J-S43005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA
                             Appellee

                        v.

    MICHAEL VINCENT FERRARA

                             Appellant                 No. 1187 WDA 2017


          Appeal from the Judgment of Sentence Entered July 11, 2017
                  In the Court of Common Pleas of Erie County
               Criminal Division at No.: CP-25-CR-0002883-2016


BEFORE: STABILE, DUBOW, NICHOLS, JJ.

MEMORANDUM BY STABILE, J.:                         FILED OCTOBER 22, 2018

        Appellant Michael Vincent Ferrara appeals from the July 11, 2017

judgment of sentence entered in the Court of Common Pleas of Erie County

(“trial court”), following his guilty plea to aggravated indecent assault, criminal

trespass and possession of an instrument of crime.1 Upon review, we affirm

in part and vacate in part.

        The facts and procedural history of this case are uncontested.          As

summarized by the trial court:

              On July 10, 2016, at approximately 5:45 a.m., Appellant
        entered the residence of [S.M.] in Albion, Pennsylvania through
        an unlocked window. The victim was sleeping when Appellant
        entered the residence. [S.M.] woke to find Appellant lying on top
        of her, touching her vagina and holding a knife to her neck.
        Following a brief struggle, the victim chased Appellant from the
        residence. Appellant dropped the knife to the floor as he fled. By


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1   18 Pa.C.S.A. §§ 3125(a)(4), 3503(a)(1)(ii), and 907(a), respectively.
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       information filed September 22, 2016, Appellant was charged as
       follows:

           Count One: Burglary

           Count Two: Aggravated Indecent Assault

           Count Three: Criminal Trespass

           Count Four: Possession of Instruments of Crime

           Count Five: Indecent Assault

            On October 6, 2016, Appellant entered a guilty plea at Count
       Two to Simple Assault which had been amended from Aggravated
       Indecent Assault, and Count Three, Criminal Trespass. Counts
       One, Four and Five were nolle prossed.
             On November 4, 2016, the Commonwealth filed a Motion to
       Vacate the Guilty Plea. In sum, the Commonwealth alleged that
       there was no valid plea agreement [because a “clerical error,”
       caused the plea sheet to include a Count for Simple Assault
       instead of Aggravated Indecent Assault]. On November 7, 2016,
       the [trial court] granted the Commonwealth’s Motion.2

              On January 26, 2017, Appellant entered [into another]
       guilty plea to Counts Two, Three and Four as originally charged.
       Counts One and Five were nolle prossed. On January 26, 2017,
       the [trial court] ordered the sexually violent predator (SVP)
       assessment.

              On July 11, 2017, following a hearing, the [trial court]
       designated Appellant as a sexually violent predator. Appellant
       was sentenced in the standard range of the sentencing guidelines
       to an aggregate [term] of seven to fourteen years of incarceration
       as follows:

           Count Two: Aggravated Indecent Assault – five to ten
           years of incarceration, consecutive to any other sentence.

           Count Three: Criminal Trespass – one to two years of
           incarceration, consecutive to Count Two.

           Count Four: Possession of Instruments of Crime – one to
           two years of incarceration, consecutive to Count Three.

             On July 20, 2017, Appellant filed post-sentence motions
       requesting the [trial court] to vacate the guilty plea and
       Appellant’s designation as a sexually violent predator and/or to
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2 Appellant did not appeal the grant of the Commonwealth’s motion to vacate
the guilty plea.

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      reduce the sentence. On August 7, 2017, the Commonwealth filed
      a response. On August 10, 2017, the [trial court] denied the post-
      sentence motions.

             On August 14, 2017, Appellant filed a notice of appeal from
      the judgment of sentence. On August 21, 2017, the [trial court]
      directed Appellant to file a [Pa.R.A.P.] 1925(b) [statement of
      errors complained of on appeal]. On August 23, 2017, Appellant
      filed a [Rule 1925(b) statement].


Trial Court Opinion, 12/4/17, at 1-3 (unnecessary capitalizations, footnotes

and internal citations omitted). In response, the trial court issued a Pa.R.A.P.

1925(a) opinion, concluding that Appellant’s assertions of error merit no relief.

      On appeal, Appellant raises three issues for our review:

      [I.] Whether the trial court erred in granting the Commonwealth’s
      motion to vacate [] Appellant’s guilty plea?

      [II.] Whether the trial court erred in finding [] Appellant to be a
      sexually violent predator by clear and convincing evidence?

      [III.] Whether the trial court abused its discretion in sentencing []
      Appellant and whether that . . . sentence is manifestly excessive,
      clearly unreasonable and inconsistent with the objectives of the
      sentencing code?

Appellant’s Brief at 3 (unnecessary capitalizations omitted).

      We address Appellant’s claims seriatim. Appellant first argues that the

trial court erred in granting the Commonwealth’s motion to vacate the October

6, 2016 guilty plea. Based on our review of the record, we need not address

the merits of this claim. As mentioned earlier, not only did Appellant fail to

challenge the trial court’s grant of the Commonwealth’s motion to vacate the

October 6, 2016 guilty plea, but he subsequently entered into a new guilty

plea on January 26, 2017, on which the instant judgment of sentence was

entered. In other words, because Appellant executed a new guilty plea on



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January 26, 2017, he waived all non-jurisdictional challenges. Indeed, it is

settled that by entering a guilty plea, a defendant waives his right to challenge

on direct appeal all non-jurisdictional defects, except the legality of the

sentence and the validity of the plea. Commonwealth v. Luketic, 162 A.3d

1149, 1159 (Pa. Super. 2017). Accordingly, we cannot review the trial court’s

grant of the Commonwealth’s motion to vacate the October 6, 2016 guilty

plea.

        Appellant next argues that, under Commonwealth v. Butler, 173 A.3d

1212 (Pa. Super. 2017), appeal granted, No. 47 WAL 2018, 2018 WL

3633945 (Pa. filed July 31, 2018), his SVP designation is unconstitutional.3

        As this Court has explained:

        Butler applied Commonwealth v. Muniz, 164 A.3d 1189 (Pa.
        2017), which held that the sexual offender requirements under
        the Sexual Offender Registration and Notification Act, including its
        SVP framework, constitute punishment. Butler determined that,
        as a result of Muniz, the SVP procedure is subject to the
        constitutional requirement that the facts constituting that
        punishment must be found by a fact-finder beyond a reasonable
        doubt. Thus, 42 Pa.C.S.A. § 9799.24(e)(3), which requires the
        trial court to find the relevant facts by clear and convincing
        evidence, was deemed unconstitutional. Id. at 1218.

Commonwealth v. Tighe, 184 A.3d 560, 583 (Pa. Super. 2018).

        Here, the Commonwealth concedes that Butler renders Appellant’s SVP

designation under SORNA illegal.          We agree with both parties that Butler

controls. Therefore, we vacate the July 11, 2017 order declaring Appellant as

SVP under SORNA, and remand this matter to the trial court to determine
____________________________________________


3 In light of our disposition, we need not address Appellant’s argument
challenging the sufficiency of the evidence underlying his SVP designation.

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what registration requirements apply to Appellant, and to provide him proper

notice thereof.

       Nonetheless, the Commonwealth invites us to uphold Appellant’s SVP

designation under the General Assembly’s recent amendments to SORNA in

response to Butler and Muniz.            Commonwealth’s Brief at 5.   Indeed, on

February 21, 2018, the General Assembly amended SORNA. See Act of Feb.

21, 2018, P.L. 27, No. 10 (“Act 10”).            Act 10 amended several existing

provisions of SORNA, and also added several new sections found at 42

Pa.C.S.A. §§ 9799-42, 9799.51-9799-75.              More recently, Governor Wolf

signed new legislation striking the Act 10 amendments and reenacting new

SORNA provisions, effective June 12, 2018. See Act of June 12, 2018, P.L.

1952, No. 29. We, however, decline to entertain the Commonwealth’s Act 10

argument, because Appellant was not sentenced under Act 10 or its recent

revisions when he was designated as an SVP on July 11, 2017. Accordingly,

any discussion or analysis of Act 10 or its revisions in the instant appeal would

be premature.

       We lastly address Appellant’s argument that the trial court abused its

discretion in sentencing him to seven to fourteen years’ imprisonment. 4 In
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4 When reviewing a challenge to the trial court’s discretion, our standard of
review is as follows:
       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. An abuse of discretion is
       more than just an error in judgment and, on appeal, the trial court
       will not be found to have abused its discretion unless the record



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support of his argument, Appellant points out that his aggregate sentence is

manifestly excessive because the trial court ordered his sentences to run

consecutively. He also argues that, in fashioning his sentence, the trial court

failed to take into account mitigating factors. Appellant’s Brief at 10-11.

       As noted earlier, “when a defendant enters a guilty plea, he or she

waives all defects and defenses except those concerning the validity of the

plea, the jurisdiction of the trial court, and the legality of the sentence

imposed.” Commonwealth v. Stradley, 50 A.3d 769, 771 (Pa. Super. 2012)

(citation omitted). “Our law presumes that a defendant who enters a guilty

plea was aware of what he was doing.             He bears the burden of proving

otherwise.” Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super.

2011) (citation omitted).        “However, when the plea agreement is open,

containing no bargained for or stated term of sentence, the defendant will not

be precluded from appealing the discretionary aspects of h[is] sentence.” 5

Commonwealth v. Roden, 730 A.2d 995, 997 n.2 (Pa. Super. 1999)

(citation omitted).

       It is well-settled that “[t]he right to appeal a discretionary aspect of

sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215, 1220
____________________________________________


       discloses that the judgment exercised was manifestly
       unreasonable, or the result of partiality, prejudice, bias, or ill-will.

Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012) (quoting
Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super. 2002)),
appeal denied, 64 A.3d 630 (Pa. 2013).
5 The record in this case reveals that Appellant entered into an open guilty
plea.

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(Pa. Super. 2011). Rather, where an appellant challenges the discretionary

aspects of a sentence, an appellant’s appeal should be considered as a petition

for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa.

Super. 2007). As we stated in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

      An appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction by satisfying a four-part test:
         [W]e conduct a four-part analysis to determine: (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, 42
         Pa.C.S.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)). Whether a particular issue constitutes a substantial question about

the appropriateness of sentence is a question to be evaluated on a case-by-

case basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.

2001), appeal denied, 796 A.2d 979 (Pa. 2002).

      Here, Appellant has satisfied the first three requirements of the four-

part Moury test. Appellant filed a timely appeal to this Court, preserved the

issue on appeal through his post-sentence motions, and included a Pa.R.A.P.




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2119(f) statement in his brief.6         We, therefore, need to determine only if

Appellant’s sentencing issues raise a substantial question.

       The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825,

828 (Pa. Super. 2007).         We have found that a substantial question exists

“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.” Commonwealth v. Phillips, 946 A.2d 103, 112

(Pa. Super. 2008) (citation omitted), appeal denied, 964 A.2d 895 (Pa.

2009).

       It is settled that this Court does not accept bald assertions of sentencing

errors. See Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super.

2006).    We consistently have recognized that bald excessiveness claims

premised on imposition of consecutive sentences do not raise a substantial

question for our review. See Commonwealth v. Caldwell, 117 A.3d 763,

769 (Pa. Super. 2015) (en banc) (stating, “[a] court’s exercise of discretion in

imposing a sentence concurrently or consecutively does not ordinarily raise a

substantial question[ ]”), appeal denied, 126 A.3d 1282 (Pa. 2015); see

also Commonwealth v. Ahmad, 961 A.2d 884, 887 n.7 (Pa. Super. 2008);
____________________________________________


6 Rule 2119(f) provides that “[a]n appellant who challenges the discretionary
aspects of a sentence in a criminal matter shall 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.” Pa.R.A.P. 2119(f).

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Commonwealth v. Pass, 914 A.2d 442, 446-47 (Pa. Super. 2006).

Appellant here claims only that, because the trial court ordered his sentences

to run consecutively, his aggregate sentence was harsh and excessive.

Consistent with the foregoing cases, we conclude that Appellant failed to raise

a substantial question with respect to his excessiveness claim premised on the

imposition of consecutive sentences.    See Commonwealth v. Fisher, 47

A.3d 155, 159 (Pa. Super. 2012) (“[A] bald assertion that a sentence is

excessive does not itself raise a substantial question justifying this Court’s

review of the merits of the underlying claim.”), appeal denied, 62 A.3d 378

(Pa. 2013); see also Commonwealth v. Bromley, 862 A.2d 598, 604 (Pa.

Super. 2004) (explaining defendant did not raise a substantial question by

merely asserting sentence was excessive when he failed to reference any

section of Sentencing Code potentially violated by the sentence), appeal

denied, 881 A.2d 818 (Pa. 2005).

      Even if we were to determine that Appellant’s discretionary aspect of

sentencing claim raised a substantial question, we still would conclude that he

is not entitled to relief.    “Although Pennsylvania’s system stands for

individualized sentencing, the court is not required to impose the ‘minimum

possible’ confinement.”      Moury, 992 A.2d at 171 (citation omitted).

“Generally, Pennsylvania law affords the sentencing court discretion to impose

its sentence concurrently or consecutively to other sentences being imposed

at the same time or to sentences already imposed.       Any challenge to the

exercise of this discretion ordinarily does not raise a substantial question.”

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Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013), appeal

denied, 77 A.3d 1258 (Pa. 2013); see also 42 Pa.C.S.A. § 9721(a)

(providing   that    the   court   may    impose   sentences   “consecutively    or

concurrently”); Commonwealth v. Johnson, 873 A.2d 704, 709 n.2 (Pa.

Super. 2005) (noting that challenges to the trial court’s discretion to impose

consecutive or concurrent sentences ordinarily does not raise a substantial

question), appeal denied, 887 A.2d 231 (Pa. 2005); Commonwealth v.

Hoag, 665 A.2d 1212, 1214 (Pa. Super. 1995) (stating that an appellant is

not entitled to a “volume discount” for his crimes by having all sentences run

concurrently).      “The imposition of consecutive, rather than concurrent,

sentences may raise a substantial question in only the most extreme

circumstances, such as where the aggregate sentence is unduly harsh,

considering the nature of the crimes and the length of imprisonment.” Moury,

992 A.2d at 171-72 (citation omitted).

      Instantly, Appellant seems to request a volume discount for pleading

guilty to multiple crimes, because he claims that he has accepted

responsibility, spared the victim the trauma of trial, and cooperated with the

Commonwealth throughout the case. Appellant’s Brief at 11. Beyond this,

Appellant articulates no other reasons why the consecutive sentences in this

case are harsh and excessive. Moreover, Appellant does not argue that his

aggregate sentence of seven to fourteen years’ imprisonment represents an

“extreme circumstance.” On the contrary, Appellant acknowledges that his

sentence for each crime was in the standard range of the guidelines.            Id.

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Thus, we conclude that the trial court acted within its discretion in imposing

consecutive sentences after reviewing the record and the presentence

investigation report (“PSI”) sub judice. We note that

            [w]here the sentencing court had the benefit of a [PSI], we
      can assume the sentencing court was aware of the relevant
      information regarding the defendant’s character and weighed
      those considerations along with mitigating statutory factors.
      Further, where a sentence is within the standard range of the
      guidelines, Pennsylvania law views the sentence as appropriate
      under the Sentencing Code.

Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa. Super. 2013) (citations

and internal quotation marks omitted), appeal denied, 76 A.3d 538 (Pa.

2013).   Here, the trial court provided the following rationale in support of

Appellant’s sentence:

      In fashioning the sentence, I am taking into consideration the
      statements of both counsel, the statement of the defendant, as
      well as the testimony of Brenda Manno, and the finding that you
      have been considered a [SVP]. I am taking into account the [PSI]
      which details the egregiousness of these crimes that you have
      committed as well as your prior record, which includes burglary,
      terroristic threats, numerous thefts, receiving stolen property,
      noting that you have received prior sentences and have been
      revoked from every sentence you received I think except for one.

            I’m also taking into account the fact that you have been
      diagnosed with an antisocial personality in conjunction with now
      you are a [SVP] and will be treated as such. I am also taking into
      account the guidelines as promulgated by the Pennsylvania
      Commission on Sentencing, and I further adopt the statements of
      the prosecutor today.

N.T. Sentencing, 7/11/17, at 30-31. Accordingly, we cannot conclude that

the trial court’s imposition of consecutive sentences rendered Appellant’s

aggregate sentence manifestly excessive sufficient to constitute an abuse of

discretion.


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         With respect to Appellant’s claim that the trial court failed to consider

mitigating factors, we have “held on numerous occasions that a claim of

inadequate consideration of mitigating factors does not raise a substantial

question for our review.” Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa.

Super. 2013) (quoting Commonwealth v. Downing, 990 A.2d 788, 794 (Pa.

Super. 2010)); see also Commonwealth v. Berry, 785 A.2d 994 (Pa. Super.

2001) (explaining allegation that sentencing court failed to consider certain

mitigating     factor   generally   does   not   raise   a    substantial    question);

Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545 (Pa. Super. 1995)

(“[a]n allegation that a sentencing [judge] ‘failed to consider’ or ‘did not

adequately consider’ certain factors does not raise a substantial question that

the sentence was inappropriate,”), appeal denied, 676 A.2d 1195 (Pa.

1996); Commonwealth v. Bershad, 693 A.2d 1303, 1309 (Pa. Super. 1997)

(finding absence of substantial question where appellant argued the trial court

failed    to   adequately   consider   mitigating   factors    and   to     impose   an

individualized sentence). Consistent with the foregoing cases, we conclude

that Appellant failed to raise a substantial question with respect to his claim

that the trial court gave inadequate consideration to mitigating factors.

         Even if we were to find a substantial question, Appellant still would not

have been entitled to relief. As stated above, where the sentencing court had

the benefit of a PSI, we can assume the sentencing court was aware of

relevant information regarding the defendant’s character and weighed those

considerations along with mitigating statutory factors. Griffin, supra. Here,

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the trial court sentenced Appellant to a standard range sentence, had the

benefit of a PSI, and explained its decision on the record. Thus, Appellant’s

claim fails.

      In sum, we affirm Appellant’s judgment of sentence in part and vacate

it insofar as he has been designated a SVP in violation of Butler. We remand

this case to the trial court for further proceeding consistent with this

Memorandum.

      Judgment of sentence affirmed in part and vacated in part.        Case

remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/2018




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