J-S79038-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
             v.                            :
                                           :
MANUEL COLLAZO,                            :
                                           :
                   Appellant               :           No. 140 EDA 2016

             Appeal from the Judgment of Sentence March 27, 2015
             in the Court of Common Pleas of Northampton County,
               Criminal Division, No(s): CP-48-CR-0003539-2014

BEFORE: GANTMAN, P.J., MOULTON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED JANUARY 19, 2017

        Manuel Collazo (“Collazo”) appeals from the judgment of sentence

imposed following his guilty plea to aggravated assault and unlawful

possession of a firearm.1 We affirm.

        The trial court aptly summarized the history underlying the instant

appeal, which we adopt as though fully restated herein.       See Trial Court

Opinion, 2/10/16, at 1-5.

        Briefly, as the unarmed victim was fleeing, Collazo shot the victim in

the back. On March 27, 2015, Collazo tendered a negotiated guilty plea to

the above-described charges. As a result of the plea, other related charges

were withdrawn, including a charge of attempted murder.2 Following written

and oral colloquies, the trial court sentenced Collazo in accordance with his



1
    18 Pa.C.S.A. §§ 2701(a)(1), 6105(a)(1).
2
    18 Pa.C.S.A. § 901.
J-S79038-16


negotiated plea. “The negotiations were that Collazo was to be sentenced at

the very bottom of the standard ranges[,] and the sentences were to run

consecutive to each other (60 + 42 = 102 months).” Trial Court Opinion,

2/10/15, at 2.   Thus, the trial court sentenced Collazo to an aggregate

prison term of 8½ to 20 years.

     Collazo did not timely file a post-sentence motion. However, on April

14, 2015, Collazo filed a Petition for Permission to File Post-Sentence

Motions Nunc Pro Tunc. In his Petition, Collazo claimed that the prior record

used to negotiate his sentence was incorrect.     In the alternative, Collazo

sought to withdraw his guilty plea.    At an April 24, 2015 hearing, Collazo

indicated that he did not wish to withdraw his plea.     However, Collazo’s

counsel sought a continuance, as Collazo was not prepared to make a record

on the post-sentence Motion, and was uncertain as to whether to seek post-

sentence relief. Notwithstanding, that same date, the trial court expressly

granted Collazo’s Petition for Leave to File Post-Sentence Motions Nunc Pro

Tunc. Trial Court Order, 4/24/16.

     Several days later, the trial court received information from the

Probation Department indicating that Collazo’s prior record score was

correct, but that Collazo’s counsel had negotiated a lower offense gravity

score.   As a result, the applicable guidelines recommended a longer

sentence than what was negotiated and imposed. Ultimately, at a hearing

on December 4, 2015, Collazo presented no evidence in support of his Post-



                                 -2-
J-S79038-16


Sentence Motion.   Rather, Collazo argued that the victim’s wound was not

serious, and that he wanted a lesser sentence than the sentence negotiated

by counsel.

      On December 7, 2015, the trial court denied Collazo’s Post-Sentence

Motion. On January 5, 2016, Collazo filed the instant appeal of his judgment

of sentence, followed by a court-ordered Pa.R.A.P. 1925(b) Concise

Statement of matters complained of on appeal.

      Collazo presents the following claims for our review:

      1.  DID THE [TRIAL] COURT ERR IN DENYING DEFENSE
      COUNSEL’S REQUEST FOR A CONTINUANCE?

      2. DID THE [TRIAL] COURT ERR IN DENYING [COLLAZO’S]
      NUNC PRO TUNC POST[-]TRIAL MOTION?

      3.   WAS THE SENTENCE EXCESSIVE BECA[US]E IT WAS
      INCONSISTENT WITH [THE] SENTENCING GUIDELINE[S], AND
      [THE   SENTENCING    COURT   FAILED]   TO  TAKE   INTO
      CONSIDERATION THE SENTENCING FACTORS[,] INCLUDING
      [THE] REHABILITATIVE NEEDS OF [COLLAZO], PROTECTION OF
      THE PUBLIC, AND GRAVITY OF THE OFFENSE?

      4. DID THE [TRIAL] COURT ERR IN DENYING [COLLAZO’S]
      REQUEST TO WITHDRAW HIS PLEA AND THEN SENTENCING HIM
      UNDER THE INCORRECT CRIMINAL CODE?

Brief for Appellant at 8 (unnumbered).

      Although Collazo raises four claims, he combines them into two claims

in the Argument section of his brief. In his first section, Collazo sets forth

the standard of review of a challenge to the sufficiency of the evidence. Id.

at 11-12 (unnumbered). Thereafter, Collazo appears to challenge his guilty

pleas as unknowing, claiming that “[h]e did not know that by pleading


                                 -3-
J-S79038-16


guilty[,] he would be sentenced with a prior record score of 3.” Id. at 12

(unnumbered).     Collazo also argues that the trial court failed to take into

consideration his age, position in the community and rehabilitative needs.

Id.

      In his second section, Collazo claims that the trial court erred in

denying his request to withdraw his guilty plea. Id. Collazo asserts that he

should be permitted to withdraw his plea, because “no one was ever able to

tell [Collazo] that he had a significant prior record.” Id.

      As a general rule, the entry of a guilty plea constitutes a waiver of all

defects and defenses except lack of jurisdiction, invalidity of the plea, and

legality of the sentence. Commonwealth v. Main, 6 A.3d 1026, 1028 (Pa.

Super. 2010). There is no absolute right to withdraw a guilty plea, and the

decision as to whether to allow a defendant to do so is a matter within the

sound discretion of the trial court.   Commonwealth v. Muhammad, 794

A.2d 378, 382 (Pa. Super. 2002). After sentencing, “a showing of prejudice

on the order of manifest injustice” is required before withdrawal is properly

justified.   Commonwealth v. Shaffer, 446 A.2d 591, 593 (Pa. 1982)

(citation omitted). “[M]anifest injustice occurs when a plea is not tendered

knowingly, intelligently, voluntarily, and understandingly.” Commonwealth

v. Gunter, 771 A.2d 767, 771 (Pa. 2001).

      In determining whether a plea is valid, the court must examine the

totality of the circumstances surrounding the plea.           Commonwealth v.



                                   -4-
J-S79038-16


Broaden, 980 A.2d 124, 129 (Pa. Super. 2009).              Further, post-sentence

motions for withdrawal are subject to higher scrutiny, since courts strive to

discourage   the   entry   of   guilty   pleas   as   sentencing-testing   devices.

Commonwealth v. Kelly, 5 A.3d 370, 377 (Pa. Super. 2010).

      In its Opinion, the trial court addressed Collazo’s assertions, and

concluded that they lack merit, and/or are waived. See Trial Court Opinion,

2/10/16, at 6-8. We agree with the sound reasoning of the trial court, as

set forth in its Opinion, and affirm its resolution of Collazo’s claims on this

basis. See id.; see also id. at 4-5 (whereupon the trial court, based upon

information from the Chief Adult Probation Officer, concluded that the

correct prior record score had been applied, but also recognizing that a

lesser offense gravity score had been applied, benefitting Collazo).           We

additionally note the following.

      Collazo baldly claims that at sentencing, the trial court improperly

failed to take into consideration his age, rehabilitative needs, and position in

the community.      Brief for Appellant at 12 (unnumbered).            This claim

challenges the discretionary aspects of Collazo’s sentence. However,

      [w]here 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
      discretionary appeal following the entry of a negotiated plea[ ]



                                    -5-
J-S79038-16


     would undermine the designs and goals of plea bargaining, and
     “would make a sham of the negotiated plea process[.]”

Commonwealth v. Reichle, 589 A.2d 1140, 1141 (Pa. Super. 1991)

(citations omitted); accord Commonwealth v. Baney, 860 A.2d 127, 131

(Pa. Super. 2004).   As the trial court imposed the agreed-upon sentence,

Collazo cannot now challenge the discretionary aspects of that sentence. He

received exactly what he bargained for.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/19/2017




                                -6-
                                                                              Circulated 12/28/2016 02:51 PM




       IN THE COURT OF COMMON PLEAS OF NORTHAMPTON                           COUNTY
                  COMMONWEAL TH OF PENNSYLVANIA
                          CRIMINAL DIVISION

COMMONWEAL TH OF PENNSYLVANIA                                 No. CP-48-CR-3539-2014

                      v.

MANUEL COLLAZO,

                                    Defendant


                            PENNSYLVANIA RULE OF
                     APPELLATEPROCEDURE 1925(a) STATEMENT


        A Statement of Matters Complained Of On Appeal was received on January 26, 2016, in

 support of the Notice of Appeal to the Superior Court of Pennsylvania from the Order of Court

 entered in this matter on December 7, 2015. In our Order under Appeal we denied post-sentence

 relief. The Defendant now complains that: (1) we erred because we would not continue his

 hearing on his post-sentence motion on December 4, 2015; (2) that we "erred by denying

 Defendant's Nunc Pro Tune Post Trial Motion" (without giving any specifics as to why we were

 erred); (3) that the sentence imposed "was excessive" and did not consider important (but

 unmentioned) sentencing factors; (4) that our sentence was not consistent with the sentencing

 guidelines; and, (5) "the defendant was sentenced under the incorrect criminal code section."


        We now provide the important historical background. On March 20, 2015, guilty plea

 counsel ("Counsel") for Defendant, Manuel Collazo ("Collazo"), appeared for a pre-trial

 conference and represented to this Court that there were ongoing guilty plea negotiations with

 the Commonwealth, in which Collazo would plead to Aggravated Assault (F 1 ), 18

 PA.CONS.STAT.ANN. § 2701(a)(l), and Unlawful Possession of a Firearm, 18

 PA.CONS.STAT.ANN.§
                 6105(a)(l), with all other charges being withdrawn, including the most
serious charge - Attempted Murder. The facts alleged that Collazo shot the unarmed victim in

the back as he was fleeing, resulting in a serious wound to his chest cavity which required a

significant hospitalization and medical treatment. During the pre-trial conference, the

Commonwealth represented that the negotiated plea must include a sentence bargain with an

aggregate sentence of 8 1h to 20 years. Apparently, Collazo was not prepared to accept the

sentence bargain. Therefore, the matter was set for trial during the April Term of Criminal

Court.


         On March 27, 2015, Counsel appeared in Court with Collazo to proffer a plea. However,

Counsel indicated that there was still uncertainty from Collazo related to the length of the

sentence bargain. When Collazo addressed the Court, he represented that he wanted to accept

the Commonwealth's offer, although he did note that he was displeased with the length of the

sentence bargain. We then made a detailed record regaining the plea negotiations, the proposed

sentence bargain, and Collazo's Constitutional right to a jury trial prior to accepting the

negotiated resolution. Counsel represented that the Deadly Weapon Used Sentencing Guidelines

Matrix for the Aggravated Assault was 60-72 months in the standard range (OGS 10, Prior

Record Score 3) and for Unlawful Possession of a Firearm the regular Sentencing Guidelines set

the standard range at 42-54 months (OGS 10, Prior Record Score 3).1                  After a colloquy, we

 accepted the proffered plea and imposed the sentence bargain in accordance therewith. The

 negotiations were that Collazo was to be sentenced at the very bottom of the standard ranges and

 the sentences were to run consecutive to each other (60 + 42              =   102 months). Collazo was

 sentenced to an aggregate period of 8 1h to 20 years of incarceration.



 1
   Collazo's criminal history established that on 10/29/03, Defendant plead guilty in Ohio to separate and
 independent felony charges - Robbery committed on 12/27/2002 and Felonious Assault committed on 5/2/2003.

                                                       2
       Rule 720(A)(l) of the Pennsylvania Rules of Criminal Procedure provides as follows:

"(I) ... a written post-sentence motion shall be filed no later than 10 days after the imposition of

sentence." See Pa.R.Crim.P. 720(A)(l), 42 PA.CONS.STAT.ANN.; see also Commonwealth v.

Dreves, 839 A.2d 1122, 1126 (Pa. Super. 2003) (en bane).

       Pursuant to Rule 720(A)(l), Collazo had ten (10) days from March 27, 2015, to file his

post-sentence motion. Collazo failed to timely file a post-sentence motion. On April 14, 2015,

Collazo filed a Petition for Permission to File Post-Sentence Motions Nunc Pro Tune. The post-

sentence motion set forth two requests for relief - First, the prior record score used to negotiate

the sentence bargain was incorrect and second, Collazo asked for reconsideration or, in the

alternative, to withdraw his guilty plea. Upon receipt of the motion, this Court scheduled a

hearing on April 24, 2015. In the interim, we requested that our probation department confirm

Collazo' s criminal record and calculate his prior record score.

        On April 24, 2015, Collazo came into the courtroom and it was announced that Collazo

did not want to withdraw his plea; however, Counsel noted that Collazo was not prepared to

make a record on his post-sentence motion, as he was unsure that he wished to pursue post-

sentence relief. At the request of Counsel, we continued the matter to the next hearing list, May

 1, 2015.

        On April 27, 2015, we received a letter from the Chief Adult Probation Officer, Marie D.

Bartosh, which explained Collazo's prior record and concluded that the proper prior record score

 was used by the District Attorney and Collazo for negotiating the sentence bargain. However,

 Ms. Bartosh actually calculated the guideline ranges as follows: Aggravated Assault - 72-90

 months in the standard range with plus or minus 12 months in the aggravated and mitigated

 ranges (OGS 11, Prior Record Score 3, deadly weapon matrix) and for Unlawful Possession of a



                                                  3
Firearm the Guidelines, provided a standard range of 42-54 months with plus or minus 6 months

in the aggravated and mitigated ranges (OGS 10, Prior Record Score 3).         It is apparent that

Counsel negotiated a lower OGS for the aggravated assault than the facts supported.

       On May 1, 2015, Counsel informed the Court that Collazo would, once again, not be

making a record and that likely, he would withdraw his request for relief.     However, Counsel

indicated that he was awaiting additional information about Collazo's out-of-state prior record.

At that time, it was agreed that we would direct that Collazo be transported to the Department of

Corrections to begin his sentence.

        On May 5, 2015, we forwarded the April 27, 2015, letter from the probation department

to Counsel and informed Counsel that, if was able to uncover any new or additional information

about Collazo's past convictions, we would seek a review by the Sentencing Commission.

        On May 14, 2015, Counsel submitted a letter to this Court representing that Collazo's

family had contacted his office requesting that the post-sentence motions be withdrawn.   Counsel

also represented that he was waiting to receive confirmation from Collazo that he would formally

withdraw his request for post-sentence relief. In the interim, Counsel requested that we continue

this matter.

        On the afternoon of July 17, 2015, we received a letter from Counsel dated July 14, 2015,

requesting that we now bring Collazo back from SCI to Northampton County for a hearing on his

 Petition for Nunc Pro Tune relief. We scheduled this matter for a Conference on August 7, 2015.

 On August 7, 2016, we conferred with the ADA and Counsel and told that there was no

 additional information that would contradict the Bartosh letter. Still, Counsel requested a record

 proceeding with Collazo to finalize this matter.    We then scheduled a video conference for

 October 2, 2015, to make the final record with Collazo.



                                                 4
        Prior to the conference, Counsel requested that the video conference be cancelled, so that

Collazo can be brought to Northampton County, because, once here, Counsel expected that he

could confer more extensively with Collazo related to his advice to withdraw his claim. Counsel

represented that after a face-to-face conference, he expected that the post-sentence motion would

be withdrawn.2     The ADA agreed and issued a writ to bring Collazo to Northampton County on

November 9, 2015, with the expectation that this matter would finally be resolved during the

December week of Criminal Court (commencing November 30, 2016).

        On November 16, 2015, we received Counsel's proposed order with his request to

withdraw as counsel and to appoint a public defender, as Collazo was now raising ineffective

assistance of counsel claims. We signed the Order and scheduled the matter for December 4,

2015.

        We made a final record on December 4, 2015. At that time, Collazo presented no

evidence. Collazo argued that, even though he did shoot the victim in the back as he fled, the

wound that required the victim's hospitalization was not that serious.3 He was upset with the

length of sentence and wanted a lesser sentence than the one he agreed to in the plea

negotiations.

         Technically, given the procedural posture of this matter and under rules of criminal

procedure, with no Order or other affirmative action by this Court to vacate our sentence, our

 sentence became a final Order 120 days after April 14, 2015. See Pa.R.Crim.P. 720(B)(3). Out

 of respect for guilty plea counsel and wanting to be fair to Collazo, we patiently waited the

 additional information about the prior criminal record of Collazo. None was ever presented.


 2
   Knowing that Collazo's mother resides in Northampton County, we suspected that Collazo may have wished to
 visit with his family.
 3
   Apparently, the victim survived his chest wound and was eventually discharged from the hospital without any
 obvious permanent disability.

                                                        5
         Clearly, Collazo has buyer's remorse, as he no longer wants his sentence bargain, yet at

the same time, he wants to keep the very generous plea bargain.      Even as late as December 4,

2015, Collazo did not want to vacate his plea bargain. However, he did argue for a more lenient

sentence. Further, there has been no contest to the fact pattern in which Collazo shot the fleeing

and unarmed victim in the back, with the bullet ripping through his body and out the front of his

chest.   Based upon the proper guidelines applicable to this matter, Collazo received a most

generous sentence bargain, as the sentencing guidelines upon which his sentence bargain was

based upon were below the proper standard guideline ranges for the Aggravated Assault (which

should have been 72-90 months).

         Looking at this generous resolution we note that: ( 1) the most serious charge, Attempted

Murder, with a standard range of 138-240 months (OGS 14, Prior Record Score 3, deadly

weapon matrix) was withdrawn; (2) the actual sentence bargain negotiated by Counsel for the

Aggravated Assault was at the bottom of the standard range using an OGS of 10 (however, the

appropriate OGS should have been 11 so that the sentence for the aggravated assault was

actually at the very bottom of the mitigated range); and (3) the Unlawful Possession of a Weapon

was at the very bottom of the standard range. Thus, it appears that this Defendant achieved a

very favorable outcome, which is one that he likely could not have achieved had he taken this

 matter to trial.

          So, looking at the complaints raised on appeal:

          1. This matter had been continued numerous times since the initial filing on April 14,

 2015. By December 4, 2015, when the last request for a continuance was denied, technically we

 had already lost jurisdiction to act as our sentence was never vacated or acted upon (since

 Collazo had continually declined to make a record at our scheduled hearings). Thus, long before



                                                   6
December 4, 2015, our sentence should have been a final Order by operation of Rule 720. By

entering our Order of December 7, 2015, we presented Collazo with a gift that he cannot fully

appreciate - the ability to file this timely appeal of his sentence to the Superior Court. Finally,

Appellate Counsel does not provide any support for the claim that we committed error by

requiring Collazo to make a record on December 4, 2015, on his post-sentence motion filed on

April 14, 2015, so we cannot respond to this claim in more detail. As such, we think this claim is

waived.

          2. We do not understand the claim that we erred in the reasoning behind our December

7, 2015, Order, as Collazo's Appellate Counsel did not even give us the courtesy of providing

any support for the bald allegation. As a result, we think that this claim is also waived.

          3. & 4. These claims suggest that the sentence we imposed was excessive and

inconsistent with the sentencing guidelines. However, our sentence was actually at the very

bottom of the negotiated standard ranges (and in the mitigated range if the proper guidelines

were considered), so we did not have to provide any support for the sentence. Further, this was a

negotiated plea with a sentence bargain that the Defendant asked us to accept; therefore, once we

 accepted the sentence bargain, by law we had absolutely no sentencing discretion. Thus, the

 claims by Appellate Counsel that we imposed an excessive sentence or one that was inconsistent

 with the sentencing guidelines is laughable and requires no further comment.

          5.   This last claim is that Collazo was sentenced under the incorrect criminal code

 section. The assertion that we erred because we sentenced Collazo to the charges that he

 negotiated for with an agreed sentence, then stood before us asking that we accept the deal, and

 after we did, he thanked us .... excuse us, but we are slightly confused by the complaint. Further,

 the Statement of Matters Complained Of On Appeal does not provide any support for the bald



                                                  7
claim that we used an improper criminal statute for sentencing, especially considering that the

acts that he acknowledged committing during his guilty plea colloquy supported the charges for

which he plead guilty and was sentenced. Once again we submit that without a more detailed

statement of matters complained of, we cannot address this claim in detail. As such, this

complaint should also be considered waived.

       Frankly, this entire exercise is a waste of judicial resources.



                                                       BY THE COURT:


                                                          C."            ,,,_.
                                                          'E=~                   ~
                                                       STEPHEN G. BARATTA,PJ...-:--·




                                                   8
