J-S17006-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

ROBERT DILUZIO,

                          Appellant                   No. 3812 EDA 2017


     Appeal from the Judgment of Sentence Entered October 10, 2017
          In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0008130-2015


BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                          FILED JUNE 05, 2019

      Appellant, Robert DiLuzio, appeals pro se from the judgment of sentence

of an aggregate term of 25 to 50 years’ incarceration, imposed on October 10,

2017, following his guilty plea to third-degree murder and related offenses.

On appeal, Appellant contends, inter alia, that the court erred by denying his

motion to withdraw his guilty plea. We affirm.

      The trial court summarized the facts of this case, as follows:

      Around 1:30 in the afternoon of July 2, 2015, [Appellant], also
      known as Cali Rob, was at 2813 Orthodox Street in Philadelphia,
      his home. He was first approached by a male who confronted
      [Appellant] about a robbery the night before of his friend, Daniel
      Santiago, requesting that [Appellant] return what he had taken.
      [Appellant] refused and slammed the door in the male’s face.
      Approximately twenty-five minutes later, a second male
      approached [Appellant] asking for the return of Santiago’s
      property. [Appellant] again refused, this time, displaying a firearm
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       to make his point. The second male retreated. A short time later
       a third male approached [Appellant] requesting the return of
       Santiago’s property. Santiago was on the sidewalk. In response,
       [Appellant] raised his gun and shot Santiago three times, resulting
       in the death of Daniel Santiago. [Appellant] fled from the rear of
       the property and when confronted by the police, reached for the
       gun in the waistband of his pants. The officers exited their vehicle
       and subdued [Appellant], removing from his person a []9 mm
       pistol, fifty rounds of []9 mm ammunition, a box of []22 caliber
       long rifle ammunition and [$4,167]. [Appellant] told the officers
       that it was the first time he had shot anybody. Neighborhood
       security videos depicted the killing in its entirety. Ballistics
       matched [Appellant’s] gun with the fired cartridge casings outside
       of [Appellant’s] house.

Trial Court Opinion (TCO), 12/11/17, at 1-2 (citation to the record omitted).

       Based on these facts,
       [Appellant] was arrested on July 2, 2015, and charged with
       murder; two counts each of criminal conspiracy, robbery and
       possessing the instruments of a crime [(PIC)]; and three counts
       each of firearms not to be carried without a license, and carrying
       firearms in public in Philadelphia. Following a preliminary hearing
       on August 12, 2015, [Appellant] was bound over for court on all
       charges. Jury selection commenced June 20, 2016, with trial to
       start the following day. Prior to the jury being sworn, [Appellant]
       entered into a negotiated plea to the charge of murder of the third
       degree, [robbery, criminal conspiracy, carrying a firearm on a
       public street in Philadelphia,] firearms not to be carried without a
       license[,] and [PIC] for an aggregate sentence of twenty-five to
       fifty years’ incarceration. No direct appeal was taken.

Id. at 1-2.

       On March 21, 2017, Appellant filed a pro se petition under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.1         The PCRA court
____________________________________________


1 The trial court incorrectly states in its Pa.R.A.P. 1925(a) opinion that in
Appellant’s pro se petition, he “claim[ed] ineffective assistance of counsel
solely because his attorney failed to file a return of property petition for the
[money] allegedly taken from him at the time of his arrest.” TCO at 2. The



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appointed counsel, who filed an amended petition on Appellant’s behalf.

Therein, counsel meaningfully argued only that Appellant’s sentence of 25 to

50 years’ incarceration for third-degree murder was illegal because it

exceeded the statutory maximum term of 40 years’ incarceration.            See

Amended PCRA Petition, 8/1/17, at 4. Counsel also cursorily stated, without

discussion, that Appellant’s plea was involuntary because he was not informed

of the appropriate statutory maximum sentences that he faced, and because

Appellant “disputed part of the factual recitation.” Id. At the close of the

amended petition, counsel asked that the court “vacate his sentence and

permit [Appellant] to proceed to trial.” Id. at 5.

       On August 2, 2017, the PCRA court issued an order stating that

Appellant’s petition was granted, and rescheduling a new sentencing hearing

for October 10, 2017. At the outset of that hearing, the PCRA court clarified

that it was denying Appellant’s remaining post-conviction claims.          N.T.

Resentencing, 10/10/17, at 3. Additionally, the court denied Appellant’s pre-

sentence oral motion to withdraw his guilty plea. The court then sentenced

Appellant to 20 to 40 years’ incarceration for third-degree murder, and to two,

consecutive terms of 2½ to 5 years’ incarceration for his firearm and PIC

offenses. Thus, Appellant’s aggregate sentence remains at 25 to 50 years’

____________________________________________


record does not support the court’s characterization of Appellant’s petition. As
we discuss infra, Appellant clearly set forth several ineffectiveness claims
pertaining to counsel’s advising him to plead guilty, and he did not raise any
issue involving counsel’s failure to file a return of property petition.


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incarceration.    The day after Appellant was resentenced, he filed another

motion to withdraw his guilty plea. Again, the court denied that request.

       On October 18, 2017, Appellant’s counsel filed a timely notice of appeal

from the judgment of sentence imposed on October 10, 2017. That appeal

was docketed at 3389 EDA 2017.                 On October 19, 2017, the PCRA court

ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal.         Appellant’s counsel timely complied, raising the

following, single issue for our review:

       The trial court erred in not permitting Appellant to withdraw his
       guilty plea prior to and after resentencing because the prior plea
       was involuntarily induced because Appellant was not aware of the
       statutory maximum for [m]urder in the [t]hird [d]egree and, as a
       consequence, Appellant should have been permitted to withdraw
       his plea and proceed to trial.

Rule 1925(b) Statement, 10/24/17, at 1 (citation to the record omitted).

       Thereafter, on November 17, 2017, Appellant pro se filed an untimely,

duplicative notice of appeal, which was erroneously assigned the present

docket number (3812 EDA 2017), rather than being docketed at the number

assigned to counsel’s prior appeal.            Appellant then filed with this Court a

petition to proceed pro se, prompting us to remand for the PCRA court to

conduct a Grazier2 hearing. On April 6, 2018, the PCRA court issued an order

stating that after conducting that hearing, it was granting Appellant’s request

to represent himself. Accordingly, Appellant’s counsel did not file a brief in


____________________________________________


2   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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the appeal docketed at 3389 EDA 2017, and it was dismissed by per curiam

order of this Court on June 15, 2018.

      Consequently, although the present appeal appears to be untimely, as

it stems from Appellant’s pro se notice of appeal, we will not quash.

Appellant’s counsel filed a timely notice of appeal on Appellant’s behalf, and it

appears that it was a breakdown in the operations of this Court that resulted

in that appeal being dismissed and the present, facially untimely appeal

proceeding. Thus, we may overlook the facial untimeliness of the present

appeal. See Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa. Super.

2007) (“[A] court can grant relief [for an untimely appeal] in cases of fraud or

a breakdown in the operations of the courts.”) (citations omitted).

      In Appellant’s pro se brief to this Court, he raises three claims for our

review:

      1.)   Did the PCRA [c]ourt err in failing to permit [A]ppellant to
            withdraw his guilty plea prior to and after resentencing,
            whereas, the determination that the sentence was illegal
            rendered the plea involuntarily induced because [A]ppellant
            was not aware of the statutory maximum for murder in the
            [t]hird [d]egree and, as a consequence, [A]ppellant should
            have been permitted to withdraw his plea and proceed to
            trial?

      2.)   Did the PCRA [c]ourt err in failing to properly dispose of
            [A]ppellant’s PCRA [c]laims and instead render[ing] a
            decision upon claims not presented in the petition?

      3.)   Did the PCRA [c]ourt err in reaching a conclusion that has
            no support in the record, where[] the [c]ourt erroneously
            concluded the victim, Daniel Santiago, was also the robbery
            victim when the record proves the contrary?

Appellant’s Brief at 2.

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       Initially, we observe that Appellant’s second two claims were not

preserved in the Rule 1925(b) statement filed by his prior attorney. However,

the trial court’s Rule 1925(b) order did not inform Appellant “that any issue

not properly included in the [s]tatement timely filed and served … shall be

deemed waived[,]” as required by Pa.R.A.P. 1925(b)(3). Consequently, we

will not deem Appellant’s second two issues waived for our review.            See

Greater Erie Indus. Development Corp. v. Presque Isle Downs, Inc.,

88 A.3d 222, 225 (Pa. Super. 2014) (en banc) (holding that, “[i]n determining

whether an appellant has waived his issues on appeal based on non-

compliance with [Rule] 1925, it is the trial court’s order that triggers an

appellant’s obligation[;] … therefore, we look first to the language of that

order”) (citations omitted).

       Appellant first contends that the court erred by not permitting him to

withdraw his guilty plea prior to, or after, his resentencing.3 This Court has

explained:

              A pre-sentence motion to withdraw a guilty plea should be
       liberally allowed and should be granted for any fair and just reason
       unless granting the motion would cause substantial prejudice to
       the Commonwealth. An assertion of innocence can constitute a
____________________________________________


3 To the extent Appellant initially frames this issue as a claim that his trial
counsel acted ineffectively by advising him to plead guilty, such an argument
is not properly before us. As stated supra, our jurisdiction over this appeal
was triggered by the timely notice of appeal filed by Appellant’s counsel, in
which counsel stated that Appellant was appealing from the judgment of
sentence imposed on October 10, 2017. Thus, our review is limited to claims
involving “the re-sentencing procedure itself[,]” Commonwealth v.
McKeever, 947 A.2d 782, 786 (Pa. Super. 2008), and we cannot consider
any claims related to the PCRA court’s denial of Appellant’s petition.

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       fair and just reason for plea withdrawal. In the context of a pre-
       sentence request for plea withdrawal, the term “prejudice” means
       that, due to events occurring after the entry of the plea, the
       Commonwealth’s prosecution of its case is in a worse position that
       it would have been had the trial taken place as originally
       scheduled. Thus, prejudice is about the Commonwealth’s ability
       to try its case, not about the personal inconvenience to
       complainants unless that inconvenience somehow impairs the
       Commonwealth’s prosecution.

Commonwealth v. Gordy, 73 A.3d 620, 623–24 (Pa. Super. 2013) (cleaned

up).
       In contrast, when a defendant moves to withdraw a guilty plea
       after sentencing, the standard is far more stringent. Post-
       sentence motions for withdrawal are subject to higher scrutiny
       since courts strive to discourage entry of guilty pleas as sentence-
       testing devices. A defendant must demonstrate that manifest
       injustice would result if the court were to deny his post-sentence
       motion to withdraw a guilty plea.

Commonwealth v. Islas, 156 A.3d 1185, 1188 (Pa. Super. 2017) (cleaned

up).

       Finally, we note:

             The decision to grant or deny a motion to withdraw a guilty
       plea rests within the trial court’s discretion, and we will not disturb
       the court’s decision on such motion unless the court abused that
       discretion. An abuse of discretion is not a mere error in judgment
       but, rather, involves bias, ill will, partiality, prejudice, manifest
       unreasonableness, and/or misapplication of law. By contrast, a
       proper exercise of discretion conforms to the law and is based on
       the facts of record.

Gordy, 73 A.3d at 624 (cleaned up).

       Instantly, we do not agree with Appellant that the court abused its

discretion by denying his motion to withdraw his plea, even under the more

liberal, pre-sentence standard for withdrawal.         The written plea colloquy



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makes clear that Appellant was informed that the agreed-upon, aggregate

sentence was 25 to 50 years’ incarceration. See Written Guilty Plea Colloquy,

6/21/16, at 1. At the oral plea colloquy, the court again stated that Appellant

was “getting 25 to 50 years in jail” in exchange for his plea.                 N.T.

Plea/Sentencing, 6/21/16, at 5.4               Appellant voluntarily and knowingly

accepted this plea agreement, expressing no reservations about signing the

written plea colloquy, and exhibiting no hesitation at the oral plea proceeding.

       While the court ultimately structured Appellant’s aggregate sentence in

an illegal fashion by imposing 25 to 50 years’ incarceration for his third-degree

murder offense, Appellant still received the agreed-upon aggregate term.

Thus, the illegality of Appellant’s third-degree murder sentence did not render

his negotiated plea agreement unknowing, unintelligent, or involuntary.

Accordingly, the court did not abuse its discretion by finding there was no ‘fair

and just’ reason to allow Appellant to withdraw his plea.              Additionally,

Appellant’s sentence is now legal and remains consistent with the terms of the

plea agreement. Thus, no relief is due.

       In Appellant’s next issue, he argues that “the PCRA court erred in failing

to properly dismiss [] [A]ppellant’s PCRA claims and rendering a decision upon

claims not present in the petition.”           Appellant’s Brief at 12 (unnecessary

capitalization omitted).      Again, as discussed supra, we cannot review the

____________________________________________


4The date on the transcript is incorrect, as it states May 11, 2017, but the
parties and the court agree that the guilty plea took place on June 21, 2016.
We use the correct date in citing the transcript.

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decision of the PCRA court, as Appellant’s appeal is from the imposition of his

judgment of sentence. Thus, his second issue is not properly before us.

      Nevertheless, we would conclude that Appellant’s second issue is

meritless. He contends that the PCRA court erred by misconstruing, and not

properly addressing, the claims raised in his petition. While we agree with

Appellant that the court misinterpreted his issues, see fn. 1, supra, we

observe that Appellant’s claims were woefully undeveloped in his petition. For

instance, Appellant stated, in pertinent part:

      5. Counsel’s advise [sic] was objectively unreasonable in light of
      the alleged evidence and preliminary facts; and deprived
      [Appellant] of his Sixth Amendment right to be tried by a jury after
      one had been selected according to the wishes of [Appellant].

      6. Counsel convinced [Appellant] to give-up [sic] this cherished
      right through fear and coersion [sic] and intimidation.

      7. [Appellant] claims that his acceptance of the offered 50[-]year
      sentence was not a knowing, intelligent and voluntary plea. That
      counsel has withheld and misrepresented discovery information in
      the case.

      ***

      9. Eyewitness accounts of what led to the victims [sic] death in
      this case were overwhelmingly conducive to a number of defenses
      which counsel failed to explain and or explore, where such
      defenses were the wishes of [Appellant].

Appellant’s Pro Se PCRA Petition, 5/21/17, at 2-3 (unnecessary capitalization

omitted).

      Appellant did not explain what advice counsel specifically gave him that

was erroneous, how counsel coerced him into giving up his right to go to trial,

or what ‘discovery information’ counsel misrepresented.        He also did not


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discuss what defenses were available to him that counsel failed to explain to

him. Additionally, Appellant’s PCRA counsel did not expound on any of the

above-stated claims in the amended petition. See Amended Petition, 8/1/17,

at 2-5. Accordingly, we would conclude that the PCRA court properly denied

Appellant’s petition, were we able to review that decision herein.

      Finally, in Appellant’s third issue, he challenges the court’s statement,

in the factual summary of its Rule 1925(a) opinion, that Appellant “was first

approached by a male who confronted [Appellant] about a robbery the night

before of his friend, Daniel Santiago, requesting that [Appellant] return what

he had taken.”    Appellant’s Brief at 14 (quoting TCO at 3).      According to

Appellant, “[t]his factual conclusion is in error” because “[n]othing in the

record supports the conclusion that Daniel Santiago was the robbery victim

from the night before his murder.” Id. Appellant then claims that because

the court “relied upon an incorrect factual determination in dismissing his

petition[,]” it somehow invalidates Appellant’s guilty plea. Id.

      This argument is clearly illogical and meritless.     Even if the court’s

factual recitation in its Rule 1925(a) opinion is incorrect, as Appellant claims,

he does not discuss how that error impacted the validity of the guilty plea he

entered years before the court drafted its opinion. Additionally, we cannot

address Appellant’s bald assertion that this alleged factual inaccuracy

impacted the PCRA court’s decision to deny his petition, as this is an appeal

from Appellant’s judgment of sentence. Thus, Appellant’s third issue does not

warrant relief.

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     Judgment of sentence affirmed.

     Judge Olson joins this memorandum.

     President Judge Emeritus Ford Elliott concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/19




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