J-S17020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

LEON CULBREATH

                            Appellant                 No. 3505 EDA 2015


              Appeal from the Judgment of Sentence June 8, 2015
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0008249-2014


BEFORE: OLSON, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                              FILED MAY 17, 2017

        Appellant, Leon Culbreath, appeals from the June 8, 2015 judgment of

sentence entered in the Court of Common Pleas of Philadelphia County (“trial

court”) sentencing Appellant to 5 to 15 years’ incarceration followed by 10

years’ probation for aggravated assault and conspiracy following Appellant’s

entry of a guilty plea.1 Upon review, we affirm.

        Following an incident on January 12, 2014, Appellant was charged with

a number of crimes including aggravated assault, simple assault, conspiracy,

and recklessly endangering another person.          Appellant entered an open

guilty plea to conspiracy and aggravated assault on March 11, 2015.       The



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1
    18 Pa.C.S.A. § § 2702, and 903 respectively.
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trial court directed that Appellant undergo a mental health evaluation and a

pre-sentence investigation prior to sentencing.

      Following a hearing on June 8, 2015, the trial court sentenced

Appellant to 5-15 years’ imprisonment on the aggravated assault charge and

a consecutive ten years of probation for conspiracy. Appellant filed a post-

sentence motion on June 16, 2015, seeking to withdraw his guilty plea and

in the alternative, challenging the discretionary aspects of sentencing. On

October 19, 2015, Appellant’s post-sentence motion was denied by operation

of law. Appellant filed a timely notice of appeal on November 17, 2015.

      On February 11, 2016, the trial court directed Appellant to file a

Pa.R.A.P. 1925(b) statement. The trial court issued a second order directing

Appellant to file a Rule 1925(b) statement on March 23, 2016, due to

defective service. Appellant filed his concise statement on April 12, 2016,

and the trial court issued a Pa.R.A.P. 1925(a) opinion on May 4, 2016.

      Appellant raises two issues on appeal, which we quote verbatim.

      I.    Whether the trial court erred in not allowing [A]ppellant to
            withdraw his guilty plea where [A]ppellant was so mentally
            deficient at the time of the plea that he did not enter the
            plea knowingly, intelligently[,] or voluntarily?

      II.   With respect to the sentence imposed upon [A]ppelllant by
            the lower court, did that court abuse its discretion by
            imposing an aggregate sentence of not less than 5, nor
            more than 15, years of incarceration followed by 10 years
            of probation?

Appellant’s Brief at 6.




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      First, Appellant argues that the trial court erred in accepting his guilty

plea because he did not enter the plea knowingly, intelligently, or

voluntarily.   It is well established “that by entering a guilty plea, the

defendant waives his right to challenge on direct appeal all nonjursidictional

defects except the legality of the sentence and the validity of the plea.”

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

omitted).      “There is no absolute right to withdraw a guilty plea.”

Commonwealth v. Broaden, 980 A.2d 124, 128 (Pa. Super. 2009)

(citations omitted).    In order to withdraw a guilty plea following the

imposition of sentence, “a defendant must demonstrate that manifest

injustice would result.” Id. at 129. “Manifest injustice may be established if

the plea was not tendered knowingly, intelligently, and voluntarily.”       Id.

(citations omitted).    Moreover, “the court must examine the totality of

circumstances surrounding the plea.” Id. (citations omitted). Furthermore,

      [t]he longstanding rule of Pennsylvania law is that a defendant
      may not challenge his guilty plea by asserting that he lied while
      under oath, even if he avers that counsel induced the lies. A
      person who elects to plead guilty is bound by the statement he
      makes in open court while under oath and he may not later
      assert grounds for withdrawing the plea which contradict the
      statements he made at his plea colloquy.

Commonwealth v. Turetsky, 925 A.2d 876, 881 (Pa. Super. 2007)

(quoting Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003)

(citations omitted)).




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     In the matter sub judice the following questions and answers were

provided during the guilty plea colloquy on March 11, 2015.

     [Trial Court (“Q”)]: Did you have any trouble understanding this
     form as you went over it with your attorney?

     [Appellant (“A”)]: No, Your Honor.

     Q: Are you familiar with the alleged conduct in this case, and
     what the Commonwealth would have to prove in order that you
     be found guilty?

     A: Yes.

     Q: Are you satisfied with the services of your attorney so far?

     A: Yes.

                                    ***

     Q: Are you under the influence of any drugs or alcohol?

     A: No.

     Q: Have you taken any medication within the past 48 hours?

     A: No.

     Q: Have you ever been diagnosed with a mental condition?

     A: Yes.

     Q: What is that?

     A: Anxiety, bipolar[,] and depression.

     Q: Are you taking any medications for any of those conditions?

     A: No.

     Q: Do you have any trouble understanding what’s going on here
     today?

     A: No.



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N.T. Guilty Plea, 3/11/15, at 6-7.             Appellant cites to Turetsky for the

proposition that “mental health issues of the defendant that were not

revealed during the guilty plea colloquy raised sufficient grounds for the case

to be remanded for at least a hearing to determine whether the defendant

was competent at the time of the plea.”              Appellant’s Brief at 13 (citing

Turetsky, 925 A.2d at 881). However, Appellant’s argument is flawed as

the guilty plea colloquy in the matter sub judice identified Appellant’s

diagnosis of anxiety, bipolar, and depression. The trial court followed up and

asked if Appellant had any trouble understanding what was occurring, and

Appellant responded in the negative.            Furthermore, at sentencing defense

counsel stated “[s]o the pre-sentence report - - obviously he was

incompetent even at the time – possibly at the time of the guilty plea. But I

spoke to him again today, after he’s been placed on the medication. He still

wishes to proceed this way.” N.T. Sentencing, 6/8/15, at 5. Thus, based

upon the totality of the circumstances, Appellant’s guilty plea was knowing,

voluntary, and intelligent.       Therefore, the trial court did not err when it

denied Appellant’s post-sentence motion to withdraw a guilty plea.

       Appellant’s next argument is that the trial court abused its discretion

when it fashioned Appellant’s sentence.2               In order to challenge the
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2
  In order to challenge the discretionary aspects of sentencing, an appellant
must raise the issue in a post-sentence motion, file a timely appeal, include
a Pa.R.A.P. 2119(f) statement in appellant’s brief, and present a substantial
question for review. Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.
(Footnote Continued Next Page)


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discretionary aspects of sentencing, an appellant must present “a substantial

question that the sentence appealed from is not appropriate under the

Sentencing Code.”         Commonwealth v. Swope, 123 A.3d 333, 338 (Pa.

Super. 2015). Moreover, a substantial question is determined on a case-by-

case basis.     Id. (citing Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.

Super. 2011).      “A substantial question exists only when the appellant

advances a colorable argument that the sentencing judge’s actions were

either: (1) inconsistent with a specific provision of the Sentencing Code; or

(2) contrary to the fundamental norms which underlie the sentencing

process.” Id.

      Appellant contends that his sentence is in the upper end of the

standard range and the 15-year tail is greater than an aggravated sentence.

“[W]hen the sentence is within the range prescribed by statute, a challenge

to the maximum sentence imposed does not set forth a substantial question

as   to   the   appropriateness        of   the   sentence   under   the   guidelines.”

Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super. 2005)

(quoting Commonwealth v. Brown, 587 A.2d 4, 6 (Pa. Super. 1991)).

Thus, Appellant has failed to present a substantial question regarding the

excessiveness of the sentence imposed.               Moreover, Appellant’s assertion

that the trial court did not consider mitigating factors is belied by the record

                       _______________________
(Footnote Continued)

Super. 2013), appeal denied, 77 A.3d 1258 (Pa. 2013) (citing
Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa. Super. 2006)).



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and Appellant’s brief. In his brief, Appellant asserts “the lower court found

that there were mitigating factors.       Those factors were Appellant’s mental

health history and his acceptance of responsibility.” Appellant’s Brief at 16.

Furthermore, the trial court had the benefit of a presentence investigation

report (PSI). “Our Supreme Court has determined that where the trial court

is informed by a [PSI], it is presumed that the court is aware of all

appropriate sentencing factors and considerations, and that where the court

has   been    so   informed,   its   discretion   should   not   be   disturbed.”

Commonwealth v. Downing, 990 A.2d 788, 794 (Pa. Super. 2010). Thus,

Appellant has failed to raise a substantial question regarding the trial court’s

failure to consider mitigating factors.

      Even if Appellant raised a substantial question, Appellant’s claim lacks

merit.   Our standard of review regarding a challenge to the discretionary

aspects of sentencing is well established.

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

Commonwealth v. Solomon, 151 A.3d 672, 677 (Pa. Super. 2016)

(quoting Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014)

(additional citations omitted)).




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     In the matter sub judice, the trial court sentenced Appellant to a

standard range sentence. In fashioning the sentence, the trial court

     considered the mental health report, the modified pre-sentence
     report and sentencing guidelines along with the arguments of
     both counsel, exhibits C-1 and C-2 and [Appellant’s] alocution
     [(sic)].

           I find some strong mitigating factors that include
     [Appellant’s] mental health history.       And I also find, as a
     mitigating factor, the fact that he’s accepted responsibility.

            I understand the Commonwealth’s position that he cannot
     or will not cooperate with the investigation by providing the
     identity and/or whereabouts of the man in the checkered shirt.

           But nonetheless, that is his right.     That’s not an
     aggravating factor. So, while I recognize it, it won’t count
     against him.

           On the otherhand [(sic)], there are compelling aggravating
     factors which include the circumstances of [Appellant]. The
     video shows certain callousness even though his physical role in
     it was not as great.

           It shows a callousness that’s more than consistent with his
     long history of serious violence. It highlights a need to protect
     the society against this individual.

           His history also shows that he doesn’t do well under
     supervision given his numerous convictions. At the age of 25,
     he’s got 13 arrests, seven convictions, eight violations[,] and
     one revocation.

           Also the effect on the victim, who is elderly and a veteran.
     Again, even though his participating, physically, didn’t even
     come close to the man in the checkered shirt, it shows predatory
     tendency that’s disturbing. It shows a danger to society.

          This sentence is also intended to address [Appellant’s]
     rehabilitative needs, among which, are mental health treatment
     and substance abuse treatment.



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           I would agree with [Appellant’s] own recognition that while
     he’s in custody, he has no access to unlawful controlled
     substances.

           So, taking all of this into account, balancing the various
     interests to protect the society, the rehabilitative needs of
     [Appellant]; just punishment for the offense, general and
     specific, on aggravated assault, graded as a felony of the first
     degree, 5 to 15 years incarceration.

          I’m also considering the sentencing guidelines, in this case,
     which are 48 to 60 plus or minus 12. I note that this part of the
     sentence is within the guidelines.

           Again, I think it’s good that [he] accepted responsibility
     because it would have been much more since this is worse than
     any other “agg” assaults in his history.

N.T. Sentencing, 6/8/15, at 35-38. Upon review of the record the trial court

did not abuse its discretion when it sentenced Appellant.     The trial court

considered numerous factors and specifically noted both mitigating and

aggravating circumstances.   Moreover, the trial court had the benefit of a

presentence investigation report. Thus, Appellant’s argument fails.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/17/2017




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