Com. v. Marte, J.

Opinion

J-S56010-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

v.

JUNIOR OLEGARIO MARTE

Appellant No. 3061 EDA 2016

Appeal from the Judgment of Sentence July 28, 2016 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0003167-2015

BEFORE: BOWES, STABILE, AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.: FILED NOVEMBER 13, 2017

Junior Olegario Marte appeals from his July 28, 2016 judgment of

sentence of three to six years imprisonment in the aggregate, which was

imposed after he pled guilty to three counts of recklessly endangering

another person. After thorough review, we affirm.

The underlying facts were recited at the guilty plea hearing:

This incident occurred on June 23rd of last year. At around 5 p.m. Officer [Benjamin] Kocher responded to the area of South 12th Street and Vultee Street to assist Captain Bill Reinik with stopping a vehicle that had driven pas[t] barricades. This is in the area of the Merchants Square Mall[.] . . . There was a large sinkhole there at that time. Fire, police and some Allentown Police personnel had closed off the surrounding streets.

This defendant attempted to bypass the traffic that was backed up and bypass the barriers that were blocking off the streets . . . in order to . . . get through the area a little faster. He did this at a high rate of speed, and initially almost struck

* Retired Senior Judge specially assigned to the Superior Court. J-S56010-17

one of the fire police officers that was regulating traffic at that situation. That’s how Captain Reinik was alerted.

Captain Reinik then pursued the defendant who was traveling at a high rate of speed down that area to the Merchant Square Mall, at which point he exited his vehicle and [sic] was essentially at a driveway, had the defendant pinned in the driveway of the Merchant Square Mall.

At that time the defendant drove at him in an attempt to get out of the area almost striking Captain Reinik. He had to jump out of the way of the vehicle in order to do it. It’s sort of a narrow roadway there.

And as the defendant was leaving, he drove at a high rate of speed passing another fire officer that was regulating traffic.

Guilty Plea Hearing, 6/27/16, at 4-5.

Appellant pled guilty to three counts of recklessly endangering, 18

Pa.C.S. § 2705, graded as second-degree misdemeanors. In exchange, the

Commonwealth agreed not to pursue the charges of aggravated assault,

fleeing and eluding police, or the traffic offenses. The court conducted a

thorough oral colloquy advising Appellant that each of the offenses could

carry with it two years in jail. Appellant acknowledged that he also

completed a written colloquy, and that he read and understood that

document. Appellant represented further that he was not forced to take the

plea, no threats or promises were made, and that he was satisfied with

counsel. Appellant admitted that his reckless actions placed people in

danger.

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The court accepted the plea and ordered a pre-sentence investigation

(“PSI”). At the conclusion of the guilty plea hearing, the defense provided

two documents, one of which was identified as an evaluation performed by

Robert Gordon, a psychologist, that purportedly provided insight into

Appellant’s background.

On July 29, 2016, the court sentenced Appellant to one to two years

imprisonment on each count of recklessly endangering, all sentences to run

consecutively. Appellant filed a timely post-sentence motion seeking to

withdraw his guilty plea and reconsideration of his sentence. Following a

hearing, the court denied the motion.

Appellant was appointed new counsel, who timely filed an appeal on

Appellant’s behalf and a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. The trial court authored its Rule 1925(a) opinion,

and the matter is ripe for our review. Appellant presents two questions for

our considertion:

A. Whether the lower court abused its discretion in imposing manifestly excessive and unreasonable sentences which were at the statutory maximum limit and all imposed consecutively when the court failed to consider any significant mitigating factors, failed to apply and review all the necessary factors as set forth in 42 Pa.C.S.A. § 9721(b) and 42 Pa.C.S.A. §9781(c) and (d) or otherwise failed to set forth appropriate reasons for its decision that the maximum sentences were the only appropriate sentences?

B. Did the lower court err by denying the Defendant’s request to withdraw his guilty plea, post-sentence, as the Defendant’s

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plea was not entered knowingly or voluntarily or that the Defendant was innocent of the charge?

Appellant’s brief at 8-9 (unnecessary capitalization omitted).

Appellant’s first contention is that the sentences imposed were

manifestly excessive. He contends that imposition of the statutory

maximum sentence, and running those sentences consecutively, was

contrary to fundamental norms of the sentencing guidelines and ignored

legitimate mitigating factors.

As Appellant acknowledges, he presents a challenge to the

discretionary aspects of his sentence, which is not appealable as a matter of

right. Commonwealth v. Austin, 66 A.3d 798, 807-08 (Pa.Super. 2013).

In order to pursue such a claim on appeal, an appellant either must have

preserved his discretionary sentencing claim at sentencing or by post-

sentence motion and in his Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. Secondly, he must have filed a timely appeal.

Third, his brief must include a concise statement pursuant to Pa.R.A.P.

2119(f) with respect to the discretionary aspects of his sentence, and finally,

that statement must raise a substantial question that the sentence is

inappropriate or violative of the sentencing code.

Appellant complied with all of the prerequisites for review. He filed a

timely post-sentence motion, preserved the claim in his Rule 1925(b)

statement, and filed a Pa.R.A.P. 2119(f) statement raising a substantial

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question i.e., that the court failed to consider the factors in 42 Pa.C.S. §

9721.1 See Commonwealth v. Dodge, 77 A.3d 1263 (Pa.Super. 2013)

(assertion that the court failed to consider § 9721 factors raises a

substantial question). Thus, we may review his claim.

Our standard of review of a discretionary sentencing claim is well-

settled:

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. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law,

____________________________________________

1 42 Pa.C.S. § 9721(b) provides general sentencing standards:

[T]he court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant. The court shall also consider any guidelines for sentencing and resentencing adopted by the Pennsylvania Commission on Sentencing and taking effect under section 2155 (relating to publication of guidelines for sentencing, resentencing and parole and recommitment ranges following revocation). In every case in which the court imposes a sentence for a felony or misdemeanor, modifies a sentence, resentences an offender following revocation of probation, county intermediate punishment or State intermediate punishment or resentences following remand, the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed.

42 Pa.C.S. § 9721.

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exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014).

Appellant contends first that the trial court focused only on the danger

faced by police and fire personnel to the exclusion of mitigating factors.

According to Appellant, the sentence was excessive and inconsistent with the

protection of the public, the gravity of the offense, and his rehabilitative

needs.

The record refutes Appellant’s contention. Appellant testified at his

sentencing. He expressed remorse for his conduct and told the court that he

had not intended to hurt anyone. The court noted that Appellant had fifteen

prior arrests and eleven convictions, some of which were for aggravated

assault, yet Appellant continued to place people in danger. Defense counsel

painted Appellant’s behavior as “a product of his environment growing up,”

and “some of the interrelationships he’s had with law enforcement officials

over the last several years.” N.T. Sentencing, 7/28/16, at 8. Reference was

made to the psychological report of Dr. Gordon supplied at the guilty plea

hearing. Counsel asked that the court follow up with mental health and

order a long period of supervision to ensure that Appellant stayed “on the

straight and narrow.” Id. at 10.

The sentencing court discussed Appellant’s historical disregard for

authority and for the safety of others. It referenced Appellant’s conduct

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when arrested, where he swung at an officer, spit at police officers, and

threatened to kill them. The court observed that probation had been

unsuccessful in the past in curtailing such behavior, as had county sentences

and paroles. Noting that Appellant was not eligible for the recidivism risk

reduction incentive program (“RRRI”), the court imposed sentences that

were within the standard guideline range.2 The trial court stated on the

record at sentencing that it had reviewed the PSI. See Commonwealth v.

Downing, 990 A.2d 788 (Pa.Super. 2010) (trial court informed by a pre-

sentence report is presumed to be aware of all appropriate sentencing

factors). The court explained that it ran the sentences consecutively

because there were at least three different victims of Appellant’s crimes.

The imposition of consecutive rather than concurrent sentences was within

its sound discretion. Commonwealth v. Johnson, 961 A.2d 877, 880

(Pa.Super. 2008).

Appellant also challenges the trial court’s denial of his motion to

withdraw his guilty plea post-sentence. Appellant acknowledges that such a

motion should only be granted if he has demonstrated that manifest

injustice would result, and that generally this requires a showing that the

guilty plea was not entered knowingly, intelligently, and voluntarily. ____________________________________________

2 The standard minimum range sentence for recklessly endangering another person, with Appellant’s prior record score of five, and an offense gravity score of three, was six to twelve months.

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Commonwealth v. Hodges, 789 A.2 764, 765 (Pa.Super. 2002). In

support of his claim that his plea was not knowing, intelligent, or voluntary,

Appellant asks us to review the record of the guilty plea hearing and the

sentencing to determine whether he “fully understood the nature of his plea

and the factual basis required to hold him guilty of those charges.”

Appellant’s brief at 21. He maintains that the evidence was “unclear” and

that he lacked understanding of the charges. Id.

Upon review of a denial of the withdrawal of a guilty plea, this Court

examines the totality of the circumstances surrounding the plea to

determine whether it was validly entered. Commonwealth v. Flanagan,

854 A.2d 489 (Pa. 2004). “Post-sentence motions for withdrawal are

subject to higher scrutiny since courts strive to discourage entry of guilty

pleas as sentence-testing devices.” Commonwealth v. Islas, 156 A.3d

1185 (Pa.Super. 2017) (quoting Commonwealth v. Broaden, 980 A.2d

124, 129 (Pa.Super. 2009)). A defendant is bound by statements he made

during the plea colloquy. Commonwealth v. Brown, 48 A.3d 1275

(Pa.Super. 2012).

We have examined the totality of the circumstances surrounding the

entry of the plea. Commonwealth v. Muhammad, 794 A.2d 378

(Pa.Super. 2002). The guilty plea colloquy satisfied the requirements of

Pa.R.Crim.P. 590 and Muhammad, supra, and establishes that Appellant’s

guilty plea was knowingly, voluntarily, and intelligently entered. Appellant

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acknowledged that he understood that he was entering a guilty plea to three

counts of recklessly endangering another person, each a misdemeanor of the

second degree that could carry a sentence of up to two years in jail. N.T.

Guilty Plea, 6/27/16, at 3. While he initially disagreed with the

Commonwealth’s recitation of the facts underlying the charges, upon

additional questioning, Appellant conceded that the facts were true and that

his reckless actions put people in danger. Id. at 6-7.

The Commonwealth maintains that Appellant’s decision to plead guilty

was knowingly, voluntarily, and intelligently made, and that his “real

complaint is that he is dissatisfied with his sentence.” Commonwealth’s brief

at 12. The record supports that view. Prior to the pronouncement of

sentence, Appellant acknowledged that he could have injured people in the

streets, and that he pled guilty to recklessly endangering “because I know

that I messed up.” N.T. Sentencing, 7/28/16, at 5. After the court imposed

sentence, Appellant complained that it was “extravagant.” Id. at 14. He

protested that he did not hurt or intend to hurt anyone, denied committing

the crimes, and said he did not understand the plea bargain. Appellant’s

next statement provided the root of his dissatisfaction: “I didn’t understand

that I could do three years in jail.” Id. at 14-15.

We find that Appellant has not made the requisite showing of manifest

injustice to warrant reversal of the trial court’s order denying withdrawal of

his guilty plea.

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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/13/2017

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