J-S79019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ALEXIS RODRIGUEZ                           :
                                               :
                                               :   No. 2326 EDA 2017

              Appeal from the Judgment of Sentence May 3, 2016
     In the Court of Common Pleas of Northampton County Criminal Division
                       at No(s): CP-48-CR-0004038-2015


BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.

MEMORANDUM BY LAZARUS, J.:                           FILED FEBRUARY 13, 2018

        Alexis Rodriguez appeals, nunc pro tunc, from his judgment of sentence,

entered in the Court of Common Pleas of Northampton County, after he

entered a plea of nolo contendere to one count of aggravated assault.1 Upon

review, we affirm.

        On August 11 and 12, 2015, Rodriguez repeatedly punched and kicked

his roommate and paramour, Cathleen Baum, in her head, causing her to

suffer a four-millimeter-thick subdural hematoma, or “brain bleed,” from

which she will likely suffer lifelong consequences, including memory problems,

vertigo, nausea, and partial blindness. Rodriguez was initially charged with

aggravated assault, simple assault, recklessly endangering another person,

and harassment. On the day his trial was scheduled, May 3, 2016, Rodriguez

____________________________________________


1   18 Pa.C.S.A. § 2702(a)(1).
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entered a plea        of   nolo    contendere    to   aggravated   assault   and   the

Commonwealth agreed to drop the remaining charges.                   There was no

agreement as to sentencing.           Through counsel, Rodriguez waived a pre-

sentence investigation (“PSI”) and was sentenced immediately to 36 to 240

months of incarceration.          On May 5, 2016, Rodriguez filed post-sentence

motions to invalidate his plea and reconsider his sentence, both of which the

court denied after oral argument.

        On July 8, 2016, Rodriguez filed a notice of appeal to this Court. Due

to deficiencies in Rodriguez’s counseled brief, we dismissed his appeal. On

April 25, 2017, Rodriguez filed a pro se petition under the Post Conviction

Relief Act.2 The PCRA court appointed counsel, who filed an amended petition

alleging ineffectiveness of appellate counsel. On June 26, 2017, the PCRA

court granted Rodriguez relief and reinstated his appellate rights, nunc pro

tunc. This timely nunc pro tunc appeal follows, in which Rodriguez raises the

following issues for our review:

        1. Whether [Rodriguez’s] plea was knowing, intelligent, and
           voluntary?

        2. Whether [Rodriguez’s] sentence of 3 years to 20 years
           constitutes a manifest abuse of discretion where the court
           failed to formulate his sentence as required by . . . 42 Pa.C.S.A.
           § 9721(b)[,] where no [PSI] was ordered; [. . . 42 Pa.C.S.A. §
           9731]; and no consideration of the particular circumstances,
           character and rehabilitative needs of [Rodriguez] were detailed
           in the court’s sentencing determination?


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2   42 Pa.C.S.A. §§ 9541-9546.

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      3. Whether [Rodriguez’s] sentence of 3 years[’] to 20 years[’]
         incarceration violates the general sentencing provisions of . . .
         42 Pa.C.S.A. § 9756(b) where [Rodriguez’s] maximum
         sentence is 6.67 times the minimum?

Brief of Appellant, at 3 (reordered for ease of disposition).

      Rodriguez first claims that his nolo contendere plea was invalid, in that

it was not entered knowingly, intelligently and voluntarily.      In particular,

Rodriguez claims that the following factors affected the validity of his plea:

(1) over the two days prior to his plea, he had been placed in a behavioral

housing unit as a result of his bi-polar disorder; (2) while in the behavioral

housing unit, he was “cut off from the support of his family and was unable to

discuss the relative merits of proceeding to trial” with them, see Brief of

Appellant, at 16; (3) he entered a plea in the hope that he would be released

from prison before his terminally-ill mother died; (4) he was afraid of the

effect the stress of seeing him on trial would have on his mother; (5) he was

being physically assaulted and threatened by other inmates, whom he

believed had been contacted by the victim’s family and falsely informed that

Rodriguez had been arrested for sexually assaulting a minor; (6) he believed

that by entering a plea, he could prove that he didn’t sexually abuse a minor;

(7) he entered his plea less than two hours after learning the Commonwealth

would be permitted to introduce evidence related to an incident that occurred

nearly two years prior to the incidents that led to his arrest.    As a result,

Rodriguez claims that manifest injustice would result if his plea were allowed

to stand. Rodriguez is entitled to no relief.



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      We begin by noting that, when reviewing a trial court’s denial of a

motion to withdraw a guilty plea, we will not disturb the court’s decision absent

an abuse of discretion. Commonwealth v. Miller, 748 A.2d 733, 735 (Pa.

Super. 2000).

      “[I]n terms of its effect upon a case, a plea of nolo contendere is
      treated the same as a guilty plea.” [] Miller, 748 A.2d [at] 735
      [] (citing Commonwealth v. Boatwright, [] 590 A.2d 15, 19
      ([Pa. Super.] 1991)). Thus, as with a guilty plea, in order for a
      defendant to prevail on a post sentence motion to withdraw a plea
      of nolo contendere, requires that the defendant demonstrate
      manifest injustice. Commonwealth v. Jefferson, 777 A.2d
      1104, 1107 (Pa. Super. 2001). Manifest injustice can be shown if
      the defendant establishes that he or she did not tender the plea
      voluntarily. Id.

Commonwealth v. Lewis, 791 A.2d 1227, 1230–31 (Pa. Super. 2002).

      Pennsylvania Rule of Criminal Procedure 590 governs the entry of pleas

of guilty and nolo contendere and provides, in relevant part, as follows:

      (A) Generally

         (1) Pleas shall be taken in open court.

         (2) A defendant may plead not guilty, guilty, or, with the
         consent of the judge, nolo contendere. If the defendant
         refuses to plead, the judge shall enter a plea of not guilty
         on the defendant's behalf.

         (3) The judge may refuse to accept a plea of guilty or nolo
         contendere, and shall not accept it unless the judge
         determines after inquiry of the defendant that the plea is
         voluntarily and understandingly tendered. Such inquiry shall
         appear on the record.

      (B) Plea Agreements

         (1) When counsel for both sides have arrived at a plea
         agreement, they shall state on the record in open court, in
         the presence of the defendant, the terms of the agreement,

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        unless the judge orders, for good cause shown and with the
        consent of the defendant, counsel for the defendant, and
        the attorney for the Commonwealth, that specific conditions
        in the agreement be placed on the record in camera and the
        record sealed.

        (2) The judge shall conduct a separate inquiry of the
        defendant on the record to determine whether the
        defendant understands and voluntarily accepts the terms of
        the plea agreement on which the guilty plea or plea of nolo
        contendere is based.

Pa.R.Crim.P. 590. In order to ensure that a plea of nolo contendere has been

tendered knowingly and voluntarily, the trial judge must inquire, at a

minimum, into the following six areas:

     (1) Does the defendant understand the nature of the charges to
     which he or she is pleading guilty or nolo contendere?

     (2) Is there a factual basis for the plea?

     (3) Does the defendant understand that he or she has the right to
     trial by jury?

     (4) Does the defendant understand that he or she is presumed
     innocent until found guilty?

     (5) Is the defendant aware of the permissible range of sentences
     and/or fines for the offenses charged?

     (6) Is the defendant aware that the judge is not bound by the
     terms of any plea agreement tendered unless the judge accepts
     such agreement?


Pa.R.Crim.P. 590, Comment.

     A court is free to consider the totality of the circumstances surrounding

the plea. Commonwealth v. Allen, 732 A.2d 582, 588–89 (Pa. 1999). In

doing so, a trial court may consider a wide array of relevant evidence

including, but not limited to, transcripts from other proceedings, off-the-

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record communications with counsel, and written plea agreements.         Id. at

589. Moreover, it is well settled that a criminal defendant who elects to plead

guilty has a duty to answer questions truthfully. Commonwealth v. Myers,

642 A.2d 1103, 1107 (Pa. Super. 1994), citing Commonwealth v. Cappelli,

489 A.2d 813, 819 (Pa. Super. 1985) (en banc). Therefore, “[a] defendant

will not be permitted to postpone the final disposition of his case by lying to

the court concerning his culpability and thereafter withdraw his plea of guilty

by contradicting his prior testimony and asserting innocence.” Id., quoting

Commonwealth v. Cole, 564 A.2d 203, 206 (Pa. Super. 1989) (en banc).

The mere fact that a defendant was “under pressure” at the time he entered

a guilty plea will not invalidate the plea, absent proof that he was incompetent

at the time the plea was entered. Commonwealth v. Egan, 469 A.2d 186,

189 (Pa. Super. 1983) (en banc).

      Here, Rodriguez’s claims on appeal contradict his own written and oral

assertions made at the time he entered his plea.         Rodriguez signed an

extensive written plea colloquy in which he acknowledged the voluntariness

of his plea and his understanding of the rights he was waiving.           While

Rodriguez acknowledged that he suffered from bipolar disorder, he specifically

denied that he was currently being treated for a mental illness, or that a

mental illness would affect his ability to understand his rights or impact the

voluntary nature of his plea. To the contrary, Rodriguez affirmed that he was

entering into the plea of his own free will.


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      The court also conducted an extensive oral colloquy with Rodriguez in

which he acknowledged having had “ample opportunity” to discuss the plea

with his counsel and that he understood everything in the written colloquy.

See N.T. Sentencing, 5/3/16, at 2-3. The court advised him of the maximum

penalty for aggravated assault and Rodriguez acknowledged that the court

had not agreed to any particular sentence. The court also confirmed that

Rodriguez understood the nature of the charges to which he was pleading nolo

contendere, the factual basis for his plea, his right to a trial by jury, and the

presumption of innocence.     In sum, the court discharged its obligation to

ensure a knowing, voluntary and intelligent plea pursuant to Rule 590.

Rodriguez’s   subsequent    dissatisfaction   with   his   sentence   does   not

retroactively invalidate a plea he entered knowingly and of his own free will.

Moreover, while the factors he raises, such as his mother’s illness, may

certainly have influenced his decision to plead nolo contendere, they do not

establish the manifest injustice required to prevail on a post-sentence motion

to withdraw. Lewis, supra. As our Supreme Court has noted, “[a] defendant

may [enter a plea] for any reason: to shield others, avoid further exposure,

to diminish the penalty, to be done with the matter, or any secret reason that

appeals to his needs.” Commonwealth v. Anthony, 475 A.2d 1303, 1307

(Pa. 1984). So long as he does so intelligently and of his own free will, the

plea will stand. Because Rodriguez has failed to establish that his plea was

not entered voluntarily and knowingly, he is entitled to no relief.


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     Rodriguez’s final two claims concern the discretionary aspects of his

sentence. Such a claim does not entitle an appellant to review as a matter of

right. Commonwealth v. Swope, 123 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, Rodriguez filed a post-sentence motion raising his sentencing

claim, followed by a timely notice of appeal, nunc pro tunc, 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.

     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). “A substantial question exists only when the appellant

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


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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. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013)

(citation and quotation marks omitted).

        In his Rule 2119(f) statement, Rodriguez asserts that the sentencing

court failed to state its reasons on the record, did not order a PSI, and “focused

almost entirely on the egregious conduct of [the d]efendant as well as the

seriousness of the injury suffered by the victim.” Brief of Appellant, at 10.

Accordingly, Rodriguez argues, the court failed to comply with 42 Pa.C.S.A. §

9721(b).3      Rodriguez also asserts that the court violated the general




____________________________________________


3   Section 9721(b) requires, in relevant part, as follows:

        (b) General standards.--In selecting from the alternatives set
        forth in subsection (a), the court shall follow the general principle
        that the sentence imposed should call for confinement that is
        consistent with the protection of the public, the gravity of the
        offense as it relates to the impact on the life of the victim and on
        the community, and the rehabilitative needs of the defendant.
        The court shall also consider any guidelines for sentencing and
        resentencing adopted by the Pennsylvania Commission on
        Sentencing[.] In every case in which the court imposes a
        sentence for a felony or misdemeanor, . . . the court shall make
        as a part of the record, and disclose in open court at the time of
        sentencing, a statement of the reason or reasons for the sentence
        imposed.

42 Pa.C.S.A. § 9721(b).




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sentencing provisions of 42 Pa.C.S.A. § 9756(b), 4 where his maximum

sentence is 6.67 times his minimum.

       We have previously held that a claim that the sentencing court failed to

state adequate reasons on the record for the sentence imposed presents a

substantial question. See Commonwealth v. Goggins, 748 A.2d 721, 728

(Pa. Super. 2000). Moreover, where a sentencing court fails to consider all

relevant factors, but instead bases its sentence wholly upon the seriousness

of the offense, a substantial question is raised.             Commonwealth v.

Lawrence, 960 A.2d 473 (Pa. Super. 2008); Commonwealth v. Robinson,

931 A.2d 15 (Pa. Super. 2007). Finally, we have previously found a challenge

to a maximum sentence raises a substantial question where the appellant

alleged that the sentencing court failed to take his rehabilitative needs into

consideration     and    that    the   sentence    was   disproportionate   to   the

circumstances when adjudged as a whole. Commonwealth v. Coulverson,

34 A.3d 135 (Pa. Super. 2011). Accordingly, we will address the merits of

Rodriguez’s claims.

       Our review of the discretionary aspects of a sentence are statutorily

constrained. Section 9781 of the Sentencing Code provides, in relevant part:

       c) Determination on appeal.—The appellate court shall vacate the
       sentence and remand the case to the sentencing court with
       instructions if it finds:

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4Section 9756(b) provides that “[t]he court shall impose a minimum sentence
of confinement which shall not exceed one-half of the maximum sentence
imposed.” 42 Pa.C.S.A. § 9756(b).

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         (1) the sentencing court purported to sentence within the
         sentencing   guidelines   but   applied  the   guidelines
         erroneously;

         (2) the sentencing court sentenced within the sentencing
         guidelines but the case involves circumstances where the
         application of the guidelines would be clearly unreasonable;
         or

         (3) the sentencing court sentenced outside the sentencing
         guidelines and the sentence is unreasonable.

      In all other cases the appellate court shall affirm the sentence
      imposed by the sentencing court.

      (d) Review of record.—In reviewing the record the appellate court
      shall have regard for:

         (1) The nature and circumstances of the offense and the
         history and characteristics of the defendant.

         (2) The opportunity of the sentencing court to observe the
         defendant, including any presentence investigation.

         (3) The findings upon which the sentence was based.

         (4) The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(c)-(d).

      Where an appellant is sentenced within the guidelines, we may reverse

only if application of the guidelines is clearly unreasonable. Commonwealth

v. Macias, 968 A.2d 773, 777 (Pa. Super. 2009). The term “unreasonable,”

while not defined in the Sentencing Code, generally means a decision that is

either irrational or not guided by sound judgment. Id.

      Here, Rodriguez was convicted of aggravated assault, serious bodily

injury, as a felony of the first degree, which carries an offense gravity score

of 11.   Rodriguez’s prior record score was 0.     Accordingly, the standard

guidelines sentencing range was 36 to 54 months.         The court sentenced


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Rodriguez to 36 to 240 months’ incarceration. Thus, although Rodriguez’s

maximum sentence is the statutory maximum, his minimum sentence actually

falls at the very bottom end of the standard range of the guidelines.

Nevertheless, such a sentence may be vacated where, based on the

circumstances of the case, it is clearly unreasonable. See Coulverson, 34

A.3d at 146.

       We begin by observing that, although Rodriguez complains that the

sentencing court was not in possession of a PSI, Rodriguez opted to waive the

preparation of a PSI in favor of proceeding immediately to sentencing after

entering his plea. Moreover, Rodriguez did not raise a claim regarding the

absence of a PSI in his post-sentence motion. Accordingly, Rodriguez has

failed to preserve any claim with respect to the court’s failure to order a PSI.

See Commonwealth v. Schmidt, 165 A.3d 1002, 1007 (Pa. Super. 2017)

(sentencing claim waived where not set forth in, or fairly suggested by, post-

sentence motion). We further note that the argument portion of Rodriguez’s

brief addressing his sentencing claims consists of fewer than 2½ pages and

focuses heavily on the absence of a PSI, which he has waived, as well as a

case which is inapposite.5          “[I]t is a well settled principle of appellate
____________________________________________


5Rodriguez cites our decision in Commonwealth v. Edwards, 906 A.2d 1225
(Pa. Super. 2006), and argues that it supports his claim that a maximum
sentence of 6.67 times the minimum “raises an issue of arguable merit.” Brief
of Appellant, at 14. We do not disagree and, indeed, have concluded that
Rodriguez’s claim is of arguable merit such that it warrants appellate review.
However, in order to obtain ultimate relief, Rodriguez’s claim must possess



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jurisprudence that undeveloped claims are waived and unreviewable on

appeal.”      Commonwealth v. Clayton, 816 A.2d 217, 221 (Pa. 2002)

Nevertheless, we decline to find waiver and proceed to address Rodriguez’s

sentencing claim.

       Rodriguez claims that the court failed to state adequate reasons for its

sentence and focused almost entirely on his conduct and the injuries to the

victim and, in imposing the statutory maximum as his maximum sentence,

imposed an excessive sentence. Based upon our review of the record as a

whole, we disagree.

       As noted supra, Rodriguez waived the preparation of a PSI. However,

at sentencing, his counsel familiarized the court with Rodriguez’s relevant

background information, including his lack of a prior record, the fact that he

has five children, two of whom are minors, and the fact that he was the

primary caretaker for his ill parents. In addition, the court afforded Rodriguez

the opportunity to make a statement on his own behalf. Rodriguez allocated

as follows:

       THE DEFENDANT: I’d like to say that all I ever did was try to raise
       that family Christ like. I always took them to church. I raised the
       kids like they were my own. I never had any problems with any
       of them.

       What bothers me is I love the Lord so much, and my only guilt is
       the fact that I love Jesus so much I took [the victim] from the
       street. She was out on the street when I met her. She had two
____________________________________________


more than “arguable merit.” Thus, Edwards is of no assistance to Rodriguez
in convincing this Court that he is entitled to vacatur of his sentence as
excessive.

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      kids out there. They came and lived with me. I worked at the
      soup kitchen. And this is what I get for helping somebody out
      there that has nobody. She was with me because of the problems
      that were happening out there on the street from her.

      She was on drugs. I tried to help her. I did everything possible
      for this person and I failed. I’m sorry. I did. Because I love Jesus
      so much. She had nobody before I met her. Not even her mom
      helped her move. I didn’t know the girl when she knocked on my
      door with two children. I felt so bad. Why would these two
      children be in the middle of Allentown? I live in Whitehall. I just
      wanted to give her a chance. She was never given a chance.

      If you heard the stories that she was raised up with being with her
      family you would be horrified. Her mother put her through so
      much, and I believe that that letter she has right there was written
      for this the fact to keep me – I’m the one that took her to get
      help. She said, Alexis, I love you for getting me help, for putting
      her into rehab. She never got a chance. All those years she was
      on drugs she never had a chance to go to rehab. I’m the one that
      took her to the hospital.

      Why would I take her to the hospital if I had anything to do with
      it? I was trying to get her help because every time she went back
      with her mother she’d come back to me hurt. It is wrong because
      all I was doing was taking care of my mom and dad. This is so
      unfair to be put on the spot. I’m getting long in jail because I
      don’t want to see my mom die without me. That’s all.

N.T. Sentencing, 5/3/16, at 18-20.

      In imposing sentence, the court “took into account the sentencing

guidelines, [Rodriguez’s] prior record score of zero, the effect upon the victim

and the community, [Rodriguez’s] rehabilitative needs, and other relevant

factors including [Rodriguez’s] willingness to accept responsibility, or perhaps

more accurately, his unwillingness to accept responsibility.”       Trial Court

Opinion, 8/17/16, at 12. The court was particularly distressed by Rodriguez’s

statement during allocution, which the court characterized as “[taking] the

opportunity to disparage the victim and her family” and “express[ing]

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sympathy for only himself,” a description we do not find to be inapt. Id. at

14. The court also noted Rodriguez’s unwillingness to take responsibility for

his actions. While the severity of the crime and its impact on the victim, as

well as upon Rodriguez’s family, were important components of the trial

court’s ultimate sentencing determination,6 under the totality of the

circumstances, we do not conclude that a maximum sentence of 240 months

is “clearly unreasonable.” See 42 Pa.C.S.A. § 9781(c). Rather, the record

as a whole reflects due consideration by the court of the statutory

considerations enunciated in section 9721(b). Accordingly, we find no abuse

of discretion on the part of the trial court.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/13/18




____________________________________________


6 Prior to imposing sentence, the court noted the fact that the victim suffered
a stress-related medical emergency while in the courtroom waiting to read her
victim impact statement. See N.T. Sentencing, 5/3/16, at 23. In its opinion,
the court also stated that it had “observed [Rodriguez] menace the victim in
the courtroom by staring at her.” Trial Court Opinion, 8/17/16, at 13 n.9.

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