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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                     v.                    :
                                           :
PAUL BROWN,                                :         No. 3104 EDA 2015
                                           :
                          Appellant        :


           Appeal from the Judgment of Sentence, August 18, 2015,
               in the Court of Common Pleas of Lehigh County
              Criminal Division at No. CP-39-CR-0000363-2015


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED JULY 11, 2016

        Paul Brown appeals from the August 18, 2015 judgment of sentence

entered by the Lehigh County Court of Common Pleas as the result of his

conviction of criminal use of a communications facility.1 We affirm.

        The trial court provided the following factual and procedural history:

                    On [August 27, 2015, appellant] filed Post
              Sentence Motions in the form of a Motion for
              Reconsideration of Sentence and a Motion to
              Withdraw Guilty Plea. The relevant facts are as
              follows: On July 8, 2015, [appellant] entered a plea
              of guilty to one (1) count of Criminal Use of a
              Communications Facility. Pursuant to the negotiated
              plea agreement, the minimum sentence was not to
              exceed the standard range of the sentencing
              guidelines and there was no opposition to a County
              Sentence. A Pre-Sentence Investigation report was
              ordered.    On August 18, 2015, [appellant] was
              sentenced to an aggregate term of imprisonment of

1
    18 Pa.C.S.A. § 7512(a).
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            not less than one and [one] half (1½) years nor
            more than five (5) years in a state correctional
            facility. Thereafter, on August 27, 2015, [appellant]
            filed the within Post Sentence Motions pursuant to
            Pennsylvania Rule of Criminal Procedure Rule 720. A
            hearing was conducted on [appellant’s] motion on
            September 15, 2015.

Trial court opinion, 11/16/15 at 1-2.

      The trial court denied appellant’s motion on September 16, 2015. On

October 15, 2015, appellant filed a timely notice of appeal. The trial court

ordered appellant to produce a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b) on October 19, 2015, and appellant

complied on November 9, 2015.        On November 16, 2015, the trial court

issued an opinion pursuant to Pa.R.A.P. 1925(a).

      Appellant raises the following issues for our review:

            1.     Did the lower court err and abuse its discretion
                   when it denied [appellant’s] motion to
                   withdraw his guilty plea?

            2.     Did the lower court err and abuse its discretion
                   when it denied [appellant’s] motion to
                   reconsider sentence?

Appellant’s brief at 6.

      When considering post-sentence motions for the withdrawal of a guilty

plea, we are held to the following standard:

            “[P]ost-sentence motions for withdrawal are subject
            to higher scrutiny since courts strive to discourage
            entry of guilty pleas as sentence-testing devices.”
            [Commonwealth v. Flick, 802 A.2d 620, 623
            (Pa.Super. 2002).] A defendant must demonstrate
            that manifest injustice would result if the court were


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           to deny his post-sentence motion to withdraw a
           guilty plea. Id., citing Commonwealth v. Gunter,
           565 Pa. 79, 771 A.2d 767 (2001); [Commonwealth
           v. Kirsch, 930 A.2d 1282, 1284 (Pa.Super. 2007)].
           “Manifest injustice may be established if the plea was
           not    tendered     knowingly,    intelligently,   and
           voluntarily.” Commonwealth v. Hodges, 789 A.2d
           764, 765 (Pa.Super. 2002), citing Commonwealth
           v. Persinger, 532 Pa. 317, 615 A.2d 1305 (1992).
           In determining whether a plea is valid, the court
           must examine the totality of circumstances
           surrounding the plea.           Commonwealth v.
           Flanagan, 578 Pa. 587, 854 A.2d 489, 500 (2004).
           A deficient plea does not per se establish prejudice
           on the order of manifest injustice. Commonwealth
           v. Carter, 540 Pa. 135, 656 A.2d 463 (1995);
           Commonwealth v. Yager, 454 Pa.Super. 428, 685
           A.2d 1000 (1996), appeal denied, 549 Pa. 716,
           701 A.2d 577 (1997).

Commonwealth v. Broaden, 980 A.2d 124, 129 (Pa.Super. 2009), appeal

denied, 992 A.2d 885 (Pa. 2010).

           As discussed above, to establish manifest injustice,
           Appellant must show that his plea was entered in an
           involuntary, unknowing, or unintelligent manner.
           [Commonwealth v. Stork, 737 A.2d 789, 790
           (Pa.Super. 1999).] To ascertain whether Appellant
           acted in such manner, we must examine the guilty
           plea colloquy. The colloquy must inquire into the
           following areas: “(1) the nature of the charges;
           (2) the factual basis of the plea; (3) the right to trial
           by jury; (4) the presumption of innocence; (5) the
           permissible range of sentences; and (6) the judge’s
           authority to depart from any recommended
           sentence.” Commonwealth v. Burkholder, 719
           A.2d 346, 349 n. 5 (Pa.Super. 1998) (citation
           omitted). This Court evaluates the adequacy of the
           guilty plea colloquy and the voluntariness of the
           resulting plea by examining the totality of the
           circumstances surrounding the entry of that plea.
           Commonwealth v. Lewis, 708 A.2d 497, 501
           (Pa.Super. 1998).


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Commonwealth v. Muhammad, 794 A.2d 378, 383-384 (Pa.Super. 2002).

            The law does not require that an appellant be
            pleased with the results of the decision to enter a
            guilty plea; rather “[a]ll that is required is that
            [appellant’s] decision to plead guilty be knowingly,
            voluntarily      and        intelligently    made.”
            Commonwealth v. Moser, 921 A.2d 526, 528-29
            (Pa.Super. 2007).

            A defendant is bound by the statements made during
            the plea colloquy, and a defendant may not later
            offer reasons for withdrawing the plea that contradict
            statements made when he pled. Commonwealth
            v. McCauley, 797 A.2d 920, 922 (Pa.Super. 2001).

Commonwealth v. Brown, 48 A.3d 1275, 1277-1278 (Pa.Super. 2012),

appeal denied, 63 A.3d 773 (Pa. 2013).

      Appellant avers that he never understood the nature of the plea

agreement. (Appellant’s brief at 11.) This allegation is belied by the record.

During the guilty plea hearing, the following facts were read into the record

and acknowledged by appellant:

            THE COURT: All right. I’ll hear the facts.

            [THE COMMONWEALTH]: Your Honor, between the
            month of October 1st and October 31st of last year,
            2014, Agents with the Office of the Attorney General
            obtained Orders from the Superior Court to intercept
            the telephone lines of Luis Oquendo, Jose Santana,
            and a Juhad Keyes.

            A number subscribed to Mr. Brown appeared on
            Mr. Oquendo’s      line   and    conversations were
            intercepted by those Agents between Mr. Oquendo
            and Mr. Brown that the Agents interpreted as
            relating to the delivery of cocaine.



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             Those conversations -- excuse me -- those intercepts
             were, I would say, approximately four to five during
             the course of the month.

             THE COURT: Is that what you did?

             [APPELLANT]: Yes, ma’am.

             THE COURT:      You used the telephone to commit
             crime.

             [APPELLANT]: Yes, ma’am. I was, um, at the
             present time I wasn’t here in Pennsylvania. I was in
             North Carolina. And, um, an associate that I
             knew called me asking me for some drugs and I
             referred him to somebody else, so, yes, ma’am.

Notes of testimony, guilty plea, 7/8/15 at 6-7 (emphasis added).2

      At his sentencing hearing, appellant avers that his acceptance of the

guilty plea was the result of a “misunderstanding,” and that the plea had

“nothing to do with the sale, distribution of cocaine.” (Appellant’s brief at

12; notes of testimony, sentencing, 8/18/15 at 6-7.) After consultation with

defense counsel during a court recess, appellant later acknowledged

“plead[ing] out [] referring to a phone call that [he] made for someone else

. . .” (Id. at 9.)

      Because appellant is bound by the statements he made during the

guilty plea colloquy, we, therefore, find that the record supports the

conclusion that appellant’s guilty plea was knowing, intelligent, and


2
 During the guilty plea    hearing, appellant, when asked by the trial court if
he had any questions       regarding his rights or the charge against him,
answered, “No, ma’am.       I understand my wrongdoing and I’m just here to
own up to it.” (Notes of   testimony, 7/8/15 at 6-7.)


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voluntary, and as a result, a manifest injustice did not occur in this case.

Accordingly, we find that appellant’s first issue has no merit.

      In appellant’s second issue for our review, appellant requests that we

review his sentence imposed by the trial court.

            [T]he proper standard of review when considering
            whether      to    affirm    the    sentencing   court’s
            determination is an abuse of discretion. . . . [A]n
            abuse of discretion is more than a mere error of
            judgment; thus, a sentencing court will not have
            abused its discretion unless the record discloses that
            the     judgment        exercised     was     manifestly
            unreasonable, or the result of partiality, prejudice,
            bias or ill-will. In more expansive terms, our Court
            recently offered: An abuse of discretion may not be
            found merely because an appellate court might have
            reached a different conclusion, but requires a result
            of   manifest      unreasonableness,      or   partiality,
            prejudice, bias, or ill-will, or such lack of support so
            as to be clearly erroneous.

            The rationale behind such broad discretion and the
            concomitantly deferential standard of appellate
            review is that the sentencing court is in the best
            position to determine the proper penalty for a
            particular offense based upon an evaluation of the
            individual circumstances before it.

Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)

(citation omitted).

            Challenges to the discretionary aspects of sentencing
            do not entitle an appellant to review as of right.
            Commonwealth v. Sierra, [752 A.2d 910, 912
            (Pa.Super. 2000)].       An appellant challenging the
            discretionary aspects of his sentence must invoke
            this Court’s jurisdiction by satisfying a four-part test:

                  [W]e conduct a four-part analysis to
                  determine: (1) whether appellant has


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                  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.
                  [720]; (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).

Moury, 992 A.2d at 170 (citation omitted).

      Here, we begin our analysis by determining whether appellant has

complied with the procedural requirements of challenging his sentence.

First, appellant timely filed his notice of appeal pursuant to Pa.R.A.P. 902

and 903. Second, he properly preserved the issue in a motion to reconsider

sentence which was filed on August 27, 2015. The sentencing court denied

appellant’s motion on September 16, 2015.

      Third, appellant included a Rule 2119(f) statement in his brief, in

which he avers that “the lower court abused its discretion when it imposed

an excessive sentence of eighteen months[].        An eighteen (18) month

sentence is the top of the standard sentencing guidelines.” (Appellant’s brief

at 3.) In his Rule 2119(f) statement, appellant relies on Commonwealth v.

Monahan, 860 A.2d 180 (Pa.Super. 2004), when he states that the

sentencing court gave insufficient reasons for sentencing appellant to the

high end of the standard guidelines range. Monahan is inapposite here. In

Monahan, this court found that the sentencing court erred when it failed to


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provide sufficient reasons on the record for sentencing the defendant

in excess of the aggravated range of the guidelines. Id. at 182.

        A substantial question is only raised on a sentence within the

guidelines when there are circumstances in which “the application of the

sentencing guidelines would be clearly unreasonable.” Commonwealth v.

Dodge, 77 A.3d 1263, 1270 (Pa.Super. 2013), appeal denied, 91 A.3d 161

(Pa. 2014), quoting 42 Pa.C.S.A. § 9781(c)(2).

                In determining whether a substantial question exists,
                this Court does not examine the merits of whether
                the sentence is actually excessive. Commonwealth
                v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).
                Rather, we look to whether the appellant has
                forwarded a plausible argument that the sentence,
                when it is within the guideline ranges, is clearly
                unreasonable.      Concomitantly, the substantial
                question determination does not require the court to
                decide the merits of whether the sentence is clearly
                unreasonable.

Dodge, 77 A.3d at 1270. Here, appellant alleges that the sentencing court

failed to consider his rehabilitative needs when crafting his sentence.

Appellant also alleges that the sentence imposed was excessive. We have

found    that     such   a   combination     constitutes   a   substantial     question.

Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa.Super. 2015)

(en banc),       appeal      denied,   126    A.3d   1282      (Pa.   2015),    quoting

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.Super. 2014), appeal

denied, 105 A.3d 736 (Pa. 2014).             We, therefore, find that appellant has

raised a substantial question, and will consider his appeal on its merits.



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           Where the sentencing court had the benefit of a
           presentence investigation report (“PSI”), we can
           assume the sentencing court “was aware of relevant
           information regarding the defendant’s character and
           weighed those considerations along with mitigating
           statutory factors.” Commonwealth v. Devers, 519
           Pa. 88, 101-02, 546 A.2d 12, 18 (1988). See also
           Commonwealth v. Tirado, 870 A.2d 362, 368
           (Pa.Super. 2005) (stating if sentencing court has
           benefit of PSI, law expects court was aware of
           relevant information regarding defendant’s character
           and weighed those considerations along with any
           mitigating factors). Further, where a sentence is
           within the standard range of the guidelines,
           Pennsylvania law views the sentence as appropriate
           under the Sentencing Code. See Commonwealth
           v. Cruz-Centeno, 447 Pa.Super. 98, 668 A.2d 536
           (1995), appeal denied, 544 Pa. 653, 676 A.2d
           1195 (1996) (stating combination of PSI and
           standard range sentence, absent more, cannot be
           considered excessive or unreasonable).

Moury, 992 A.2d at 171.

     Here, the trial court indicated on the record that it received and

reviewed appellant’s PSI. (Notes of testimony, 8/18/15 at 2.) Because the

trial court reviewed appellant’s PSI, it is presumed that the trial court was

aware of appellant’s rehabilitative needs.   The trial court then sentenced

appellant, pursuant to the plea agreement, to a term of 18-60 months’

incarceration, which appellant acknowledges is within the standard range of

the sentencing guidelines. We, therefore, find that the sentence imposed by

the trial court is appropriate under the Sentencing Code, and appellant’s

second issue is without merit.

     Judgment of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/11/2016




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