s behalf. However, on August 21, 2017, the
Public Defender’s Office filed a petition to strike Attorney Hartle’s brief. See
Petition to Strike Brief, 8/21/17, at 1-4. We granted the Public Defender’s
petition on August 24, 2017 and, in so doing, struck Attorney Hartle’s brief
and granted Appellant 60 days to file a new brief. Order, 8/24/17, at 1.
On October 13, 2017, Tina M. Fryling, Esquire (hereinafter “Attorney
Fryling”), entered her appearance for Appellant; Attorney Fryling later filed
the appellate brief on behalf of Appellant. See Appellant’s Brief at 1-9.
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Commonwealth v. Tareila, 895 A.2d 1266, 1270 n.3 (“[i]n order to
preserve an issue related to the guilty plea, an appellant must either object
at the sentence colloquy or otherwise raise the issue at the sentencing
hearing or through a post-sentence motion”) (internal quotations, citations,
and corrections omitted); Commonwealth v. May, 402 A.2d 1008, 1009
n.3 (Pa. 1979) (where, in the trial court, appellant sought to withdraw his
guilty plea based upon the specific claim that appellant “did not fully
understand the significance of the sentence to be imposed,” appellant
waived, for appellate review, the claim that he was entitled to withdraw his
guilty plea because he “did not understand the felony murder rule and his
plea was[, therefore,] not [] knowingly entered”); see also Appellant’s Post-
Sentence Motion, 2/15/17, at 1-2 (“[Appellant] is asking the court to
reconsider his sentence and to sentence him using the standard range for
a [five] prior record score and an offense gravity score of [eight], which
would be a range of 27 to 33 months of incarceration for the minimum
sentence”) (emphasis added).
Further, even if the claim were not waived, the claim would fail on its
merits. We have summarized the applicable standard of review and
substantive rules regarding an order denying a post-sentence motion to
withdraw a guilty plea:
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 showing
of manifest injustice may be established if the plea was
entered into involuntarily, unknowingly, or unintelligently.
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...
Pennsylvania has constructed its guilty plea procedures in a
way designed to guarantee assurance that guilty pleas are
voluntarily and understandingly tendered. The entry of a
guilty plea is a protracted and comprehensive proceeding
wherein the [trial] court is obliged to make a specific
determination after extensive colloquy on the record that a
plea is voluntarily and understandingly tendered.
Rule 590 of the Pennsylvania Rules of Criminal Procedure
requires that a guilty plea be offered in open court, and
provides a procedure to determine whether the plea is
voluntarily, knowingly, and intelligently entered. As noted
in the Comment to Rule 590, at a minimum the trial court
should ask questions to elicit the following information:
(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?
Pa.R.Crim.P. 590, Comment.
This Court has further summarized:
In order for a guilty plea to be constitutionally valid, the
guilty plea colloquy must affirmatively show that the
defendant understood what the plea connoted and its
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consequences. This determination is to be made by
examining the totality of the circumstances surrounding
the entry of the plea. Thus, even though there is an
omission or defect in the guilty plea colloquy, a plea of
guilty will not be deemed invalid if the circumstances
surrounding the entry of the plea disclose that the
defendant had a full understanding of the nature and
consequences of his plea and that he knowingly and
voluntarily decided to enter the plea.
Finally, we apply the following when addressing an appellate
challenge to the validity of a guilty plea:
Our law presumes that a defendant who enters a guilty
plea was aware of what he was doing. He bears the
burden of proving otherwise.
The longstanding rule of Pennsylvania law is that a
defendant may not challenge his guilty plea by asserting
that he lied while under oath, even if he avers that
counsel induced the lies. A person who elects to plead
guilty is bound by the statements he makes in open
court while under oath and may not later assert grounds
for withdrawing the plea which contradict the statements
he made at his plea colloquy.
A defendant who elects to plead guilty has a duty to
answer questions truthfully. We [cannot] permit a
defendant to postpone the final disposition of his case by
lying to the court and later alleging that his lies were
induced by the prompting of counsel.
Commonwealth v. Yeomans, 24 A.3d 1044, 1046-1047 (Pa. Super. 2011)
(internal corrections and footnotes omitted) (some internal citations and
quotations omitted).
Appellant claims that he is entitled to withdraw his plea because,
during the plea negotiations, he was under the impression that his prior
record score was a five (and not RFEL). However, Appellant’s prior record
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score was not a part of Appellant’s plea deal with the Commonwealth and,
prior to sentencing, the trial court specifically informed Appellant that his
prior record score was RFEL – and not five. N.T. Guilty Plea Hearing,
1/23/17, at 5-6; N.T. Sentencing Hearing, 2/7/14, at 14. Further, after the
trial court informed Appellant that his prior record score was RFEL – and
that, as a result, the guideline sentencing ranges were greater than what
Appellant had originally believed – the trial court gave Appellant time to
speak with his attorney and decide whether to go forward with sentencing.
N.T. Sentencing Hearing, 2/7/14, at 16-18. Appellant chose to go forward
with sentencing, knowing full well that his prior record score was RFEL (and
not five). Id. at 18. Appellant cannot now complain that he should have
been permitted to withdraw his plea when he never asked to withdraw his
plea and, after being informed of his correct prior record score, he
voluntarily, knowingly, and intelligently chose to proceed with sentencing.
Thus, even if Appellant’s claim were not waived, the claim fails on its
merits.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/26/2018
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