J-S32040-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    REGINALD HARRIS                            :
                                               :
                       Appellant               :     No. 1879 MDA 2017


           Appeal from the Judgments of Sentence October 19, 2017
                in the Court of Common Pleas of Union County
             Criminal Division at Nos.: CP-60-CR-0000190-2016
                           CP-60-CR-0000191-2016
                           CP-60-CR-0000192-2016
                           CP-60-CR-0000193-2016


BEFORE:      PANELLA, J., NICHOLS, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                               FILED AUGUST 10, 2018

        Appellant, Reginald Harris, appeals from the judgments of sentence

imposed on October 19, 2017, following his guilty plea conviction in four cases

to three counts of retail theft and one count of theft by deception.1

Specifically, he claims that the trial court erred by not setting forth adequate

reasons for the sentence on the record, and that he is entitled to relief because

of the ineffectiveness of trial counsel during a pre-trial hearing. We affirm the

judgments of sentence and decline to consider the effectiveness of counsel on

this direct appeal.



____________________________________________


1   18 Pa.C.S.A. §§ 3929(a) and 3922(a).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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      We take the factual and procedural history in this matter from our

review of the certified record. Appellant was charged in four different cases

with retail theft, theft by deception, and other related charges. The offenses

stemmed from four different incidents wherein Appellant under-rang items for

sale at a Walmart, intending to deprive the merchant of the full retail value,

and where he used counterfeit $100 bills to purchase items at Walmart, later

returning the items and receiving credit for them. (See N.T. Guilty Plea and

Sentencing Hearing, 10/18/17, at 4-5). The Commonwealth consolidated the

four cases for trial.

      Prior to trial, Appellant failed to appear at a pre-trial conference on

January 6, 2017, although defense counsel was present. The court issued a

bench warrant for Appellant’s arrest, and granted defense counsel’s motion to

revoke Appellant’s Bail. (See Trial Court Opinion, 1/24/18, at 2).

      On October 18, 2017, Appellant pleaded guilty, pursuant to a plea

agreement, to one count in each of the informations (one count of retail theft

in CR-190, CR-191, and CR-193 of 2016; and one count of theft by deception

in CR-192-2016).

      The terms of [Appellant’s] plea agreement were: Sentence is to
      be the lower end of the standard range. Credit for time served,
      consecutive or concurrent and length of tail is for argument.
      Commonwealth will nol pros remaining counts. Prior record score
      is a [five].

(Id. at 2-3) (record citation omitted).

      The trial court engaged in a detailed on the record colloquy with

Appellant. It explained the written plea colloquy that Appellant had signed,

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and verified that defense counsel reviewed the form with him and that it was

in fact his signature. (See N.T. Hearing, at 5-6). The court then explained

the plea agreement and the fact that it was not bound by the agreement for

the maximum sentence, and could impose a maximum of up to twenty years.

(See id. at 6-8). The court explained that given Appellant’s prior record score

of five, with four prior offenses, and the terms of the plea agreement where it

could impose sentences consecutively, the sentence could be as much as not

less than nine months nor more than twenty years of incarceration. (See id.

at 8-9). After conferring with his attorney, Appellant pleaded guilty to the

aforementioned charges.

      The court then proceeded to sentencing. It explained that Appellant had

the right to request a presentence investigation report (PSI), which would give

the court more information with respect to sentencing, but stated that it was

already aware of significant parts of Appellant’s history, specifically that when

Appellant was sixteen, he was convicted as an adult of the crime of murder;

that he was convicted of a federal crime of cocaine delivery and served sixty-

five months in a federal penitentiary, and that he has been sentenced on

charges in both Montgomery and Chester Counties. (See id. at 12). Appellant

agreed to proceeding to sentencing without a PSI. (See id. at 13). The court

explained the guidelines standard range sentences for the charges, and

listened to both defense counsel’s argument and Appellant’s statement on his

own behalf. (See id. at 13-15). The court then accepted the plea agreement

and sentenced Appellant to not less than six months nor more than five years

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of imprisonment for the one count of theft by deception (concurrent to the

sentence Appellant was serving in Chester County); and not less than one

month nor more than five years’ imprisonment for the three retail theft

convictions, concurrent to each other, but consecutive to the sentence for

theft by deception.

       Appellant filed a timely post-sentence motion, which the trial court

denied on November 2, 2017. This timely appeal followed.2

       Appellant raises two questions on appeal:

       1.     Did error occur when the reasons for Appellant’s sentence
              were not specifically placed on the record?

       2.     Did error occur where Appellant’s prior counsel claimed
              Appellant duped his wife and defense counsel asked for
              Appellant’s bail to be revoked?

(Appellant’s Brief, at 10).

       In his first issue, Appellant claims that the trial court erred when it did

not state the reasons for the sentence on the record. (See id. at 15-16).

Specifically, Appellant claims that the court’s failure to state its reasons

prevented him “from exploring all possible options for relief.” (Id. at 16).

Appellant’s claim is meritless.

       Appellant’s first issue challenges the discretionary aspects of his

sentence. “Challenges to the discretionary aspects of sentencing do not entitle

____________________________________________


2  Pursuant to the trial court’s order, Appellant filed a concise statement of
errors complained of on appeal on December 27, 2017. The trial court entered
its opinion on January 24, 2018. See Pa.R.A.P. 1925.


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an appellant to review as of right.” Commonwealth v. Griffin, 65 A.3d 932,

935 (Pa. Super. 2013), appeal denied, 76 A.3d 538 (Pa. 2013) (case citations

and quotation marks omitted). Thus, in order to seek review on the merits,

Appellant must invoke this Court’s jurisdiction by: (1) preserving the issue by

raising it at the time of sentencing or in a post-sentence motion, (2) filing a

timely notice of appeal, (3) setting forth a concise statement of reasons relied

on for the allowance of appeal in accordance with Pa.R.A.P. 2119(f), and (4)

raising a substantial question for our review that the sentence appealed from

is not appropriate under the sentencing code. See id.

      Here, Appellant filed a motion to modify sentence, which the trial court

denied. In that motion, Appellant contends that he “believes the sentence of

ten years is manifestly excessive to constitute an abuse of discretion.” (Motion

to Modify Sentence, 10/27/17, at unnumbered page 2). However, Appellant

failed to raise his claim that the court failed to state its reasons on the record,

in either his motion to modify sentence, or during the sentencing hearing.

Accordingly, we conclude that he has waived this claim. See Commonwealth

v. Bullock, 948 A.2d 818, 826 (Pa. Super. 2008), appeal denied, 968 A.2d

1280 (Pa. 2009) (“As such, Appellant did not give the sentencing judge an

opportunity to reconsider or modify [his] sentence on this basis, and,

therefore, the claim is waived.”) (citation omitted); see also Pa.R.A.P. 302(a)

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

first time on appeal.”).

      Moreover, even if not waived, Appellant’s claim would not merit relief.

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            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. In this context, an abuse of discretion is
            not shown merely by an error in judgment. Rather,
            the appellant must establish, by reference to the
            record, that the sentencing court ignored or
            misapplied the law, exercised its judgment for reasons
            of partiality, prejudice, bias or ill will, or arrived at a
            manifestly unreasonable decision.

             In every case in which the court imposes a sentence for a
      felony or a 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.
      [See] 42 Pa.C.S. § 9721(b). . . . Consequently, all that a trial
      court must do to comply with the above procedural requirements
      is to state adequate reasons for the imposition of sentence on the
      record in open court.

Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa. Super. 2014), appeal

denied, 95 A.3d 275 (Pa. 2014) (case citations and quotation marks omitted).

      “When imposing sentence, a court is required to consider the particular

circumstances of the offense and the character of the defendant. In

considering these factors, the court should refer to the defendant’s prior

criminal record, age, personal characteristics and potential for rehabilitation.”

Id. at 761 (citation omitted). “As long as the trial court’s reasons demonstrate

that it weighed the Sentencing Guidelines with the facts of the crime and the

defendant’s character in a meaningful fashion, the court’s sentence should not

be disturbed.” Commonwealth v. Begley, 780 A.2d 605, 643 (Pa. 2001)

(citation omitted).

      Here, the trial court explained that it was aware of Appellant’s age,

address, and significant criminal record including murder and felony drug


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charges.     The court offered Appellant the opportunity for a PSI, which he

waived.     (See N.T. Hearing, at 12-13).     The court explained the guideline

ranges for the charges, and listened to both defense counsel’s argument and

Appellant’s statement on his own behalf. It then imposed a sentence that was

consistent with the plea agreement.

      Upon review, we conclude that the court stated adequate reasons on

the record to support its sentence.          The record, as a whole, reflected

consideration of the factors set forth in the sentencing code. See Antidormi,

supra at 761. As such, the court did not abuse its discretion in sentencing

Appellant within the standard range of the guidelines. Appellant’s challenge

to the discretionary aspects of his sentence, even if not waived, would be

meritless.

      Appellant’s second question raises a claim of the ineffectiveness of trial

counsel.     (See Appellant’s Brief, at 16-20).    Absent certain extraordinary

circumstances, “claims of ineffective assistance of counsel are to be deferred

to PCRA review; . . . such claims should not be reviewed upon direct appeal.”

Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013) (footnote

omitted).

      There are three notable exceptions to the general deferral of ineffective

assistance of counsel claims to PCRA review:

      The first exception, . . . affords trial courts discretion to entertain
      ineffectiveness claims in extraordinary circumstances where a
      discrete claim of trial counsel ineffectiveness is apparent from the
      record and meritorious to the extent that immediate consideration
      best serves the interests of justice. The second exception . . .

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      gives trial courts discretion to address ineffectiveness claims on
      post-sentence motions and direct appeal if there is good cause
      shown and the defendant knowingly and expressly waives his
      entitlement to seek subsequent PCRA review of his conviction and
      sentence.

Commonwealth v. Delgros, 183 A.3d 352, 360 (Pa. 2018) (citations

omitted).   Finally, the third exception, adopted by our Supreme Court in

Delgros, supra, requires “trial courts to address claims challenging trial

counsel’s performance where the defendant is statutorily precluded from

obtaining subsequent PCRA review.” Id. at 361.

      Here, Appellant claims that he should be entitled to review of his claim

on direct appeal because “the issue is far beyond one of ineffectiveness . . . .

This was an utter failure of counsel and of the system itself, a remarkable

depravation of [Appellant’s] constitutional rights.” (Appellant’s Brief, at 19).

The trial court declined to address this issue in its Rule 1925(a) opinion. (See

Trial Ct. Op., at 5).

      Upon review, we conclude Appellant has not demonstrated how

immediate consideration of his ineffectiveness claim (against the attorney who

represented him at a pre-trial conference, not during his guilty plea or

sentencing), best serves the interest of justice. See Delgros, supra at 360.

Furthermore, we note that Appellant has not waived his right to seek

subsequent PCRA review of his conviction and he is not statutorily barred from

seeking PCRA relief, thus the second and third exceptions do not apply.

Accordingly, because none of the three exceptions apply, we decline to review

Appellant’s claims of ineffectiveness during this, his direct appeal.


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     Judgments of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/10/2018




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