J-S53026-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JULIO ANGEL BERNARD
Appellant No. 2487 EDA 2016
Appeal from the Judgment of Sentence June 30, 2016
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0001274-2016
CP-39-CR-0001275-2016
CP-39-CR-0001276-2016
BEFORE: BENDER, P.J.E., OLSON, J. and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 11, 2017
Appellant, Julio Angel Bernard, appeals from the judgment of sentence
entered on June 30, 2016, as made final by the denial of his post-sentence
motion on July 12, 2016, following his guilty pleas to the charges of escape,
fleeing or attempting to elude police officer, and resisting arrest.1 We deny
Appellant’s petition for permission to appeal the discretionary aspects of his
sentence.2
The trial court summarized the facts of this case as follows:
____________________________________________
1
18 Pa.C.S.A. § 5121, 75 Pa.C.S.A. § 3733, and 18 Pa.C.S.A. § 5104,
respectively.
2
“The right to appellate review of the discretionary aspects of a sentence is
not absolute, and must be considered a petition for permission to appeal.”
Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014).
J-S53026-17
On June 9, 2015, while an inmate and incarcerated in the Lehigh
County Community Corrections Center, located in Lehigh County,
Pennsylvania [] Appellant failed to return to the Corrections
Center after being authorized for a two-hour leave from the
center to pick up his personal property.
On February 21, 2016, Officer Kenneth Stevens of the Whitehall
Township Police Department was in the parking lot of the
WalMart, located on MacArthur Road, Whitehall, Lehigh County,
Pennsylvania. At that time, he spoke with a driver of a Chrysler
minivan that was parked in the fire lane at WalMart. The van
was driven by [] Appellant. [] Appellant moved his vehicle and
started to drive away. The officer observed [] Appellant’s
vehicle operating at an unsafe speed through the parking lot and
leave the lot quickly.
Officer Stevens followed the vehicle as it headed towards
MacArthur Road. As the same vehicle approached Sutler Drive
and MacArthur Road, it encountered a red light. Officer Stevens
observed the vehicle proceed without hesitation through the
steady red light and watched as it turned left onto southbound
MacArthur Road. The officer activated his emergency lights and
sirens and attempted to stop the vehicle. The minivan did not
stop and continued southbound on MacArthur Road at a high
rate of speed.
The officer observed his own speedometer, which indicated that
he and the vehicle he was following were traveling in excess of
80 miles [per] hour. The vehicle failed to stop at two more red
lights. At the intersection of Mickley Road and North Sixth
Street, Officer Stevens terminated his pursuit because []
Appellant had left the officer’s jurisdiction and had entered the
City of Allentown.
As the vehicle entered the City of Allentown, Officer Brian Best of
the Allentown Police Department noticed a light-colored blue
minivan traveling southbound while being pursued by a marked
Whitehall Police vehicle. Officer Best also heard communication
from the county radio regarding the pursuit by Whitehall police
of a Hispanic male driver. The officer followed the Whitehall
Police vehicle and trailed the light colored van, observing the
vehicle as [it] proceeded through a stoplight at Seventh and
Greenleaf streets. The vehicle continued on Greenleaf Street
-2-
J-S53026-17
until it went in the wrong direction on Eighth Street, then
westbound on Cedar Street, nearly striking several pedestrians.
Officer Best lost sight of the blue van near the 1000 block of
Cedar Street. Officer Zachary Bubnis of the Allentown Police
Department located the van near the 300-block of Fourteenth
Street and noticed a Hispanic male driver and a female walk into
320 North Fourteenth Street, Apartment 1, Allentown, Lehigh
County, Pennsylvania. The communication center advised the
officers that the male driver, later identified as [] Appellant, had
an active warrant for his arrest. Officers made contact with the
tenants in the apartment. The tenants stated that [] Appellant
was not inside but offered [to allow] the officers to check. The
officers were able to locate [] Appellant under a bed near the
kitchen area. They advised [] Appellant to show his hands.
When [] Appellant got up from under the bed, he clenched both
fists together. Again he was advised to show his hands, but []
Appellant refused to comply. A struggle ensued. During the
struggle, [] Appellant tried to grab one of the officer’s service
weapons. After several minutes, officers were able to place []
Appellant into custody.
Trial Court Opinion, 9/20/2016, at 3-5.
On June 30, 2016, Appellant pled guilty to the three aforementioned
charges. In exchange, the Commonwealth agreed to the imposition of
standard range consecutive sentences on two of the convictions, with the
final sentence running concurrently to the others. The trial court accepted
the agreement and imposed sentences of one to two years of incarceration
for escape, one to two years of imprisonment for fleeing or attempting to
elude police (to run consecutively to escape), and six months to two years’
incarceration for resisting arrest to run concurrently to the other two
convictions. In sum, the trial court sentenced Appellant to an aggregate
term of two to four years’ imprisonment.
-3-
J-S53026-17
On July 8, 2016, Appellant filed a motion for reconsideration of his
sentence arguing that, although the trial court imposed a legal sentence
within the standard guideline range, he was entitled to a reduction of his
sentence to allow him to serve it in a county correctional facility or
treatment center, rather than in state prison. Appellant also averred that
the trial court failed to consider his remorse and erroneously relied upon his
prior record score, which consisted of remote and non-violent offenses. The
trial court denied relief on July 12, 2016. This timely appeal resulted. 3
On appeal, Appellant presents the following issues for our review:
1. Whether [the trial c]ourt erred in imposing a harsh and
excessive sentence and failed to impose a [c]ounty-served
sentence rather than a [s]tate-served sentence. [Appellant]
believes he was guaranteed a [c]ounty[-]served sentence as
part of, or as an expectation of, his plea agreement, and that
the [trial] court abused its discretion by failing to give that
sentence.
2. Whether the sentence, as imposed, was harsh and excessive
[and] the [trial] court failed to set forth appropriate reasons
for the length and nature of the sentence.
Appellant’s Brief at 6.
____________________________________________
3
Appellant filed a notice of appeal on August 9, 2016, within 30 days of the
denial of his motion for reconsideration. See Pa.R.Crim.P 720(a)(2)(a); see
also Pa.R.A.P. 903(a). On August 16, 2016, the trial court issued an order
directing Appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied on September 6,
2016. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
September 20, 2016.
-4-
J-S53026-17
Appellant contends that his “sentence was excessively and unduly
harsh given [his] long-standing addiction,” and that county prison facilities
are better suited at dealing with his addiction. Id. at 9, 12-13. He avers
that the trial court failed to place its reasons on the record for the imposition
of his state prison sentence. Id. at 12. Appellant also implicitly challenges
the imposition of consecutive sentences. Id.
Initially we note that Appellant concedes that “the court sentenced
within the sentencing guidelines under a negotiated guilty plea which
bound the court to do so[.]” Id. at 5 (emphasis added); see also id. at 9
(“[T]he sentencing court sentenced [] [A]ppellant within the guidelines and
in conformity with the negotiated plea agreement[.]”). “[A] guilty plea which
includes sentence negotiation ordinarily precludes a defendant from
contesting the validity of his or her sentence other than to argue that the
sentence is illegal or that the sentencing court did not have jurisdiction[.]”
Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa. Super. 2005)
(emphasis in original; citations omitted); see also Commonwealth v.
Dalberto, 648 A.2d 16, 21 (Pa. Super. 1994) (“[I]n a ‘negotiated’ plea
agreement, where a sentence of specific duration has been made part of a
plea bargain, it would clearly make a sham of the negotiated plea process
for courts to allow defendants to later challenge their sentence; this would,
in effect, give defendants a second bite at the sentencing process.”). Here,
all of the terms of Appellant’s negotiated plea agreement were set forth on
the record prior to the trial court accepting the plea. See Trial Court
-5-
J-S53026-17
Opinion, 9/20/2016, at 8, citing N.T., 6/30/2016, at 2-4. The trial court set
forth the standard guidelines for each offense prior to accepting Appellant’s
guilty plea. Appellant then agreed to standard range consecutive sentences
for escape and fleeing or attempting to elude police officer, with a standard
range sentence for resisting arrest to be served concurrently to the other
two convictions. Appellant agreed, on the record, that there were no other
promises made to him about sentencing other than those included in the
negotiated agreement. Because the terms of Appellant’s plea agreement
were negotiated, he is now precluded from challenging the discretionary
aspects of his sentence.
Appellant also claims “the [sentencing] guidelines themselves were
based on prior convictions all related to [Appellant’s] addiction and most of
which are of significant age thus creating guidelines that overrepresented
[Appellant’s] criminal proclivity.” Appellant’s Brief at 5. However, prior to
accepting the plea, the Commonwealth set forth the grades of each of the
enumerated felonies, the offense gravity scores, the standard ranges for
each of the sentences, and Appellant’s prior record score of five. N.T.,
6/30/2016, at 2-4. Appellant did not object to the use of “five” as his prior
record score in calculating the sentencing guidelines. “The absence of a
contemporaneous objection below constitutes a waiver of appellant's current
claim.” Commonwealth v. Powell, 956 A.2d 406, 428, (Pa. 2008), citing
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”). Moreover, Appellant did not
-6-
J-S53026-17
raise this claim in his post-sentence motion as required to preserve a
discretionary aspect of sentencing issue. See Commonwealth v. Zirkle,
107 A.3d 127, 132 (Pa. Super. 2014) (an appellant must demonstrate that
the issue was properly preserved at sentencing or in a motion to reconsider
to invoke this Court's jurisdiction when challenging the discretionary aspects
of a sentence). Further, Appellant failed to challenge the computation of his
prior record score in his Rule 1925(b) concise statement of errors
complained of on appeal. Failure to raise issues specifically in a Rule
1925(b) concise statement also results in waiver. See Commonwealth v.
Melvin, 103 A.3d 1, 39 (Pa. Super. 2014). Thus, we conclude that
Appellant failed to challenge the computation of his prior record score before
the trial court and he cannot do so for the first time on appeal. Accordingly,
Appellant waived his claim that the trial court failed to use his proper prior
record score in applying the sentencing guidelines.
Because Appellant entered a negotiated guilty plea, which
contemplated bargained-for sentences, he cannot challenge the trial court’s
discretion in imposing those sentences. Moreover, Appellant waived his
current challenge to the computation of his prior record score. Hence, we
deny Appellant’s petition for permission to appeal.
Petition for permission to appeal denied. Judgment of sentence
affirmed.
-7-
J-S53026-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/11/2017
-8-