Com. v. Brown, P.

J. S44011/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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).

J. S44011/16

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

-2-

J. S44011/16

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).

-3-

J. S44011/16

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.

-4-

J. S44011/16

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.)

-5-

J. S44011/16

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

-6-

J. S44011/16

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

-7-

J. S44011/16

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.

-8-

J. S44011/16

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.

-9-

J. S44011/16

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/11/2016

- 10 -