J-S44019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DARRYL ANTHONY BAIDEME                     :
                                               :
                       Appellant               :   No. 43 WDA 2019

       Appeal from the Judgment of Sentence Entered December 5, 2018
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                          CP-25-CR-0000549-2018


BEFORE: SHOGAN, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                       FILED NOVEMBER 26, 2019

        Darryl Anthony Baideme appeals from the judgment of sentence

imposed following his open guilty plea for home improvement fraud.1 He

challenges his sentence as excessive, and contrary to the goals of the

Sentencing Code. We affirm.

        Baideme pled guilty in October 2018, to the following facts:

        [I]t’s alleged that on or about December 8th, 2015 through April
        1st of 2016 in Erie County, Pennsylvania, you did receive any [sic]
        advance payment for performing home improvement services or
        providing home improvement materials and failed to perform or
        provide such services or materials when specified in the contract.

        To wit, you presented yourself as a contractor to the victims, Tina
        and Jeff Merritt, M-E-R-R-I-T-T, and retained deposits totaling
        $10,900.00, more or less, without finishing most of the contracted
        work. This occurred at 416 West 10th Street in the City of Erie.


____________________________________________


1   73 P.S. § 517.8(a)(2).
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N.T., Guilty Plea Hearing, 10/3/18, at 16. Baideme agreed that his plea

agreement included that he pay $10,900 in restitution, forfeit his contractor’s

license, and cease to work as a contractor. Id. at 11. In exchange for this

plea, the Commonwealth agreed to nol. pros. the remaining charges. Id. While

the Commonwealth did not recommend a sentence at the guilty plea hearing,

it informed Baideme that “[i]f the Commonwealth agrees to make a sentencing

recommendation on your behalf, the Judge will not be bound by this

recommendation[.]” Id. at 6.

      At sentencing in December 2018, defense counsel referenced emails

between himself and the prior assistant district attorney (“ADA”) who handled

the case, ADA Trent. The emails are not in the certified record. ADA Trent left

the District Attorney’s Office in April 2018 and the case was reassigned to ADA

Burns. N.T., Sentencing, 12/5/18, at 8; Com. Motion for Continuance of Trial,

filed 5/1/18, at ¶ 3.

      Defense counsel stated at the sentencing hearing that ADA Trent had

agreed in the emails to recommend “that these sentences would run

concurrently to any other sentence that he’s currently serving.” N.T.,

Sentencing, 12/5/18, at 7-8. Counsel stated that this recommendation was

conveyed to Baideme before he pled guilty. Id. at 9. ADA Burns responded

that before Baideme’s plea, he had assumed charge of the case and had

informed defense counsel via email that “I would not specifically ask for

consecutive sentences.” Id. at 12. This email also is not in the certified record.




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        Defense counsel then argued, “Mr. Baideme has held up his end of the

deal that was originally proposed by [ADA] Trent[.]” Id. at 9. However, the

court concluded that “if the deal was disavowed before the plea is done, then

there’s no deal[,]” and that here “[the deal] was revoked before [Baideme]

accepted it.” Id. It also noted that “[a] Commonwealth’s attorney’s power to

bind an attorney vanishes the moment he leaves or it’s disavowed.” Id.

        Before imposing sentence, the trial court acknowledged that it received

several letters from individuals on behalf of Baideme. Id. at 22. The court also

heard testimony from the victim and from Baideme. It then sentenced

Baideme to 10 to 20 months’ incarceration.

        Baideme then sent the trial court two letters addressed to defense

counsel, and asked the court to forward them to counsel. The first letter asked

counsel to “file a sentence modification and, also a[n] appeal. Pro Se Letter,

filed 12/6/18.2 The second letter again asked counsel to file his “sentence

modification and appeal,” and stated that he believed he was eligible for the

Recidivism Risk Reduction Incentive program (“RRRI”). Pro Se Letter, filed

____________________________________________


2   This letter reads:

        I’m asking if you can file a sentence modification and, also a[n]
        appeal because of docket of 549 of 2018 of the reasoning of the
        statu[t]e of limitations and, the emails between you and Jared
        Trent and the proposal of a plea bargain of a concurrent sentence
        agreed upon from both parties.

Pro Se Letter, docketed 12/6/18.



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12/12/18.3 The trial court sent the letters to counsel, but nothing in the

certified record indicates that counsel filed a post-sentence motion.

        Baideme also filed a pro se letter with the court arguing that he was

eligible for the Recidivism Risk Reduction Incentive program (“RRRI”) and

asking the court to amend the sentencing order. See Pro Se Letter, filed

12/12/18. The court denied this request, concluding that Baideme was RRRI

ineligible because of a prior conviction. Id.4 This timely appeal followed.

        Baideme raises one issue: “Whether [Baideme’s] sentence is manifestly

excessive, clearly unreasonable and inconsistent with the objectives of the

Sentencing Code?” Baideme’s Br. at 3.

        We review a challenge to the discretionary aspects of sentence for an

abuse of discretion. Commonwealth v. Smith, 206 A.3d 551, 567 (Pa.Super.

2019). Before we address the merits of such a challenge we must determine:


____________________________________________


3   This letter reads:

        I’m writing to you to please file my sentence modification and
        appeal on my sentence on December 5, 2018.

        Please add to the sentence modification that I believe I’m
        recidivism, risk, reduction, incentive (RRRI) eligible and that, I’m
        not a risk to public safety. Also, anything else you may add to it.

        The appeal is that there’s statu[t]e of limitations on docket 549 of
        2018. Also, anything else you might add.

Pro Se Letter, docketed 12/12/18.
4 The court denied the request by a handwritten note on the letter stating,
“The request for RRRI eligibility is denied. The defendant’s prior assault
conviction makes him ineligible.”

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        (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. [702]; (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).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010) (citation

omitted) (alteration in Moury).

        Here, Baideme failed to preserve his claim by raising it in a post-

sentence     motion     or   by   objecting    at   the   sentencing   hearing.   See

Commonwealth v. Padilla-Vargas, 204 A.3d 971, 975-76 (Pa.Super. 2019)

(“Objections to the discretionary aspects of a sentence are generally waived

if they are not raised at the sentencing hearing or in a motion to modify the

sentence imposed.”). Though he filed a pro-se letter with the court requesting

that his sentencing order reflect his RRRI eligibility, that is not the issue that

he presents to this Court. We also note that the trial court should have

forwarded the letter to counsel instead of ruling on the request. See

Pa.R.Crim.P. 576(A)(4).5 Because Baideme failed to preserve his issue in a

____________________________________________


5   Pennsylvania Rule of Criminal Procedure 576(A)(4) provides:

        In any case in which a defendant is represented by an attorney, if
        the defendant submits for filing a written motion, notice, or
        document that has not been signed by the defendant's attorney,
        the clerk of courts shall accept it for filing, time stamp it with the
        date of receipt and make a docket entry reflecting the date of
        receipt, and place the document in the criminal case file. A copy
        of the time stamped document shall be forwarded to the



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post-sentence motion or at the sentence hearing, he has waived review of his

sentencing issue. Nonetheless, had this claim been preserved below, and

assuming Baideme has presented a substantial question, we would reject this

issue for lack of merit.

       Baideme claims that the trial court imposed an excessive sentence

because “it failed to give due weight to the mitigating factors” and “failed to

consider the agreement [Baideme] previously had with the Commonwealth

wherein concurrent sentences would be recommended.” Baideme’s Br. at 7.

The record belies these arguments.

       Because the court reviewed the presentence investigation report

(“PSI”), we presume that it was aware of the mitigating factors. See

Commonwealth v. Finnecy, 135 A.3d 1028, 1038 (Pa.Super. 2016) (stating

that where court has benefit of PSI, this Court presumes that trial court “was

aware of the relevant information regarding the defendant’s character and …

mitigating statutory factors.”).

       Additionally, the court stated that it considered all the following in

fashioning Baideme’s sentence:

       I’ve considered the Pennsylvania Sentencing Code, the
       presentence report, the guidelines; I’ve looked at the statements
       of [Baideme], defense counsel, Attorney for the Commonwealth,
       the victims here, the victim statement - - impact statements,

____________________________________________


       defendant's attorney and the attorney for the Commonwealth
       within 10 days of receipt.




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      some of which are attached; and I’ve considered the nature of the
      - - and circumstances of these various offenses, their pattern; and
      the protection of the community.

N.T., Sentencing, at 59. Thus, the court considered Baideme’s mitigating

evidence and simply did not give it the weight that Baideme desired.

      Furthermore,    the   parties   at    best   agreed   to   a   sentencing

recommendation; there was no agreement as to the sentence. See N.T.,

Guilty Plea Hearing, at 6 (court explaining to Baideme that it is not bound by

parties’ agreement for sentencing recommendation). Though the previous

prosecutor and Baideme’s counsel may have at one point agreed to a

recommendation for concurrent sentences, by the time of the plea hearing,

ADA Burns had taken over the case and had informed counsel that he would

not recommend a consecutive sentence. It also bears pointing out that at the

plea hearing Baideme agreed that the only agreement for the plea was that

the Commonwealth would nol. pros. the remaining charges. See N.T., Guilty

Plea Hearing, at 11; Defendant’s Statement of Understanding of Rights Prior

to Guilty/No Contest Plea, dated 10/3/18, at ¶ 5.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/26/2019


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