Com. v. Brown, T.

J-S20043-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

TODD ALAN BROWN :

:

Appellant : No. 1568 MDA 2023

Appeal from the Judgment of Sentence Entered July 10, 2023

In the Court of Common Pleas of Huntingdon County Criminal Division at

No(s): CP-31-CR-0000305-2022

BEFORE: OLSON, J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: JULY 17, 2024

Todd Alan Brown appeals from the July 10, 2023 judgment of sentence

of 2 to 4 years’ imprisonment imposed after he entered a negotiated guilty

plea to one count of possession with intent to deliver a controlled substance 1

(“PWID”), to be run consecutive to the sentence he is currently serving. After

careful review, we affirm the judgment of sentence.

The relevant facts and procedural history of this case, as gleaned from

the trial court opinion, are as follows:

On July 10, 2023, just before jury selection for trial

was to begin, [Appellant] pleaded guilty to one count

of [PWID], graded as an ungraded felony. The

substance in question was methamphetamine. His

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* Former Justice specially assigned to the Superior Court.

1 35 P.S. §§ 780-113(a)(30).

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plea was pursuant to a negotiated plea agreement

with the Commonwealth, the terms of which were: (i)

[Appellant] would plead guilty to one count of PWID;

(ii) the remaining five charges in this matter would be

dismissed; (iii) the sentence imposed was capped at

2-4 years’ incarceration; and (iv) the determination of

whether the sentence would be consecutive to, or

concurrent with, the sentence that [Appellant] was

already serving in a separate matter would be left to

the discretion of the Court.

[Appellant] waived a presentence investigation and

requested to be sentenced that same day. His

counsel, Matthew Dombrosky, Esq., presented many

mitigating factors for the Court’s consideration,

including that during [Appellant’s] then current term

of incarceration, he had received no misconducts, he

was receiving psychiatric counseling and treatment,

he had begun taking medication to address [h]is

mental health issues, he has attained what he

believed to be mental health stability, and he was

eagerly waiting the opportunity to start rehabilitation

programs that would become available to him once

the instant case was resolved. Attorney Dombrosky

acknowledged that the convictions for which

[Appellant] was then serving a sentence were of a

serious nature, involving violence against law

enforcement officers, but argues that his actions in

regard to that case and his conduct since beginning

his sentences on those charges showed that he has

taken responsibility for those actions. Attorney

Dombrosky also noted that the crimes that gave rise

to the other convictions and the conviction in the

instant case all occurred during a difficult period in

[Appellant’s] life.

When given the opportunity to speak on his own

behalf, [Appellant] echoed Attorney Dombrosky’s

arguments….

After hearing argument from the Commonwealth, the

Court sentenced [Appellant] to 2-4 years’

incarceration [consistent with the plea agreement.]

Noting its agreement with the Commonwealth that the

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agreed-on sentence represented a significant break in

relation to the sentences that [Appellant] would likely

receive if convicted at trial, the Court imposed the

sentence consecutive to [Appellant’s] then current

sentences.

Trial court opinion, 12/6/23 at 1-3 (citations and footnote omitted).

On July 20, 2023, Appellant filed a timely post-sentence motion for

reconsideration of his sentence. On September 7, 2023, the trial court

conducted an evidentiary hearing on Appellant’s motion. Following the

hearing, the trial court denied Appellant’s motion on September 8, 2023. This

timely appeal followed on October 6, 2023. The trial court did not order

Appellant to file a concise statement of matters complained of on appeal, in

accordance with Pa.R.A.P. 1925(b). The trial court issued a Rule 1925(a)

opinion, however, addressing the claim Appellant raised in his post-sentence

motion, on December 6, 2023.2

On appeal, Appellant raises the following issue for our review:

1. Whether the trial court erred/abused its

discretion in sentencing [Appellant] without

fully considering rehabilitative needs and

mitigating evidence as set forth in 42 Pa.C.S.A.

[§] 9721(b), resulting in an excessive sentence?

Appellant’s brief at 5.

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2 On April 23, 2024, Appellant filed a pro se application for relief while still

represented by Attorney Dombrosky, requesting the appointment of new

counsel. This Court denied Appellant’s application as untimely on April 29,

2024.

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“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.” Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super.

2014) (citation omitted), appeal denied, 117 A.3d 297 (Pa. 2015). 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. Bullock, 170 A.3d 1109, 1123 (Pa.Super. 2017) (citation

omitted), appeal denied, 184 A.3d 944 (Pa. 2018).

Appellant’s claim is a challenge to the discretionary aspects of his

sentence. Preliminarily, we note that we need not consider the merits of this

appeal, because Appellant is prohibited from challenging the discretionary

aspects of his sentence on account of his negotiated guilty plea. “Generally,

a plea of guilty amounts to a waiver of all defects and defenses except those

concerning the jurisdiction of the court, the legality of the sentence, and the

validity of the guilty plea.” Commonwealth v. Morrison, 173 A.3d 286, 290

(Pa.Super. 2017) (citation omitted).

It is well settled when the plea agreement contains a

negotiated sentence which is accepted and imposed

by the sentencing court, there is no authority to

permit a challenge to the discretionary aspects of that

sentence. If either party to a negotiated plea

agreement believed the other side could, at any time

following entry of sentence, approach the judge and

have the sentence unilaterally altered, neither the

Commonwealth nor any defendant would be willing to

enter into such an agreement. Permitting a

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discretionary appeal following the entry of a

negotiated plea would undermine the designs and

goals of plea bargaining, and would make a sham of

the negotiated plea process.

Id.

Instantly, our review of the record confirms that Appellant negotiated

the terms of his guilty plea, including the specific duration of the sentence

with which he now takes issue. At the July 10, 2023 guilty plea hearing, the

Commonwealth remarked that it was “giving [Appellant] a break to only be

seeking a plea on one count [of PWID]” and that it was “going to recommend

a two-year to four-year sentence.” Notes of testimony, 7/10/23 at 1.

Thereafter, Appellant indicated that he understood his guilty plea and did not

have any questions about it. Id. at 3-5. The record further reflects that prior

to entering the plea, Appellant reviewed the written guilty plea colloquy with

Attorney Dombrosky. Id.; see also Guilty Plea Colloquy, 7/10/23 at ¶¶ 1-

45. Additionally, during the sentencing phase of the hearing, the trial court

stated: “I think this agreement is a really good one for you. I commend your

attorney for somehow convincing [the Commonwealth] to get rid of one of

these counts. Realistically, you’re looking at four to eight years but for the

work of [Attorney] Dombrosky.” Notes of testimony, 7/10/23 at 6. After

accepting the plea, the trial court sentenced Appellant to the agreed-upon

sentence. Id. Appellant did not challenge the validity of his plea or move to

withdraw his plea. Thus, Appellant received the sentence for which he

bargained.

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Accordingly, Appellant waived any challenge to the discretionary aspects

of his sentence and his challenge is not cognizable on appeal.

Commonwealth v. Lincoln, 72 A.3d 606, 609-610 (Pa.Super. 2013),

appeal denied, 87 A.3d 319 (Pa. 2014); see also Commonwealth v.

Eisenberg, 98 A.3d 1268, 1276 (Pa. 2014) (“When a negotiated plea includes

sentencing terms[,] the defendant’s knowing and voluntary acceptance of

those terms rightly extinguishes the ability to challenge a sentence the

defendant knew was a proper consequence of his plea.”); Commonwealth v.

O’Malley, 957 A.2d 1265, 1267 (Pa.Super. 2008) (“One who pleads guilty

and receives a negotiated sentence may not then seek discretionary review of

that sentence.”).3

Judgment of sentence affirmed.

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3 In reaching this decision, we note that this Court has consistently recognized

that “claims premised on imposition of consecutive sentences do not raise a

substantial question for our review.” Commonwealth v. Radecki, 180 A.3d

441, 468 (Pa.Super. 2018). “A court’s exercise of discretion in imposing a

sentence concurrently or consecutively does not ordinarily raise a substantial

question[.]” Commonwealth v. Caldwell, 117 A.3d 763, 769 (Pa.Super.

2015) (en banc), appeal denied, 126 A.3d 1282 (Pa. 2015). Accordingly,

even if Appellant’s discretionary sentencing claim was cognizable on appeal,

it would still fail.

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J-S20043-24

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 07/17/2024

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