J-A28023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 SAMUEL ANTHONY VERDUCCI                 :
                                         :
                   Appellant             :   No. 349 EDA 2017

          Appeal from the Judgment of Sentence December 16, 2016
              In the Court of Common Pleas of Monroe County
            Criminal Division at No(s): CP-45-CR-0000319-2016


BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J.

MEMORANDUM BY PANELLA, J.                              FILED MAY 29, 2018

      Samuel Anthony Verducci appeals from the judgment of sentence

entered on December 16, 2016, in the Court of Common Pleas of Monroe

County. Verducci argues on appeal that the court imposed an illegal sentence,

as the factual basis for his guilty plea to violating 18 Pa.C.S.A. § 4953(a),

retaliation against a witness, established a misdemeanor of the second

degree, not a felony of the third degree. We affirm.

      We assume the parties’ familiarity with the facts and procedural history

underlying this appeal. We provide the following brief recitation of the

pertinent factual and procedural background. Verducci sent a series of

threatening text messages to Deborah Berrigan, his mother’s guardian. See

Affidavit of Probable Cause, dated 4/30/15. Verducci had numerous issues

with her, see id., and she had testified against him previously in another

matter.
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      The Commonwealth charged Verducci with one count of retaliation

against a witness, 18 Pa.C.S.A. § 4953(a), graded as a felony of the third

degree, and ten counts of harassment, 18 Pa.C.S.A. § 2709(a)(4). The parties

later reached an agreement whereby the Commonwealth agreed to drop all

ten harassment counts if Verducci entered an open plea of guilty to the one

felony count of retaliation.

      The written guilty plea colloquy lists the offense as “Retaliation against

Witness or Victim (F-3).” The form provides the sentencing guideline ranges

for the offense. And it further states that Verducci “understand[s] all of the

elements” of the offense and states that “[o]n December 29, 2014 in POCONO

Township, Monroe County, Pennsylvania[,] I repeatedly threatened and

harassed Deborah Berrigan an appointed guardian of my mother’s person and

estate.” Verducci initialed each page of the written plea colloquy and signed

the last page.

      At the guilty plea hearing, Verducci’s attorney informed the court that

he was “pleading guilty to count one, retaliation against a witness or victim.

It is a felony of the third degree. The facts are that on or about December 29

in Pocono Township, he repeatedly threatened to harass Deborah Berrigan, an

appointed guardian of, I believe, his mother’s person and estate.” Verducci

answered, “Yes, sir, your Honor,” when asked by the court if he wanted to

plead guilty to that offense. The court later imposed a sentence of forty to

eighty months, a sentence at the very beginning of the standard range of the

guidelines. This appeal followed.

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      “Generally, a plea of guilty amounts to a waiver of all defects and

defenses except those concerning the jurisdiction of the court, the legality of

the sentence, and the validity of the guilty plea.” Commonwealth v.

Morrison, 173 A.3d 286, 290 (Pa. Super. 2017) (citation omitted). Verducci

does not contest the validity of the guilty plea itself; he has never alleged the

plea was not knowingly, voluntarily, and intelligently entered. Indeed, he

never moved to withdraw the plea. Instead, Verducci argues the court

imposed an illegal sentence, as the factual basis for the plea does not support

grading the offense as a third-degree felony. “[T]he proper grading of an

offense pertains to the legality of the sentence.” Commonwealth v. Aikens,

139 A.3d 244, 245 (Pa. Super. 2016) (citation omitted).

      To understand Verducci’s argument we must consider 18 Pa.C.S.A. §§

4953(b) and 4952(b)(1). Section 4953(b) provides that “[t]he offense is a

felony of the third degree if the retaliation is accomplished by any of the means

specified in section 4952(b)(1) through (5) (relating to intimidation of

witnesses or victims). Otherwise the offense is a misdemeanor of the second

degree.” The applicable subsection of § 4952 is (b)(1)(i): “The actor employs

force, violence or deception, or threatens to employ force or violence, upon

the witness or victim or, with the requisite intent or knowledge upon any other

person.”

      Before accepting a plea, “the court must determine whether there is a

factual basis for the plea: i.e., whether the facts acknowledged by the

defendant constitute a prohibited offense.” Commonwealth v. Fluharty, 632

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A.2d 312, 314 (Pa. Super. 1993) (citation omitted). See also Pa.R.Crim.P.

590, Comment. This “factual basis” requirement, however, “does not mean

that the defendant must admit every element of the crime.” Fluharty, 632

A.2d at 315 (internal quotation marks and citation omitted). The key is that

the “circumstances surrounding the entry of the plea indicate that the

defendant    understood    the   nature    of   the   charge   against   him.”

Commonwealth v. Schultz, 477 A.2d 1328, 1330 (Pa. 1984) (emphasis

omitted). And absent an assertion that the defendant did not actually

understand the nature of the offenses charged, we can presume the defendant

had notice of the crimes in sufficient detail to support the guilty plea. See

Commonwealth v. Anthony, 475 A.2d 1303, 1306 (Pa. 1984).

      Here, Verducci was twice informed that he was pleading guilty to

felonious retaliation. And he twice affirmatively responded that he understood

that fact. He was also informed, twice, of the underlying circumstances—that

he threatened, via text message, the victim. Again, he affirmatively

responded, two times, that he understood. “[T]he plea of guilt admits that the

facts and intent occurred….” Id., at 1307. And here that is a felonious intent.

So, there was an established factual basis for the plea.

      As the factual basis for the plea supported the application of §

4952(b)(1), we find the court imposed a legal sentence—and one which, as

mentioned, is at the very beginning of the standard guideline range.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/29/18




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