J-S21007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DEMETRIC PULLEN,

                            Appellant                 No. 2031 EDA 2015


        Appeal from the Judgment of Sentence Entered February 3, 2015
             In the Court of Common Pleas of Montgomery County
                           Criminal Division at No(s):
                           CP-46-CR-0000061-2014
                           CP-46-CR-0000063-2014
                           CP-46-CR-0000066-2014
                           CP-46-CR-0000067-2014
                           CP-46-CR-0000242-2014
                           CP-46-CR-0000401-2014
                           CP-46-CR-0000923-2014


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

MEMORANDUM BY BENDER, P.J.E.:                            FILED MAY 03, 2016

        Appellant, Demetric Pullen, appeals from the judgment of sentence of

an aggregate term of 18 to 36 years’ imprisonment, imposed after he pled

guilty in seven different cases to various offenses, including several counts

of robbery.     On appeal, Appellant argues that his plea was not knowing,

intelligent, and voluntary, and that the court abused its discretion in

sentencing him. After careful review, we affirm.


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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       Appellant was charged in seven different cases with numerous offenses

stemming from various robberies of stores and private residences.1               On

September 30, 2014, Appellant entered an open guilty plea to conspiracy,

18 Pa.C.S. § 903(a)(1); theft by unlawful taking, 18 Pa.C.S. § 3921(a);

persons not to possess a firearm, 18 Pa.C.S. §             6105(c)(1); burglary, 18

Pa.C.S. §     3502(a)(2); aggravated assault, 18 Pa.C.S. § 2703(a)(1); and

four counts of robbery, 18 Pa.C.S. §§ 3701(a)(1)(i), 3701(a)(1)(ii),

3701(a)(1)(iv), 3701(a)(1)(v). In exchange for Appellant’s guilty plea, the

Commonwealth        agreed     not    to   seek   the   deadly   weapon   sentencing

enhancement, or any mandatory minimum sentences.

       On February 3, 2015, the court conducted a lengthy sentencing

proceeding, at the conclusion of which it imposed an aggregate term of 18 to

36 years’ incarceration.

       On February 5, 2015, [Appellant] filed a pro se Motion to
       Withdraw Guilty Plea which included a request to dismiss plea
       counsel.    On March 3, 2015, the [c]ourt issued an order
       scheduling a hearing on the motion for April 16, 2015, granting
       [Appellant’s] request to dismiss plea counsel, and appointing the
       public defender’s office to represent [Appellant] in pursuing [his]
       Motion to Withdraw Guilty Plea. On March 10, 2015, a public
       defender entered her appearance. Plea counsel filed a motion to
       formally withdraw from the case on March 31, 2015, which the
       [c]ourt granted on April 6, 2015.         … On June 1, 2015,
       [Appellant] filed, and the [c]ourt granted, a motion for an
       extension of time pursuant to Pa.R.Crim.P. 720(B)(3)(b). On
____________________________________________


1
  The trial court sets forth a detailed discussion of the facts of Appellant’s
crimes, which need not be reproduced herein for purposes of our review.
See Trial Court Opinion (TCO), 9/9/15, at 1-4.



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      June 25, 2015, [Appellant] filed a Supplemental Post Sentence
      Motion.    After multiple continuances due to plea counsel’s
      unavailability to testify, a hearing on the motion was held on
      June 26, 2015. By order of July 2, 2015, the [c]ourt denied the
      motion. [Appellant] filed a timely notice of appeal on July 7,
      2015. The same date, this [c]ourt issued a [Pa.R.A.P.] 1925(b)
      Order for a Concise Statement. [Appellant] has since complied
      with that request.

TCO at 5-6.

      On appeal, Appellant presents two issues for our review:

      [I.] Whether the trial court abused its discretion in denying
      Appellant[’s] … post-sentence motion to withdraw his guilty plea
      where the range of sentences of which he was informed when
      pleading guilty were based on a prior record score of two (2) but
      [he] learned at sentencing that his prior record score was
      actually five (5) resulting in a substantial difference [in the
      applicable] sentence guidelines and where Appellant … testified
      that he would not have pled guilty had he known the correct
      range of sentences[.]

      [II.] Whether the trial court abused its discretion in denying
      Appellant[’s] … post[-]sentence motion challenging the
      discretionary aspects of sentencing[.]

Appellant’s Brief at 10 (footnote and unnecessary capitalization omitted).

      In Appellant’s first issue, he challenges the trial court’s denial of his

post-sentence motion to withdraw his guilty plea.

      [P]ost-sentence motions for withdrawal are subject to higher
      scrutiny since courts strive to discourage entry of guilty pleas as
      sentence-testing devices. A defendant must demonstrate that
      manifest injustice would result if the court were to deny his post-
      sentence motion to withdraw a guilty plea. Manifest injustice
      may be established if the plea was not tendered knowingly,
      intelligently, and voluntarily. In determining whether a plea is
      valid, the court must examine the totality of circumstances
      surrounding the plea. A deficient plea does not per se establish
      prejudice on the order of manifest injustice.




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Commonwealth v. Broaden, 980 A.2d 124, 129 (Pa. Super. 2009)

(internal citations and quotation marks omitted).

      Here, Appellant contends that a manifest injustice will result if he is

not permitted to withdraw his plea because it was not knowingly,

intelligently, and voluntarily entered.   Appellant premises his claim on the

fact that, at the plea hearing, the Commonwealth informed him that he had

a prior record score (PRS) of 2, and stated the applicable guideline ranges

for each of Appellant’s offenses, based on that PRS. See N.T. Guilty Plea,

9/30/14, at 3-5.     As Appellant explains, the standard guideline ranges

announced by the Commonwealth at the plea proceeding totaled an

aggregate range of 201 to 295 months, or 16.75 to 24.5 years. According

to Appellant, he therefore believed, when he entered his plea, that he faced

a “total possible sentence” of 16.75 to 24.5 years’ imprisonment.        See

Appellant’s Brief at 12.

      However, at the sentencing hearing, Appellant was informed that his

PRS had been miscalculated, and it was actually a 5. Appellant states that

the corrected PRS meant that he “was now facing” an “aggregate[,]

standard range sentence” of 28 to 36 years’ incarceration.        Id. at 13.

Appellant maintains that, “[u]tilizing the guideline ranges announced at

sentencing, [the trial court] imposed a total sentence of eighteen (18) to

thirty-six (36) years[’ incarceration], despite the fact that when [Appellant]

pled guilty, [he] – and everyone else in the court – believed that the

guideline ranges aggregated to a total of 16.75-24.5 years.” Id. Appellant

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claims that his misunderstanding about the applicable PRS and standard

guideline   ranges   renders      his   decision   to   plead   guilty   unknowing,

unintelligent, and involuntary.

      Appellant seems to interpret the sentencing guideline ranges as

providing a minimum and maximum sentence.                 This is clearly incorrect.

“The Sentencing Guidelines, located at 204 Pa.Code § 303 et seq.,

recommend ranges of minimum sentences based on the type of offense,

the defendant’s prior criminal history, and a variety of aggravating and

mitigating factors.” Commonwealth v. Yuhasz, 932 A.2d 1111, 1118 (Pa.

2007) (emphasis added).        Therefore, with a PRS of 2, Appellant faced an

aggregate, standard range minimum sentence of 16.75 to 24.5 years, not

a 16.75 year minimum and 24.5 year maximum sentence.                      Appellant

received an aggregate, minimum sentence of 18 years’ incarceration, which

was within the standard guideline range applicable to Appellant if his PRS

had been 2, and well below the standard guideline range for his PRS of 5.

      Additionally, the court informed Appellant of the statutory maximum

terms he faced for each offense, and Appellant indicated that he understood.

See N.T. Guilty Plea, 9/30/14, at 9-11.       Thus, the record demonstrates that

Appellant “fully comprehended the maximum punishment that might be

imposed for his conduct” when he entered his plea.              Commonwealth v.

Kulp, 382 A.2d 1209, 1211 (Pa. 1978). The court also stressed to Appellant

that there was no agreement regarding the length of sentence the court

could impose, and that it could direct Appellant’s sentences for each offense

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to run either concurrently or consecutively. N.T. Guilty Plea at 9, 10. Again,

Appellant indicated that he understood. Id. at 9, 10. Based on this record,

Appellant has failed to demonstrate that a manifest injustice would result by

not permitting him to withdraw his plea based on the error regarding the

appropriate PRS. Accordingly, Appellant’s first issue is meritless.

      In Appellant’s second issue, he challenges the discretionary aspects of

his sentence.

      A challenge to the discretionary aspects of a sentence must be
      considered a petition for permission to appeal, as the right to
      pursue such a claim is not absolute. When challenging the
      discretionary aspects of the sentence imposed, an appellant
      must present a substantial question as to the inappropriateness
      of the sentence. Two requirements must be met before we will
      review this challenge on its merits. First, an appellant must set
      forth in his brief a concise statement of the reasons relied upon
      for allowance of appeal with respect to the discretionary aspects
      of a sentence. Second, the appellant must show that there is a
      substantial question that the sentence imposed is not
      appropriate under the Sentencing Code. That is, [that] the
      sentence violates either a specific provision of the sentencing
      scheme set forth in the Sentencing Code or a particular
      fundamental norm underlying the sentencing process.           We
      examine an appellant’s [Pa.R.A.P.] 2119(f) statement to
      determine whether a substantial question exists. Our inquiry
      must focus on the reasons for which the appeal is sought, in
      contrast to the facts underlying the appeal, which are necessary
      only to decide the appeal on the merits.

Commonwealth v. Ahmad, 961 A.2d 884, 886-87 (Pa. Super. 2008)

(citations, quotation marks and footnote omitted; emphasis in original).

      Here, Appellant has included a Rule 2119(f) statement, contending

“that the sentence imposed is manifestly excessive and that the trial court

failed to properly consider the mitigating circumstances presented in the


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[p]re[-s]entence [i]nvestigation and at sentencing.” Appellant’s Brief at 19.

Appellant states that, “[m]ore specifically, the sentencing court failed to

consider [his] … youth, background, admissions to police, cooperation with

law enforcement in unrelated cases, and the fact that he had been actively

misled at the time of his guilty plea as to the sentence he could be facing.”

Id. Appellant cites Commonwealth v. Raven, 97 A.3d 1244 (Pa. Super.

2014), appeal denied, 105 A.3d 736 (Pa. 2014), to support his claim that his

argument presents a substantial question.        After reviewing Raven, we

agree.    See id. at 1253 (stating “this Court has held that an excessive

sentence claim—in conjunction with an assertion that the court failed to

consider mitigating factors—raises a substantial question”).2

____________________________________________


2
   We note that in the argument portion of his brief, Appellant briefly
contends that his sentence must be vacated because, at the hearing on his
post-sentence motion, the court exhibited “a bias against Appellant … and an
overt disdain for the argument being advanced.” Appellant’s Brief at 25.
Appellant did not raise this claim in his Rule 2119(f) statement. He also did
not assert, in his Rule 1925(b) statement, that the court’s ostensible bias at
the post-sentence motion hearing compels us to vacate his sentence;
instead, Appellant stated only that the court should recuse itself for this
reason. See Appellant’s Rule 1925(b) Statement, 7/27/15, at 6 (“Appellant
also respectfully seeks recusal due to the bias shown by the court during
post-sentence motions.”). Consequently, we decline to review Appellant’s
waived claim pertaining to the court’s purported bias.         See Pa.R.A.P.
1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived.”); see
also Commonwealth v. Stewart, 867 A.2d 589, 592 (Pa. Super. 2005)
(stating that when an appellant fails to include a Rule 2119(f) statement,
and the Commonwealth does not object, this Court may deny allowance of
appeal of discretionary aspects of the appellant’s sentence) (citation
omitted).



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      In reviewing the merits of Appellant’s sentencing claim, we apply the

following standard:

      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.

Raven, 97 A.3d at 1253 (quoting Commonwealth v. Shugars, 895 A.2d

1270, 1275 (Pa. Super. 2006)).

      In the argument portion of his brief, Appellant asserts that the “court

abused its discretion by imposing consecutive sentences which resulted in an

aggregate sentence that is manifestly excessive and unreasonable….”

Appellant’s Brief at 25.   Appellant then avers “that the sentencing court

failed to take into consideration certain mitigating circumstances[,]” such as

Appellant’s “youth and his acceptance of responsibility by pleading guilty to

the charges, rather than going to trial.” Id. at 26. He also contends that his

misunderstanding of what sentencing guidelines would apply to his case

constitutes a “mitigating fact that should have been taken into consideration

by the sentencing court when ruling on his post-sentence motion for

resentencing.” Id.

      After reviewing the record of Appellant’s sentencing hearing, we

ascertain no abuse of discretion by the court.         At the start of that

proceeding, the court acknowledged that Appellant’s PRS was 5, and stated


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the guideline ranges applicable to each of Appellant’s offenses using that

PRS.   See N.T. Sentencing, 2/3/15, at 8-10.      Appellant did not raise any

issue pertaining to the validity of his plea after being informed of the correct

PRS. The court then heard,

       testimony of Detective Adam Schurr of the Norristown Police
       Department who outlined [Appellant’s] cooperation in identifying
       males involved in the home invasion robbery [in one of the cases
       for which Appellant pled guilty]. (N.T., Sentencing, 2/3/15, pg.
       24). Both men ultimately pled guilty. Id. at 26. As a result of
       this cooperation, [Appellant] was moved to Chester County
       Prison for his safety. Id. at 25. The Defense also presented the
       testimony of [Appellant’s] father and grandmother who spoke of
       his childhood and his drug problems as well as those of his
       parents. Id. at 37-49.

TCO at 13.

       Prior to imposing Appellant’s sentence, the court provided a lengthy

statement of its reasons for fashioning his term of incarceration. See N.T.

Sentencing, 2/3/15, at 68-77. Notably, the court stated that it considered

all of the testimony presented at the hearing, and the pre-sentence

investigation report. The court also declared:

             The court does not turn a blind eye on the defendant that
       appears before it for sentencing. And one of the elements of a
       sentencing is the rehabilitative potential of the defendant, the
       age of the defendant, the defendant’s psychosocial history, the
       defendant’s history with addiction and/or drug abuse. And I
       have factored them all in.

Id. at 68-69. The court went on to discuss the seriousness of Appellant’s

“seven separate cases[,]” which the court concluded had “exacted a serious

toll of destruction and near death, pure and simple.”          Id. at 69, 70.

Ultimately, the court fashioned “an aggregate, standard range sentence of

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18-36 years, which reflects the seriousness of [Appellant’s] crimes as well as

[the] [c]ourt’s consideration of the foregoing factors.” TCO at 14.

      The record, as a whole, is sufficient to show that the court considered

all the pertinent mitigating circumstances, and acted within its discretion in

imposing consecutive terms of incarceration.         Accordingly, Appellant’s

challenge to the discretionary aspects of his sentence is meritless.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/2016




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