J-S70018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  COMMONWEALTH OF PENNSYLVANIA :               IN THE SUPERIOR COURT OF
                               :                    PENNSYLVANIA
                               :
            v.                 :
                               :
                               :
  JESUS VAZQUEZ                :
                               :
                Appellant      :               No. 340 MDA 2017

           Appeal from the Judgment of Sentence June 12, 2015
  In the Court of Common Pleas of Lackawanna County Criminal Division at
                     No(s): CP-35-CR-0002498-2014


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

MEMORANDUM BY SHOGAN, J.:                             FILED MARCH 08, 2018

         Appellant, Jesus Vazquez, appeals nunc pro tunc from the judgment of

sentence entered following his entry of a guilty plea to one count of rape of a

child.    After careful review, we vacate the trial court’s order designating

Appellant as a Sexually Violent Predator (SVP), but otherwise affirm his

judgment of sentence, and remand for the trial court to advise him of his

obligations under Pennsylvania’s Sex Offender Registration and Notification

Act (SORNA), 42 Pa.C.S. §§ 9799.10 et seq.

         The trial court summarized the factual and procedural history of this

case as follows:

                On February 18, 2015, [Appellant] pled guilty to one (1)
         count of Rape of a Child, in violation of 18 Pa.C.S.A. § 3121(c).
         On June 12, 2015, this [c]ourt sentenced [Appellant] to a term of
         thirteen (13) to twenty-six (26) years in a State Correctional
         Institute.
J-S70018-17


           On January 25, 2017, [Appellant] was granted leave to file
      a nunc pro tunc Notice of Appeal within thirty (30) days. On
      February 21, 2017, Attorney Carl J. Poveromo filed a nunc pro
      tunc Notice of Appeal on behalf of [Appellant]. On March 17,
      2017, Attorney Poveromo filed a Concise Statement of Matters
      Complained of on Appeal.

Trial Court Opinion, 4/24/17, at 1.

      Appellant presents the following issues for our review:

      1. Did the Trial Court err and/or abuse its discretion in finding that
         [Appellant’s] guilty plea was knowingly, intelligently and
         voluntarily made and in accepting [Appellant’s] guilty plea to
         Rape of a Child, in violation of 18 Pa.C.S.A. § 3121(c), where
         the totality of the circumstances surrounding the plea show[s]
         [Appellant] did not understand the guilty plea and its
         consequences?

      2. Did the Trial Court err and/or abuse its discretion by failing to
         consider mitigating circumstances, and by relying upon
         impermissible factors, including the seriousness of the crime
         and [Appellant’s] national origin and immigration status, to
         justify imposing a manifestly excessive and unreasonable
         sentence and ordering [Appellant] to undergo incarceration in
         a state correctional facility for a minimum term of 156 months
         to a maximum term of 312 months (13 years to 26 years)?

Appellant’s Brief at 4.

      In his first issue, Appellant asserts that his plea of guilty to rape of a

child was not entered knowingly, intelligently, and voluntarily.      Appellant’s

Brief at 12. Appellant argues that the oral colloquy was deficient because

even though the court asked Appellant if he was guilty of the crime, the trial

court “never explained the elements of Rape of a Child.” Id. at 15. Appellant

contends that the written colloquy is likewise silent regarding the elements of

the crime, maintaining that it merely states “sexual intercourse with a child.”

Id.   As a result, Appellant posits that “there is no indication that [he]

                                      -2-
J-S70018-17



understood the nature of the charge to which he pled guilty.”         Id. at 16.

Furthermore, Appellant contends that the oral colloquy was deficient because

the trial court did not present a factual basis underlying the plea, the

Commonwealth did not indicate what evidence or witnesses would be

produced to prove the offense, the court did not advise Appellant that he did

not have to plead guilty, and that he was presumed innocent and had the right

to a trial by jury. Id. Appellant further asserts that, “[a]lthough [he] signed

a written guilty plea colloquy that informed him of his trial rights, it does not

cure the defects in the oral colloquy conducted at the guilty plea hearing.” Id.

Appellant also argues that he pled guilty because he mistakenly believed that

he would be deported to Mexico immediately after sentencing and would not

be required to first serve prison time in Pennsylvania.          Id. at 17-18.

Additionally, Appellant maintains that he cannot speak or read the English

language, and the trial court had an obligation to ensure that he understood

his rights. Id. at 16-18.

      We first consider whether Appellant has preserved this issue for our

review. Pennsylvania law makes clear that by entering a plea of guilty, a

defendant waives his right to challenge on direct appeal all nonjurisdictional

defects except the legality of the sentence and the validity of the plea.

Commonwealth v. Pantalion, 957 A.2d 1267, 1271 (Pa. Super. 2008). This

Court has explained that “[a] defendant wishing to challenge the voluntariness

of a guilty plea on direct appeal must either object during the plea colloquy or

file a motion to withdraw the plea within ten days of sentencing. Failure to

                                      -3-
J-S70018-17



employ either measure results in waiver.” Commonwealth v. Lincoln, 72

A.3d 606, 609-610 (Pa. Super. 2013); Pa.R.Crim.P. 720(A)(1). “Moreover, a

party cannot rectify the failure to preserve an issue by proffering it in response

to a Rule 1925(b) order.” Commonwealth v. Monjaras-Amaya, 163 A.3d

466, 469 (Pa. Super. 2017).

      Here, Appellant neither objected during his plea colloquy, N.T., 2/18/15,

at 2-9, nor filed a motion to withdraw his guilty plea with the trial court. As

such, the claim is waived.     Lincoln, 72 A.3d at 609-610.        The fact that

Appellant raised this claim in his Pa.R.A.P. 1925(b) statement is insufficient to

cure the waiver. Monjaras-Amaya, 163 A.3d at 469.

      Furthermore, even if Appellant’s issue had not been waived, we would

conclude that it lacks merit. “Our law is clear that, to be valid, a guilty plea

must be knowingly, voluntarily and intelligently entered.” Commonwealth

v. Bedell, 954 A.2d 1209, 1212 (Pa. Super. 2008). In order to ensure a

voluntary, knowing, and intelligent plea, trial courts are required to ask the

following questions in the guilty plea colloquy:

      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 a 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?

                                      -4-
J-S70018-17


     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?

     7)     Does the defendant understand that the Commonwealth has
     a right to have a jury decide the degree of guilt if defendant pleads
     guilty to murder generally?

Pa.R.Crim.P. 590, cmt.; Commonwealth v. Pollard, 832 A.2d 517, 522–523

(Pa. Super. 2003).

     As this Court has explained:

     In order for a guilty plea to be constitutionally valid, the guilty
     plea colloquy must affirmatively show that the defendant
     understood what the plea connoted and its consequences. This
     determination is to be made by examining the totality of the
     circumstances surrounding the entry of the plea. Thus, even
     though there is an omission or defect in the guilty plea colloquy,
     a plea of guilty will not be deemed invalid if the circumstances
     surrounding the entry of the plea disclose that the defendant had
     a full understanding of the nature and consequences of his plea
     and that he knowingly and voluntarily decided to enter the plea.

Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011).

Additionally, a written plea colloquy that is read, completed, and signed by

the defendant, and made part of the record may serve as the defendant’s plea

colloquy when supplemented by an oral, on-the-record examination.

Commonwealth v. Morrison, 878 A.2d 102, 108-109 (Pa. Super. 2005)

(citing Pa.R.Crim.P. 590, cmt.).    “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.” Pollard, 832 A.2d at 523 (internal citation omitted).

     “Where the record clearly demonstrates that a guilty plea colloquy was

conducted, during which it became evident that the defendant understood the



                                     -5-
J-S70018-17


nature of the charges against him, the voluntariness of the plea is

established.”   Commonwealth v. Rush, 909 A.2d 805, 808 (Pa. Super.

2006). “A person who elects to plead guilty is bound by the statements he

makes in open court while under oath and may not later assert grounds for

withdrawing the plea which contradict the statements he made at his plea

colloquy.” Yeomans, 24 A.3d at 1047.

      Here, the record belies Appellant’s assertion that his plea was entered

involuntarily, unknowingly, and unintelligently.    First, Appellant executed a

written plea agreement which advised him of all criteria outlined under

Pa.R.Crim.P. 590 and indicated that Appellant entered the plea knowingly and

voluntarily. Appellant completed the lengthy written guilty plea colloquy by

initialing every paragraph. Guilty Plea Colloquy, 2/18/15, at 1-5. The written

plea colloquy was translated into Spanish. Id. Appellant’s argument that this

colloquy was defective because paragraph twenty, which advised Appellant

that he would be deported, was not translated to Spanish, Appellant’s Brief at

18, fails. As outlined below, this issue was addressed during Appellant’s oral

colloquy, which was translated for Appellant.      Moreover, at the sentencing

hearing, which also was translated, Appellant’s counsel stated: “[Appellant]

is going to be deported back to Mexico upon the conclusion of his sentence.”

N.T., 6/12/15, at 12. Thus, we would conclude that the record supports the

conclusion that Appellant understood that he would be required to serve his

sentence in Pennsylvania prior to being deported.


                                    -6-
J-S70018-17


       Second, the trial court conducted a lengthy oral guilty plea colloquy with

Appellant that covered the requirements set forth in Pa.R.Crim.P. 590, and

the colloquy was translated by a Spanish interpreter. N.T., 2/18/15, at 1-9.

With regard to Appellant’s specific claim that the elements of the crime were

not identified for him, we are constrained to disagree.          Appellant was

presented with the following identification of the charge: “Between June of

2012 and February 2013, in Lackawanna County, [Appellant] did engage in

sexual intercourse with an individual with the initial[s] V.R.; date of birth,

4/5/02, on multiple occasions.”1 Id. at 7. The offense of rape of a child is

defined as follows: “A person commits the offense of rape of a child, a felony

of the first degree, when the person engages in sexual intercourse with a

complainant who is less than 13 years of age.” 18 Pa.C.S. § 3121(c). Thus,

the two elements of the crime, 1) sexual intercourse and 2) with an individual

less than thirteen years of age, were set forth for Appellant.        Moreover,

Appellant admitted to committing that crime. Id. Thus, Appellant’s argument

that the elements of the crime were not identified for him fails. Moreover, the

above recitation provided Appellant the factual basis for this charge, despite

his assertion to the contrary.




____________________________________________


1 “A person commits the offense of rape of a child, a felony of the first degree,
when the person engages in sexual intercourse with a complainant who is less
than 13 years of age.” 18 Pa.C.S. § 3121(c).

                                           -7-
J-S70018-17


      The court also advised Appellant that by entering a plea, he was giving

up his rights related to proceeding to trial. N.T., 2/18/15, at 5. Furthermore,

it was made clear that entry of the plea would result in Appellant’s deportation.

Id. at 7-8. Were we to address this issue, we would conclude that Appellant’s

claim that his plea was not knowingly entered because he did not understand

that he would have to serve a sentence in Pennsylvania before being deported

to be disingenuous. The parties outlined the potential sentence in light of the

plea, including the amount of the fine, the fact that Appellant would be

required to register as a sex offender, and the time of incarceration. Id. at

5-6. If Appellant were not required to serve the sentence, such discussion

would not have taken place, and Appellant would have been advised that he

was being deported. Also, as noted above, this fact was stated at Appellant’s

sentencing hearing.

      After the oral colloquy, the trial court, satisfied that Appellant’s plea was

being entered voluntarily, knowingly, and intelligently, accepted Appellant’s

plea. N.T., 2/18/15, at 8. As this Court has explained, a written colloquy that

is read, completed, and signed by the defendant, and made part of the record

may serve as the defendant’s plea colloquy when supplemented by an oral,

on-the-record examination. Morrison, 878 A.2d at 108-109. Considering

the totality of circumstances surrounding the plea, the evidence reflects that

Appellant knowingly, voluntarily, and intelligently entered his plea, and

Appellant has failed to carry the burden of establishing otherwise. Pollard,


                                      -8-
J-S70018-17


832 A.2d at 523. Accordingly, were we to consider Appellant’s claim, we would

deem it to lack merit.

       In his second issue, Appellant asserts that the trial court erred or abused

its discretion by failing to consider mitigating circumstances and by relying on

impermissible factors to justify imposing a manifestly excessive and

unreasonable sentence. Appellant’s Brief at 20. Appellant contends that his

sentence of 156 months to 312 months of imprisonment is severe, despite

falling within the standard range.             Id. at 21.   Appellant asserts that the

sentence is excessive as he “will be over forty-three years old and deported

to Mexico when he finally emerges from prison. He will have to register as a

sex offender under SORNA[2] for the remainder of his life.” Id. Appellant

further maintains that the Assistant District Attorney (“ADA”) improperly

referenced Appellant’s immigration status as a ground for imposing an

aggravated sentence. Id. at 23. Appellant argues that, although the trial

court did not state its reliance on this factor in sentencing him, it failed to

disavow the ADA’s comments and “appears” to have relied on the information

presented by the ADA, including Appellant’s race, national origin and

immigration status. Id. at 24. Accordingly, Appellant argues, his sentence

must be vacated, and he must be resentenced. Id.




____________________________________________


2 Sex Offender Registration and Notification Act, 42 Pa.C.S. §§ 9799.10-
9799.41.

                                           -9-
J-S70018-17


      Appellant’s issue challenges the discretionary aspects of his sentence.

We note that “[t]he right to appellate review of the discretionary aspects of a

sentence is not absolute.” Commonwealth v. Zirkle, 107 A.3d 127, 132

(Pa. Super. 2014). Rather, where an appellant challenges the discretionary

aspects of a sentence, the appeal should be considered a petition for allowance

of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa. Super. 2007).

      We observed 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:

            We 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.
            [708]; (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, 533 (Pa. Super.

2006)). The determination of whether there is a substantial question is made

on a case-by-case basis, and this Court will grant the appeal “only 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




                                     - 10 -
J-S70018-17


process.” Commonwealth v. Sierra, 752 A.2d 910, 912–913 (Pa. Super.

2000).

      Herein, Appellant timely filed an appeal and included in his appellate

brief the necessary separate concise statement of the reasons relied upon for

allowance of appeal pursuant to Pa.R.A.P. 2119(f). Appellant, however, did

not object to the sentence at the time of sentencing, N.T., 6/12/15, at 2-17,

nor did he file a post-sentence motion raising this issue. As this Court has

explained: “issues challenging the discretionary aspects of a sentence must

be raised in a post-sentence motion or by presenting the claim to the trial

court during the sentencing proceedings. Absent such efforts, an objection to

a discretionary aspect of a sentence is waived.” Commonwealth v. Kittrell,

19 A.3d 532, 538 (Pa. Super. 2011). Because Appellant failed to raise this

issue either at sentencing or in a post-sentence motion, this issue is waived.

Kittrell, 19 A.3d at 538.

      Finally, we are compelled to sua sponte vacate an illegal aspect of

Appellant’s sentence, namely, the June 12, 2015 order deeming him an SVP.

See Commonwealth v. Batts, 163 A.3d 410, 434 (Pa. 2017) (“[a] challenge

to the legality of a particular sentence may be reviewed by any court on direct

appeal; it need not be preserved in the lower courts to be reviewable and may

even be raised by an appellate court sua sponte.”).

      Applying Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017),

Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United


                                    - 11 -
J-S70018-17


States, 570 U.S. 99 (2013), this Court, in Commonwealth v. Butler, 173

A.3d 1212 (Pa. Super. 2017), found that 42 Pa.C.S. § 9799.24(e)(3) of SORNA

is unconstitutional. The Butler Court concluded:

           As the sole statutory mechanism for SVP designation is
     constitutionally flawed, there is no longer a legitimate path
     forward for undertaking adjudications pursuant to section
     9799.24. As such, trial courts may no longer designate convicted
     defendants as SVPs, nor may they hold SVP hearings, until our
     General Assembly enacts a constitutional designation mechanism.
     Cf. Commonwealth v. Hopkins, 632 Pa. 36,117 A.3d 247, 258–
     262 (2015) (finding that trial courts cannot impose mandatory
     minimum sentences until the General Assembly enacts a statute
     which provides a constitutional mechanism to determine if the
     defendant is subject to the mandatory minimum sentence).
     Instead, trial courts must notify a defendant that he or she is
     required to register for 15 years if he or she is convicted of a Tier
     I sexual offense, 25 years if he or she is convicted of a Tier II
     sexual offense, or life if he or she is convicted of a Tier III sexual
     offense.

           In sum, we are constrained to hold that section
     9799.24(e)(3) of SORNA violates the federal and state
     constitutions because it increases the criminal penalty to which a
     defendant is exposed without the chosen fact-finder making the
     necessary factual findings beyond a reasonable doubt. Moreover,
     we are constrained to hold trial courts cannot designate convicted
     defendants SVPs (nor may they hold SVP hearings) until our
     General Assembly enacts a constitutional designation mechanism.
     Instead, trial courts must notify a defendant that he or she is
     required to register for 15 years if he or she is convicted of a Tier
     I sexual offense, 25 years if he or she is convicted of a Tier II
     sexual offense, or life if he or she is convicted of a Tier III sexual
     offense.

Butler, 173 A.3d at 1218 (footnotes omitted).            Here, Appellant was

determined to be an SVP under the now unconstitutional SVP mechanism.

     In light of Butler, we are constrained to conclude that the June 12, 2015

order deeming Appellant an SVP is illegal. Accordingly, we vacate that portion

                                    - 12 -
J-S70018-17


of the sentencing order, and remand Appellant’s case for the trial court to

determine under what tier of SORNA Appellant must register, and to provide

him with the appropriate notice of his registration obligations under 42 Pa.C.S.

§ 9799.23. See id. at 1218.

      Portion of sentencing order deeming Appellant an SVP vacated.

Judgment of sentence affirmed in all other respects.          Case remanded.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/8/2018




                                     - 13 -
