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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

RICARDO BIVENS

                            Appellant                    No. 2492 EDA 2015


             Appeal from the Judgment of Sentence June 23, 2015
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0000042-2015


BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.:                             FILED AUGUST 19, 2016

        Ricardo Bivens appeals from the judgment of sentence, imposed in the

Court of Common Pleas of Monroe County, after he entered an open plea of

guilty to fleeing or attempting to elude police. 1       After careful review, we

affirm.

        The trial court set forth the facts of this case as follows:

        On December 8, 2014, [Bivens] led police on a 20.5 mile high
        speed chase at speeds of up to 120 miles per hour. The episode
        began in Pocono Township, Pennsylvania when [Bivens] failed to
        accede to a routine traffic stop, covered at least two [s]tate
        [r]outes and Interstate Route 80, and was called off in Delaware
        Water Gap, Pennsylvania when [Bivens] crossed into New
        Jersey. During the pursuit, [Bivens] broke numerous traffic
        laws, passed many vehicles, drove erratically, improperly
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S.A. § 3733.
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      entered and exited roadways, operated his uninspected car in a
      dangerous and reckless manner, and placed the lives of
      numerous motorists and police officers in jeopardy.

Trial Court Opinion, 9/14/15, at 1-2.

      Bivens was ultimately arrested by New Jersey State Police in Hope,

New Jersey, where he was charged in a separate case with possession of

heroin.   In this matter, Bivens was charged with fleeing or attempting to

elude a police officer, recklessly endangering another person, and several

summary traffic offenses. On April 7, 2015, Bivens pled guilty to fleeing or

attempting to elude.    After a presentence investigation report (“PSI”) was

completed, the court sentenced Bivens on June 23, 2015, to 30 to 60

months’ incarceration. Bivens’ motion for reconsideration of sentence was

denied and this timely appeal follows, in which Bivens raises the following

issue for our review:

      Where the Commonwealth approves and signs a written guilty
      plea that is presented to the court categorizing the Defendant as
      having a prior record score of 5, can the probation department
      thereafter change the prior record score to that of a repeat felon,
      allowing the judge to put him in a much higher standard range
      for purposes of sentencing?

Brief of Appellant, at 5.

      Bivens raises a challenge to the discretionary aspects of his sentence.

See Commonwealth v. Archer, 722 A.2d 203, 211 (Pa. Super. 1998) (en

banc) (any misapplication of Sentencing Guidelines constitutes challenge to

discretionary aspects of sentence).      Such a claim does not entitle an

appellant to review as a matter of right. Commonwealth v. Swope, 123



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A.3d 333, 337 (Pa. Super. 2015).     Rather, before this Court can address

such a discretionary challenge, an appellant must comply with the following

requirements:

     An appellant challenging the discretionary aspects of his
     sentence must invoke this Court’s jurisdiction by satisfying a
     four-part test: (1) whether appellant has 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.

Id., quoting Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.

2011).

     Here, Bivens filed a post-sentence motion raising his sentencing claim,

followed by a timely notice of appeal to this Court. He has also included in

his brief a concise statement of reasons relied upon for allowance of appeal

with respect to the discretionary aspects of his sentence pursuant to

Pa.R.A.P. 2119(f).   Accordingly, we must now determine whether he has

raised a substantial question that the sentence appealed from is not

appropriate under the Sentencing Code.

     In his Rule 2119(f) statement, Bivens asserts that the trial court

imposed an excessive sentence because it improperly utilized a repeat felon

range (RFEL) prior record score rather than the score of 5 that was indicated

on the guilty plea form that Bivens signed and that was approved by the

Commonwealth. This court has previously held that the improper calculation

of a prior record score raises a substantial question.   Commonwealth v.


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Janda, 14 A.3d 147, 165 (Pa. Super. 2011) (improper calculation of prior

record score based on out-of-state offenses raises substantial question).

Accordingly, we will address this argument on its merits.

       We begin by noting:

       [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.

Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007) (citations

omitted).     Deference is accorded to the trial court’s pronouncement of

sentence because of the perception that the trial 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.

Ward, 568 A.2d 1242, 1243 (Pa. 1990).

       Here, Bivens argues that, although there was no agreement with the

Commonwealth as to sentence, his sentence is nonetheless excessive.2
____________________________________________


2
  In his brief, Bivens presents his claim primarily as one implicating the
discretionary aspects of his sentence. However, he also suggests that his
plea was not knowing, intelligent, and voluntary because he agreed to it
under the false impression that he would be sentenced with a prior record
score of 5. However, Bivens failed to preserve any claim regarding the
(Footnote Continued Next Page)


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Specifically, he believes he is entitled to a lesser sentence because his guilty

plea form stated that his prior record score was a 5, yet he was sentenced

as a repeat felon. As a result, Bivens received a term of 30 to 60 months’

incarceration, “well beyond the standard range sentence [of 18 to 36

months] allowable under the terms agreed to at the time of the plea.” Brief

of Appellant, at 13.

      We begin by noting that Bivens does not actually claim that the prior

record score under which he was sentenced, RFEL, is incorrect. Indeed, at

sentencing, Bivens’ counsel acknowledged that Bivens’ “rap sheet is not

short,” N.T. Sentencing, 6/23/15, at 2; stated that he had reviewed the

sentencing recommendation with his client; and did not object to Bivens’

classification as RFEL. Nowhere in the record does Bivens argue that a RFEL

classification is actually inaccurate, nor does he provide any factual basis to

support such a claim.

      Moreover, Bivens’ assertion that his sentence is excessive and that the

court should have taken into consideration the mitigating fact that “for a

period of over 20 years, [Bivens] led a crime-free life” is without merit.




                       _______________________
(Footnote Continued)

voluntariness of his plea. He did not raise the claim at the time of
sentencing, nor did he include the issue in his post-sentence motion.
Accordingly, insofar as Bivens attempts to challenge the voluntariness of his
plea, we are precluded from considering the claim, as it has been waived.
See Pa.R.Crim.P. 720(B)(1)(a)(i).



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     "When imposing a sentence, the sentencing court must consider the

factors set out in 42 Pa.C.S.A. § 9721(b), that is, the protection of the

public, gravity of offense in relation to impact on victim and community, and

rehabilitative needs of the defendant[.]" Commonwealth v. Walls, 846

A.2d 152, 157 (Pa. Super. 2004).        In order to constitute an abuse of

discretion, a sentence must either exceed the statutory limits or be so

manifestly    excessive   as   to   constitute   an   abuse   of   discretion.

Commonwealth v. Miller, 965 A.2d 276, 277 (Pa. Super. 2009), quoting

Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000). A sentence

should not be disturbed where it is evident that the sentencing court was

aware of sentencing considerations and weighed the considerations in a

meaningful fashion.   Where a sentencing judge had the benefit of a PSI

report, it is presumed that he was aware of the relevant information

regarding the defendant’s character and weighed those considerations along

with mitigating statutory factors. Commonwealth v. Devers, 546 A.2d 12

(Pa. 1988). Finally, where the sentencing court imposes a standard-range

sentence with the benefit of a PSI report, we will not consider the sentence

excessive.    Commonwealth v. Corley, 31 A.3d 293, 298 (Pa. Super.

2011), citing Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super.

2010).

     Here, the court was in possession of a PSI and considered its contents

in fashioning Bivens’ sentence, which was within the standard range of the


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sentencing guidelines for his prior record score. At the sentencing hearing,

the court reviewed at length the factors it took into consideration in reaching

its decision:

      THE COURT: Okay. Mr. Bivens, in imposing the sentence you
      are about to hear, I’ve considered several things:

      First, the plea that you took before me and this Court; second,
      the Court’s record and filing in this matter; third, the [PSI]
      report that was prepared by our probation office that has
      information about you, your background, your criminal history
      and lots of other matters as well, including the fact that you are,
      as [your attorney] indicated, classified as a repeat felon, which is
      something that you’ve earned through 13 adult arrests, with 12
      convictions over the course of your career.

      I have also considered the applicable sentencing laws, rules and
      guidelines, and I want to note a couple things:

      First, we can’t escape the fact that a repeat felon for purposes of
      sentencing, and [your attorney] said, you know, at some point
      that the past catches up to you.

      A little more academically for the purposes of sentencing today,
      there is something else and that is it’s that we use history as a
      predictor of future behavior. All of us do that individually in our
      daily lives when we deal with others on a business level or a
      personal level. We do that in other branches of assessment, and
      we do it in court quite frequently.

      And so we look at someone’s history to see if maybe we have
      some semblance of hope that in the future criminal behavior
      won’t happen. You have a long history, you know, not only in
      the criminal justice system but of drug abuse and use. You had
      heroin in your car that you’ve admitted was not for personal use
      but obviously was for sale.

      I also want to note that, you know, when you ran from the police
      you didn’t just run from the police, you ran a long way, and went
      more than double the speed limit and put yourself and the
      officers or troopers – I guess both – and other motorists and
      anyone else on or near the road in substantial danger while you
      did it. And so I think that the mid-standard range sentence that
      has been proposed is spot on, and I will impose it.

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N.T. Sentencing, 6/23/15, at 5-6 (emphasis added).

      The foregoing reveals that the court considered the protection of the

public, the gravity of the offense, and Bivens’ rehabilitative needs. See 42

Pa.C.S.A. § 9721(b). In light of Bivens’ extensive criminal history, and the

fact that he risked the lives of numerous law-enforcement officers as well as

members of the public during the commission of his offense, we cannot say

that the standard-range sentence imposed was excessive.         Accordingly,

Bivens’ claim must fail.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/2016




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