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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

ROBERTO GONZALEZ

                            Appellant                No. 3442 EDA 2014


          Appeal from the Judgment of Sentence September 24, 2012
               In the Court of Common Pleas of Monroe County
             Criminal Division at No(s): CP-45-CR-0002927-2011


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                      FILED NOVEMBER 16, 2015

        Roberto Gonzalez appeals from the judgment of sentence imposed by

the Court of Common Pleas of Monroe County.          After careful review, we

affirm.

        On October 4, 2011, Gonzalez shot Terrance Tyson in the face when

Tyson approached Gonzalez’s vehicle. During the course of a jury trial, on

May 17, 2012, Gonzalez pled nolo contendere to one count of aggravated

assault.1 At a sentencing hearing on September 24, 2012, counsel argued

that Gonzalez had acted in self-defense, and sought to have the court

consider this as a factor in sentencing.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 2702(a)(1).
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      At the conclusion of the hearing, the court sentenced Gonzalez to 7 to

14 years’ incarceration, plus costs and restitution. The Commonwealth and

Gonzalez each filed a timely motion for reconsideration. Gonzalez’s motion

contained the following averments:

         3. At his sentencing, [Gonzalez] presented evidence
         concerning his innocence regarding the underlying charges as
         well as the aggressive character of the victim.

         4. [Gonzalez] believes, and therefore avers, that the Court, if
         given the opportunity, might reconsider the extent to which
         such evidence augers for a lesser sentence.

Motion for Reconsideration of Sentence, 10/4/11, at 1.

      The Court held argument on October 22, 2012, during which counsel

for Gonzalez stated:

      Our position – Mr. Gonzalez just wanted to come back – and I’m
      not going to belabor the whole thing again. Mr. Gonzalez has
      maintained his innocence throughout. And, really, I think the
      reason he wanted us to return for – just as I put it in my motion,
      Your Honor, was just, you know, to give appropriate weight.

N.T. Motion for Reconsideration Hearing, 10/22/12, at 5. At the conclusion

of the hearing, the court denied the motions filed by Gonzalez and the

Commonwealth.

      On December 11, 2014, following the reinstatement of his appellate

rights nunc pro tunc, Gonzalez filed a timely notice of appeal.

      In response to an order from the trial court, Gonzalez filed a concise

statement of errors complained of on appeal which states, in relevant part:

      [Gonzalez] filed an appeal from the judgment of sentence nunc
      pro tunc, which right was reinstated by virtue of his filing of a


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     pro se petition seeking post-conviction relief. In that petition,
     [Gonzalez] raises the issue that after-discovered evidence may
     have changed the outcome of his trial. The nature of that
     evidence is that the victim in his case was the target of a drive
     by shooting in which another individual was killed, which tends
     to validate his claim at trial that his victim was a drug dealer,
     had violent tendencies and was involved in that dangerous
     culture. [Gonzalez] was acting in self-defense of the threats and
     actions made by the victim against him.

     After a jury had been impaneled in [Gonzalez’s] case, he
     seemingly abandoned this position and entered a plea of nolo
     contendere to Aggravated Assault. [Gonzalez’s] prior record
     score and offense gravity score was not set forth on his written
     guilty plea colloquy form. However, both at time of sentencing
     and at the hearing on the Commonwealth’s motion for
     reconsideration of sentence, [Gonzalez] repeated his claims of
     self-defense and professed innocence on that basis, admitting
     that he entered a nolo contendere plea simply to avoid the
     possibility of a harsher sentence.

     [Gonzalez’s] complained of errors are therefore twofold: (1) the
     sentence imposed was manifestly excessive and (2) that he did
     not make a knowing, voluntary and intelligent plea due to the
     fact that he maintained his innocence and claimed self-defense.
     Accordingly, the court should not have accepted his plea of nolo
     contendere, which has the same effect as a conviction and plea
     of guilty, as [Gonzalez] was apparently confused as to the
     nature and consequences of the plea as entered.

Concise Statement of [Errors] Complained of On Appeal, 1/9/15.

     The trial court filed its Rule 1925(a) opinion on February 5, 2015.

     On appeal, Gonzalez raises the following issues for our review:

     1. Whether the court should have accepted [Gonzalez’s] plea of
        nolo contendere as knowingly, voluntarily and intelligently
        made where the guilty plea form interchanges “nolo
        contendere” with “guilty” and where at time of sentencing, he
        also maintained he was acting in self-defense.

     2. Whether the trial court erred and abused its discretion in
        sentencing [Gonzalez] to an excessive sentence without
        considering the mitigating factors presented at the sentencing


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         hearing and focusing on the nature of the crime rather than
         the rehabilitative needs of [Gonzalez].

Appellant’s Brief, at 5.

      Gonzalez first argues that the trial court erred by accepting his nolo

contendere plea. Based on our review of the record, it is apparent that prior

to the filing of his Rule 1925(b) statement, Gonzalez did not raise this issue

in the trial court. Gonzalez did not file a written motion to withdraw his plea

before sentencing. See Pa.R.Crim.P. 591(A). He did not file an oral motion

to withdraw his plea at sentencing. See Pa.R.Crim.P. 519, Comment. Nor

did he file a post-sentence motion to withdraw his plea. See Pa.R.Crim.P.

720(B)(a)(i).

      “Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.” Pa.R.A.P. 302(a).

      Historically, Pennsylvania courts adhere to this waiver principle
      because “[i]t is for the court which accepted the plea to consider
      and correct, in the first instance, any error which may have been
      committed.” Commonwealth v. Roberts, 352 A.2d 140, 141
      (Pa. Super. 1975) (holding that common and previously
      condoned mistake of attacking guilty plea on direct appeal
      without first filing petition to withdraw plea with trial court is
      procedural error resulting in waiver; stating, “(t)he swift and
      orderly administration of criminal justice requires that lower
      courts be given the opportunity to rectify their errors before they
      are considered on appeal”; “Strict adherence to this procedure
      could, indeed, preclude an otherwise costly, time consuming,
      and unnecessary appeal to this court”).

Commonwealth v. Lincoln, 72 A.3d 606, 610 (Pa. Super. 2013). “A plea

of nolo contendere when accepted properly by a court, is, in its effect upon a




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case, equivalent to a plea of guilty.” Commonwealth v. Warner, 324 A.2d

362, 363 (Pa. Super. 1974).

       Because Gonzalez did not properly preserve a challenge to the validity

of his nolo contendere plea, we decline to review this issue on appeal.

       Gonzalez next argues that the court erred by imposing an excessive

sentence without considering the mitigating factors presented at the

sentencing hearing and focusing on the nature of the crime rather than his

rehabilitative needs.2

       In his statement of errors complained of on appeal, Gonzalez asserts

that his sentence was manifestly excessive. Rule 1925(b)(iv)(ii) provides, in

relevant part: “The Statement shall concisely identify each ruling or error

that the appellant intends to challenge with sufficient detail to identify all

pertinent issues for the judge.”          Failure to raise an issue in a 1925(b)

statement will result in waiver. Commonwealth v. Castillo, 888 A.2d 775

(Pa. 2005).      See also Commonwealth v. Hansley, 24 A.3d 410, 415

(finding waiver where Rule 1925(b) statement was too vague).            Because

Gonzalez’s Rule 1925(b) statement contained only a bald assertion that his

sentence was excessive, we deem the issue waived.

       Judgment of sentence affirmed.


____________________________________________


2
  Gonzalez also raises this issue in his concise statement of the reasons
relied upon for allowance of appeal with respect to the discretionary aspects
of his sentence. See Pa.R.A.P. 2119(f).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/16/2015




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