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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
PAUL BROWN, : No. 3104 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, August 18, 2015,
in the Court of Common Pleas of Lehigh County
Criminal Division at No. CP-39-CR-0000363-2015
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 11, 2016
Paul Brown appeals from the August 18, 2015 judgment of sentence
entered by the Lehigh County Court of Common Pleas as the result of his
conviction of criminal use of a communications facility.1 We affirm.
The trial court provided the following factual and procedural history:
On [August 27, 2015, appellant] filed Post
Sentence Motions in the form of a Motion for
Reconsideration of Sentence and a Motion to
Withdraw Guilty Plea. The relevant facts are as
follows: On July 8, 2015, [appellant] entered a plea
of guilty to one (1) count of Criminal Use of a
Communications Facility. Pursuant to the negotiated
plea agreement, the minimum sentence was not to
exceed the standard range of the sentencing
guidelines and there was no opposition to a County
Sentence. A Pre-Sentence Investigation report was
ordered. On August 18, 2015, [appellant] was
sentenced to an aggregate term of imprisonment of
1
18 Pa.C.S.A. § 7512(a).
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not less than one and [one] half (1½) years nor
more than five (5) years in a state correctional
facility. Thereafter, on August 27, 2015, [appellant]
filed the within Post Sentence Motions pursuant to
Pennsylvania Rule of Criminal Procedure Rule 720. A
hearing was conducted on [appellant’s] motion on
September 15, 2015.
Trial court opinion, 11/16/15 at 1-2.
The trial court denied appellant’s motion on September 16, 2015. On
October 15, 2015, appellant filed a timely notice of appeal. The trial court
ordered appellant to produce a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b) on October 19, 2015, and appellant
complied on November 9, 2015. On November 16, 2015, the trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a).
Appellant raises the following issues for our review:
1. Did the lower court err and abuse its discretion
when it denied [appellant’s] motion to
withdraw his guilty plea?
2. Did the lower court err and abuse its discretion
when it denied [appellant’s] motion to
reconsider sentence?
Appellant’s brief at 6.
When considering post-sentence motions for the withdrawal of a guilty
plea, we are held to the following standard:
“[P]ost-sentence motions for withdrawal are subject
to higher scrutiny since courts strive to discourage
entry of guilty pleas as sentence-testing devices.”
[Commonwealth v. Flick, 802 A.2d 620, 623
(Pa.Super. 2002).] A defendant must demonstrate
that manifest injustice would result if the court were
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to deny his post-sentence motion to withdraw a
guilty plea. Id., citing Commonwealth v. Gunter,
565 Pa. 79, 771 A.2d 767 (2001); [Commonwealth
v. Kirsch, 930 A.2d 1282, 1284 (Pa.Super. 2007)].
“Manifest injustice may be established if the plea was
not tendered knowingly, intelligently, and
voluntarily.” Commonwealth v. Hodges, 789 A.2d
764, 765 (Pa.Super. 2002), citing Commonwealth
v. Persinger, 532 Pa. 317, 615 A.2d 1305 (1992).
In determining whether a plea is valid, the court
must examine the totality of circumstances
surrounding the plea. Commonwealth v.
Flanagan, 578 Pa. 587, 854 A.2d 489, 500 (2004).
A deficient plea does not per se establish prejudice
on the order of manifest injustice. Commonwealth
v. Carter, 540 Pa. 135, 656 A.2d 463 (1995);
Commonwealth v. Yager, 454 Pa.Super. 428, 685
A.2d 1000 (1996), appeal denied, 549 Pa. 716,
701 A.2d 577 (1997).
Commonwealth v. Broaden, 980 A.2d 124, 129 (Pa.Super. 2009), appeal
denied, 992 A.2d 885 (Pa. 2010).
As discussed above, to establish manifest injustice,
Appellant must show that his plea was entered in an
involuntary, unknowing, or unintelligent manner.
[Commonwealth v. Stork, 737 A.2d 789, 790
(Pa.Super. 1999).] To ascertain whether Appellant
acted in such manner, we must examine the guilty
plea colloquy. The colloquy must inquire into the
following areas: “(1) the nature of the charges;
(2) the factual basis of the plea; (3) the right to trial
by jury; (4) the presumption of innocence; (5) the
permissible range of sentences; and (6) the judge’s
authority to depart from any recommended
sentence.” Commonwealth v. Burkholder, 719
A.2d 346, 349 n. 5 (Pa.Super. 1998) (citation
omitted). This Court evaluates the adequacy of the
guilty plea colloquy and the voluntariness of the
resulting plea by examining the totality of the
circumstances surrounding the entry of that plea.
Commonwealth v. Lewis, 708 A.2d 497, 501
(Pa.Super. 1998).
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Commonwealth v. Muhammad, 794 A.2d 378, 383-384 (Pa.Super. 2002).
The law does not require that an appellant be
pleased with the results of the decision to enter a
guilty plea; rather “[a]ll that is required is that
[appellant’s] decision to plead guilty be knowingly,
voluntarily and intelligently made.”
Commonwealth v. Moser, 921 A.2d 526, 528-29
(Pa.Super. 2007).
A defendant is bound by the statements made during
the plea colloquy, and a defendant may not later
offer reasons for withdrawing the plea that contradict
statements made when he pled. Commonwealth
v. McCauley, 797 A.2d 920, 922 (Pa.Super. 2001).
Commonwealth v. Brown, 48 A.3d 1275, 1277-1278 (Pa.Super. 2012),
appeal denied, 63 A.3d 773 (Pa. 2013).
Appellant avers that he never understood the nature of the plea
agreement. (Appellant’s brief at 11.) This allegation is belied by the record.
During the guilty plea hearing, the following facts were read into the record
and acknowledged by appellant:
THE COURT: All right. I’ll hear the facts.
[THE COMMONWEALTH]: Your Honor, between the
month of October 1st and October 31st of last year,
2014, Agents with the Office of the Attorney General
obtained Orders from the Superior Court to intercept
the telephone lines of Luis Oquendo, Jose Santana,
and a Juhad Keyes.
A number subscribed to Mr. Brown appeared on
Mr. Oquendo’s line and conversations were
intercepted by those Agents between Mr. Oquendo
and Mr. Brown that the Agents interpreted as
relating to the delivery of cocaine.
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Those conversations -- excuse me -- those intercepts
were, I would say, approximately four to five during
the course of the month.
THE COURT: Is that what you did?
[APPELLANT]: Yes, ma’am.
THE COURT: You used the telephone to commit
crime.
[APPELLANT]: Yes, ma’am. I was, um, at the
present time I wasn’t here in Pennsylvania. I was in
North Carolina. And, um, an associate that I
knew called me asking me for some drugs and I
referred him to somebody else, so, yes, ma’am.
Notes of testimony, guilty plea, 7/8/15 at 6-7 (emphasis added).2
At his sentencing hearing, appellant avers that his acceptance of the
guilty plea was the result of a “misunderstanding,” and that the plea had
“nothing to do with the sale, distribution of cocaine.” (Appellant’s brief at
12; notes of testimony, sentencing, 8/18/15 at 6-7.) After consultation with
defense counsel during a court recess, appellant later acknowledged
“plead[ing] out [] referring to a phone call that [he] made for someone else
. . .” (Id. at 9.)
Because appellant is bound by the statements he made during the
guilty plea colloquy, we, therefore, find that the record supports the
conclusion that appellant’s guilty plea was knowing, intelligent, and
2
During the guilty plea hearing, appellant, when asked by the trial court if
he had any questions regarding his rights or the charge against him,
answered, “No, ma’am. I understand my wrongdoing and I’m just here to
own up to it.” (Notes of testimony, 7/8/15 at 6-7.)
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voluntary, and as a result, a manifest injustice did not occur in this case.
Accordingly, we find that appellant’s first issue has no merit.
In appellant’s second issue for our review, appellant requests that we
review his sentence imposed by the trial court.
[T]he proper standard of review when considering
whether to affirm the sentencing court’s
determination is an abuse of discretion. . . . [A]n
abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not have
abused its discretion unless the record discloses that
the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice,
bias or ill-will. In more expansive terms, our Court
recently offered: An abuse of discretion may not be
found merely because an appellate court might have
reached a different conclusion, but requires a result
of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so
as to be clearly erroneous.
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate
review is that the sentencing court is in the best
position to determine the proper penalty for a
particular offense based upon an evaluation of the
individual circumstances before it.
Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)
(citation omitted).
Challenges to the discretionary aspects of sentencing
do not entitle an appellant to review as of right.
Commonwealth v. Sierra, [752 A.2d 910, 912
(Pa.Super. 2000)]. An appellant challenging the
discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to
determine: (1) whether appellant has
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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, 42 Pa.C.S.A.
§ 9781(b).
Moury, 992 A.2d at 170 (citation omitted).
Here, we begin our analysis by determining whether appellant has
complied with the procedural requirements of challenging his sentence.
First, appellant timely filed his notice of appeal pursuant to Pa.R.A.P. 902
and 903. Second, he properly preserved the issue in a motion to reconsider
sentence which was filed on August 27, 2015. The sentencing court denied
appellant’s motion on September 16, 2015.
Third, appellant included a Rule 2119(f) statement in his brief, in
which he avers that “the lower court abused its discretion when it imposed
an excessive sentence of eighteen months[]. An eighteen (18) month
sentence is the top of the standard sentencing guidelines.” (Appellant’s brief
at 3.) In his Rule 2119(f) statement, appellant relies on Commonwealth v.
Monahan, 860 A.2d 180 (Pa.Super. 2004), when he states that the
sentencing court gave insufficient reasons for sentencing appellant to the
high end of the standard guidelines range. Monahan is inapposite here. In
Monahan, this court found that the sentencing court erred when it failed to
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provide sufficient reasons on the record for sentencing the defendant
in excess of the aggravated range of the guidelines. Id. at 182.
A substantial question is only raised on a sentence within the
guidelines when there are circumstances in which “the application of the
sentencing guidelines would be clearly unreasonable.” Commonwealth v.
Dodge, 77 A.3d 1263, 1270 (Pa.Super. 2013), appeal denied, 91 A.3d 161
(Pa. 2014), quoting 42 Pa.C.S.A. § 9781(c)(2).
In determining whether a substantial question exists,
this Court does not examine the merits of whether
the sentence is actually excessive. Commonwealth
v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).
Rather, we look to whether the appellant has
forwarded a plausible argument that the sentence,
when it is within the guideline ranges, is clearly
unreasonable. Concomitantly, the substantial
question determination does not require the court to
decide the merits of whether the sentence is clearly
unreasonable.
Dodge, 77 A.3d at 1270. Here, appellant alleges that the sentencing court
failed to consider his rehabilitative needs when crafting his sentence.
Appellant also alleges that the sentence imposed was excessive. We have
found that such a combination constitutes a substantial question.
Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa.Super. 2015)
(en banc), appeal denied, 126 A.3d 1282 (Pa. 2015), quoting
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.Super. 2014), appeal
denied, 105 A.3d 736 (Pa. 2014). We, therefore, find that appellant has
raised a substantial question, and will consider his appeal on its merits.
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Where the sentencing court had the benefit of a
presentence investigation report (“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. Devers, 519
Pa. 88, 101-02, 546 A.2d 12, 18 (1988). See also
Commonwealth v. Tirado, 870 A.2d 362, 368
(Pa.Super. 2005) (stating if sentencing court has
benefit of PSI, law expects court was aware of
relevant information regarding defendant’s character
and weighed those considerations along with any
mitigating factors). Further, where a sentence is
within the standard range of the guidelines,
Pennsylvania law views the sentence as appropriate
under the Sentencing Code. See Commonwealth
v. Cruz-Centeno, 447 Pa.Super. 98, 668 A.2d 536
(1995), appeal denied, 544 Pa. 653, 676 A.2d
1195 (1996) (stating combination of PSI and
standard range sentence, absent more, cannot be
considered excessive or unreasonable).
Moury, 992 A.2d at 171.
Here, the trial court indicated on the record that it received and
reviewed appellant’s PSI. (Notes of testimony, 8/18/15 at 2.) Because the
trial court reviewed appellant’s PSI, it is presumed that the trial court was
aware of appellant’s rehabilitative needs. The trial court then sentenced
appellant, pursuant to the plea agreement, to a term of 18-60 months’
incarceration, which appellant acknowledges is within the standard range of
the sentencing guidelines. We, therefore, find that the sentence imposed by
the trial court is appropriate under the Sentencing Code, and appellant’s
second issue is without merit.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/11/2016
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