J-S77011-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

WAYNE D. IMBALZANO

                            Appellant                 No. 644 MDA 2016


            Appeal from the Judgment of Sentence August 13, 2015
             In the Court of Common Pleas of Lackawanna County
              Criminal Division at No(s): CP-35-CR-0000191-2015


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

MEMORANDUM BY PANELLA, J.                        FILED DECEMBER 28, 2016

        Appellant, Wayne D. Imbalzano, appeals from the judgment of

sentence entered after he pled guilty to one count of statutory sexual

assault, victim under 16 years old and 11 or more years younger than the

defendant, and one count of corruption of minors. Imbalzano contends that

the trial court erred in refusing to let him withdraw his guilty plea after

sentencing, or in the alternative, that the trial court abused its discretion in

imposing sentence. After careful review, we affirm.

        In September 2014, the Carbondale Police Department charged

Imbalzano with statutory sexual assault, aggravated indecent assault, and

multiple counts of endangering the welfare of a child and corruption of
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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minors. At a subsequent bail revocation hearing, Imbalzano entered a guilty

plea to one count of statutory sexual assault, victim under 16 and 11 years

younger than defendant, and one count of corruption of minors.

      It is undisputed that Imbalzano is approximately 10 years and 10

months older than the victim, and not 11 years older. However, Imabalzano

raised no objection, and the court scheduled a sentencing hearing for several

months later.

      On the statutory sexual assault charge, the Pennsylvania Sentencing

Guidelines recommended an eighteen to thirty month minimum term of

imprisonment.     The   trial   court     sentenced    Imbalzano    to   a   period   of

imprisonment of five to ten years.

      On the corruption of minors charge, the guidelines recommended an

aggravated range minimum sentence of twelve months. The trial court

sentenced Imbalzano to a period of imprisonment of twelve to twenty-four

months.

      Imbalzano    immediately          filed   a   post-sentence   motion     seeking

withdrawal of his guilty plea and reconsideration of his sentence. The trial

court denied the petition, and this timely appeal followed.

      On appeal, Imbalzano first argues that the trial court erred in denying

him permission to withdraw his guilty plea. “There is no absolute right to

withdraw a guilty plea, and the decision as to whether to allow a defendant




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to do so is a matter within the sound discretion of the trial court.” (citation

omitted).

      A trial court can only grant a post-sentence motion to withdraw a

guilty plea upon a showing of prejudice that amounts to “manifest injustice.”

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

(citation omitted). “A plea rises to the level of manifest injustice when it was

entered into involuntarily, unknowingly, or unintelligently.” Id. (citation

omitted).

      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. 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. Rush, 909 A.2d 805, 808 (Pa. Super. 2006) (citation

omitted). “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.” Id.

(citation omitted).

      Imbalzano contends that he cannot have knowingly, intelligently, and

voluntarily pled guilty to a crime that he could not have legally committed.

Specifically he highlights that the statutory sexual assault charge to which

he pled guilty, 18 Pa.C.S.A. § 3122.1B, requires that he was at least eleven




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years older than the victim at the time the crime was committed. As noted,

it is undisputed that he was not.

       “The entry of a negotiated plea is a ‘strong indicator’ of the

voluntariness of the plea.”   Commonwealth v. Reid, 117 A.3d 777, 783

(Pa. Super. 2015) (citation omitted). At Imbalzano’s guilty plea hearing, the

prosecutor noted that Imbalzano was “going to stipulate that [section

3122.1B] is the subsection that’s applicable in this case and agree to any of

the penalties that would come from that particular subsection.” N.T., Guilty

Plea Hearing, 3/13/15, at 2. Shortly thereafter, the prosecutor explained

that “with regard to any additional charges that would have stemmed from

the bail violations at this point with the entering of the guilty plea in this

matter, … it’s a global agreement with regard to any additional charges.”

Id., at 4. Imbalzano’s counsel subsequently stated, “I have heard the terms

of the plea agreement. I believe that they’re accurate, Your Honor.” Id., at

4-5.

       While Imbalzano argues that there is no evidence of record that there

was a plea agreement, nor any indication of the terms of that agreement,

the record does not support his argument. Imbalzano clearly pled guilty

pursuant to an agreement with the Commonwealth, and did not object to the

terms of the agreement presented to the court. Under these circumstances,

we cannot conclude that the trial court abused its discretion in finding that

Imbalzano’s plea was knowing and voluntary.


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      In his second issue, Imbalzano argues that the trial court abused its

discretion in imposing sentence. He concedes that his argument challenges

the discretionary aspects of the trial court’s sentence. See Appellant’s Brief,

at 8. “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted). When challenging the discretionary aspects

of the sentence imposed, an appellant must present a substantial question

as to the inappropriateness of the sentence. See Commonwealth v.

Tirado, 870 A.2d 362, 365 (Pa. Super. 2005). “Two requirements must be

met before we will review this challenge on its merits.” McAfee, 849 A.2d at

274. “First, an appellant must set forth in his brief a concise statement of

the reasons relied upon for allowance of appeal with respect to the

discretionary aspects of a sentence.” Id. (citation omitted).

      “Second, the appellant must show that there is a substantial question

that the sentence imposed is not appropriate under the Sentencing Code.”

Id. (citation omitted). That is, “the sentence violates either a specific

provision of the sentencing scheme set forth in the Sentencing Code or a

particular fundamental norm underlying the sentencing process.” Tirado,

870 A.2d at 365 (citation omitted). We examine an appellant’s Rule 2119(f)

statement to determine whether a substantial question exists. See id. “Our

inquiry must focus on the reasons for which the appeal is sought, in contrast


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to the facts underlying the appeal, which are necessary only to decide the

appeal on the merits. Id. (citation omitted).

      In the present case, Imbalzano’s appellate brief contains the requisite

Rule 2119(f) concise statement. Furthermore, he preserved his argument

against the discretionary aspects of his sentence through a post-sentence

motion. Thus, he is in technical compliance with the requirements to

challenge the discretionary aspects of a sentence.

      Imbalzano argues in his Rule 2119(f) statement that the trial court

considered inappropriate factors in imposing a sentence outside the

guideline ranges for the statutory sexual assault charge. A claim that the

sentencing court imposed a sentence outside of the guidelines without

specifying sufficient reasons presents a substantial question for our review.

See Commonwealth v. Holiday, 954 A.2d 6, 10 (Pa. Super. 2008). We

therefore turn to the merits of Imbalzano’s arguments.

      Imbalzano specifically argues that the trial court “double-counted”

certain factors in arriving at its decision to impose a sentence above the

aggravated range of the guidelines. Preliminarily, we note that the trial court

had the benefit of a pre-sentence investigation report (“PSI”). See N.T.,

Sentencing, 8/13/15 at 14. Where the sentencing court had the benefit of

reviewing a PSI, we must

      presume that the sentencing judge was aware of relevant
      information regarding the defendant's character and weighed
      those considerations along with mitigating statutory factors. A
      pre-sentence report constitutes the record and speaks for itself.

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     In order to dispel any lingering doubt as to our intention of
     engaging in an effort of legal purification, we state clearly that
     sentencers are under no compulsion to employ checklists or any
     extended or systematic definitions of their punishment
     procedure. Having been fully informed by the pre-sentence
     report, the sentencing court's discretion should not be disturbed.
     This is particularly true, we repeat, in those circumstances where
     it can be demonstrated that the judge had any degree of
     awareness of the sentencing considerations, and there we will
     presume also that the weighing process took place in a
     meaningful fashion. It would be foolish, indeed, to take the
     position that if a court is in possession of the facts, it will fail to
     apply them to the case at hand.

Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citation

omitted).

     In imposing sentence, the trial court noted that Imbalzano was on

parole for a similar crime involving a minor victim when he committed the

current offenses. See N.T., Sentencing, 8/13/15 at 3; 26-28. Furthermore,

while on bail pending resolution of the current charges, Imbalzano lured the

victim out of her parents’ home to have contact with her in the middle of the

night. See id., at 28. The trial court noted that these circumstances

indicated that not only had Imbalzano failed to be rehabilitated, but that he

had quickly resumed his predatory tendencies towards minors. See id.

     These circumstances are certainly sufficient to justify the trial court’s

departure from the guidelines. Imbalzano has demonstrated that he is a

threat to public safety, and that he needs a significant amount of

rehabilitation before he can be exposed to the public again. We conclude




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that the trial court did not abuse its discretion, and therefore Imbalzano’s

final argument merits no relief.

      Judgment of sentence affirmed. Jurisdiction relinquished.

      Judge Platt joins in the memorandum.

      Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/28/2016




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