J-A29025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    AARON HAYNES,

                             Appellant               No. 2173 EDA 2016


             Appeal from the Judgment of Sentence January 7, 2016
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0002625-2014



    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    AARON HAYNES,

                             Appellant               No. 2175 EDA 2016


             Appeal from the Judgment of Sentence January 7, 2016
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0005462-2015


BEFORE: LAZARUS, J., PLATT, J.,* and STRASSBURGER, J.*

MEMORANDUM BY PLATT, J.:                         FILED FEBRUARY 05, 2018



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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      Appellant, Aaron Haynes, appeals from the judgment of sentence

imposed following his guilty plea convictions of theft and violations of the

Uniform Firearms Act (VUFA). Specifically, he challenges the validity of his

guilty pleas and the discretionary aspects of his sentences. We affirm.

      We take the factual history in this matter from the trial court’s

September 12, 2016 opinion.

            On February 19, 2014[, Appellant] was arrested on the 1500
      block of North Redfield in the city and county of Philadelphia, after
      police officers responded to [a] report of a person with a gun. The
      police observed [Appellant] exit the passenger side of a car and
      begin walking northbound.           The police officers observed
      [Appellant] with a black semi-automatic handgun in his hand.
      [Appellant] was arrested with the gun[,] which was a 40mm semi-
      automatic handgun that was loaded with seven [] live rounds in
      the magazine and one [] in the chamber. [Appellant] was arrested
      and charged [(at Docket No. 2625-2014)] with [VUFA]—
      Possession of a Firearm Without a License to Carry, VUFA—
      Carrying a Firearm [i]n Public [i]n Philadelphia, and VUFA—
      Possession of a Firearm by a Prohibited Person. On September
      10, 2014[,] while out on bail for the VUFA case, [Appellant] was
      arrested on the 1500 block of North Redfield for Possession with
      Intent to Deliver. [Appellant] had under a gram of crack cocaine
      and $130 [i]n his possession. [Appellant] was observed making
      one sale prior to his arrest. While again out on bail, on May 13,
      2015[, Appellant] was again on [the] 1500 block of North Redfield
      in the city and county of Philadelphia, when the police observed
      [him] with several males standing in front of an abandoned
      property when he attempted to flee from the police and discarded
      a gun. The gun was a semi-automatic handgun loaded with
      thirteen [] live rounds, and had previously been reported stolen.
      [Appellant] was arrested and charged [(at Docket No. 5462-
      2015)] with VUFA—Possession of a Firearm Without a License to
      Carry, VUFA—Carrying a Firearm [i]n Public [i]n Philadelphia, and
      Theft—Receiving Stolen Property.

(Trial Court Opinion, 8/12/16, at 1-2) (record citations omitted).




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J-A29025-17



        On September 8, 2015, Appellant entered into an open guilty plea at

Docket No. 5462-2015, to theft by receiving stolen property, firearms not to

be carried without a license, and carrying a firearm in public in Philadelphia.1

On January 7, 2016, he entered into an open guilty plea at Docket No. 2625-

2014, to firearms not to be carried without a license, carrying a firearm in

public in Philadelphia, and possession of a firearm by a prohibited person.2

Following Appellant’s guilty pleas, the court conducted a sentencing hearing.

        At Docket No. 5462-2015, the court imposed consecutive sentences of

not less than five nor more than ten years of incarceration for theft by

receiving stolen property, not less than three and one-half nor more than

seven years for firearms not to be carried without a license, and not less than

two and one-half nor more than five years for carrying a firearm in public in

Philadelphia.

        At Docket No. 2625-2014, the court imposed consecutive sentences of

not less than three and one-half nor more than seven years for firearms not

to be carried without a license, not less than two and one-half nor more than

five years for carrying a firearm in public in Philadelphia, and not less than

two and one half nor more than five years for possession of a firearm by a

prohibited person. The court imposed the sentence at Docket No. 2625-2014,

concurrent to the sentence at Docket No. 5462-2015.
____________________________________________


1   See 18 Pa.C.S.A. §§ 3925(a), 6106(a)(1), and 6108 respectively.

2   See 18 Pa.C.S.A. §§ 6106(a)(1), 6108, and 6105(a)(1) respectively.


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       Also, on January 7, 2016, Appellant pleaded guilty at Docket No. 13995-

2014, to possession with intent to deliver a controlled substance. The trial

court imposed a term of ten years of probation at this count consecutive to

the sentences imposed at Docket Nos. 5462-2015 and 2625-2014. Appellant

did not appeal this sentence.

       Thus, Appellant’s aggregate term of imprisonment was not less than

eleven nor more than twenty-two years, followed by ten years of probation.

Appellant filed a post-sentence motion to reconsider in which he claimed that

the sentence imposed was excessive; he did not challenge the validity of his

guilty pleas.    On June 2, 2016, following a hearing, the court denied his

motion. This timely appeal followed.3

       Appellant raises two issues on appeal.

       1)     Whether both the trial court and defense counsel failed to
              inform [Appellant] on the record as required by Pa.R.Crim.P.
              590(a)(3) of the elements and nature of the charges against
              him and the permissible ranges of sentences and/or fines
              for the offenses charged such that [Appellant’s] guilty plea
              was not knowingly, intelligently and voluntarily entered?

       2)     Whether the sentencing court sentenced outside the
              applicable sentencing guidelines, failed to consider
              [Appellant’s] rehabilitative needs and the sentence is
              unreasonable[?]

(Appellant’s Brief, at 4).




____________________________________________


3 Pursuant to the trial court’s order, Appellant filed his statement of errors
complained of on appeal on August 10, 2016. The trial court entered its
opinion on September 12, 2016. See Pa.R.A.P. 1925.

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J-A29025-17



      In his first issue, Appellant challenges the validity of his guilty pleas.

(See id. at 10-20). Because he did not raise this claim before the trial court,

it is waived.

             . . . [I]ssues not preserved in the trial court may not be
      pursued before this Court. [See] Pa.R.A.P. 302(a). For example,
      a request to withdraw a guilty plea on the grounds that it was
      involuntary is one of the claims that must be raised by motion in
      the trial court in order to be reviewed on direct appeal. . . .

Commonwealth v. Rush, 959 A.2d 945, 948–49 (Pa. Super. 2008), appeal

denied, 972 A.2d 521 (Pa. 2009) (case citation omitted); see 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.”). Appellant did not raise his challenge to the validity of

the guilty pleas in the trial court either during sentencing or in his post-

sentence motion. Therefore, Appellant’s first issue is waived.

      Moreover, to the extent that Appellant alleges the ineffectiveness of plea

counsel for failure to explain the elements and nature of the charges against

him, he is raising an ineffective assistance of counsel claim, which is not

proper on direct appeal. “[A]s a general rule, claims of ineffective assistance

of counsel will not be entertained on direct appeal.”      Commonwealth v.

Liston,   977   A.2d   1089,   1094    (Pa.   2009)   (citation   omitted);   see

Commonwealth v. Baker, 72 A.3d 652, 665 (Pa. Super. 2013), appeal

denied, 86 A.3d 231 (Pa. 2014) (requiring valid waiver of PCRA review prior

to review of ineffectiveness claims on direct appeal). Appellant has not waived




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J-A29025-17



his right to collateral review, thus we decline to consider his claim of ineffective

assistance of counsel.4

       In his second issue, Appellant challenges the discretionary aspects of

his sentence. (See Appellant’s Brief, at 21-30). Our standard of review of a

challenge to the discretionary aspects of a sentence is well-settled.

             The right to appellate review of the discretionary aspects of
       a sentence is not absolute, and must be considered a petition for
       permission to appeal. An appellant must satisfy a four-part test
       to invoke this Court’s jurisdiction when challenging the
       discretionary aspects of a sentence.

                    [W]e conduct a four-part analysis to determine:
              (1) whether appellant has filed a timely notice of
              appeal; (2) whether the issue was properly preserved
              at sentencing or in a motion to reconsider and modify
              sentence; (3) whether appellant’s brief has a fatal
              defect; and (4) whether there is a substantial question
              that the sentence appealed from is not appropriate
              under the Sentencing Code.

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014), appeal

denied, 117 A.3d 297 (Pa. 2015) (citations omitted).

       In the instant case, Appellant filed a timely notice of appeal and

preserved his issues in a post-sentence motion.          He included a Pa.R.A.P.
____________________________________________


4 Furthermore, we observe that both of Appellant’s signed written guilty plea
colloquies state: “My lawyer told me what the elements of the crimes(s)
are[,]” and “The crimes and elements of the crime(s) have been explained to
me.” (Written Guilty Plea Colloquy, at 1, 3). An appellant is bound by
statements made during the plea colloquy, including written guilty plea
colloquies, and cannot later assert grounds for withdrawing his plea that
contradict such statements. See Commonwealth v. Reid, 117 A.3d 777,
784 (Pa. Super. 2015).




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J-A29025-17



2119(f) statement in his brief.5 (See generally Appellant’s Brief, at 21-23).

Therefore, we must determine whether he has raised a substantial question.

             A substantial question will be found where an appellant
       advances a colorable argument that the sentence imposed is
       either inconsistent with a specific provision of the Sentencing Code
       or is contrary to the fundamental norms which underlie the
       sentencing process. At a minimum, the Rule 2119(f) statement
       must articulate what particular provision of the code is violated,
       what fundamental norms the sentence violates, and the manner
       in which it violates that norm.

Zirkle, supra at 132 (citation omitted).

       In his Rule 2119(f) statement, Appellant claims that the trial court

abused its discretion when it imposed his sentences consecutively and that

the trial court considered improper factors when imposing its sentence. (See

Appellant’s Brief, at 21-23).

             A court’s exercise of discretion in imposing a sentence
       concurrently or consecutively does not ordinarily raise a
       substantial question. Rather, the imposition of consecutive rather
       than concurrent sentences will present a substantial question in
       only the most extreme circumstances, such as where the
       aggregate sentence is unduly harsh, considering the nature of the
       crimes and the length of imprisonment.

Commonwealth v. Caldwell, 117 A.3d 763, 769 (Pa. Super. 2015) (en

banc), appeal denied, 126 A.3d 1282 (Pa. 2015) (citations and quotation

____________________________________________


5 We note that, contrary to requirements set forth by this Court, Appellant’s
Rule 2119(f) statement is not a “separate section of the brief[,]” as required
by Rule 2119(f). Pa.R.A.P. 2119(f). The Commonwealth has objected to this
deficiency. (See Commonwealth’s Brief, at 14-15). However, because this
omission does not materially impede our appellate review, in the interest of
judicial economy, we consider Appellant’s statement to be technically
compliant. See Commonwealth v. Davis, 734 A.2d 879, 882 (Pa. Super.
1999).

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J-A29025-17



marks omitted); see Commonwealth v. Swope, 123 A.3d 333, 340 (Pa.

Super. 2015) (challenge to consecutive sentences and claim of failure to

consider mitigating factors together presented substantial question).

      Based on our review, we conclude that Appellant’s challenge to the

imposition of his consecutive sentences as manifestly excessive, together with

his claim that the trial court relied on an impermissible factor, presents a

substantial question. See Caldwell, supra at 769. Therefore, we address

the merits of his claim.

      Appellant contends that the trial court abused its discretion “by

sentencing [him] to serve consecutive sentences of incarceration that

aggravated [sic] to a lengthy state prison sentence[;] by not considering

mitigation evidence[;] and [by] relying on unreliable information that affected

the court’s impartiality.”    (Appellant’s Brief, at 21; see id. at 21-30).

Specifically, he argues that the trial court abused its discretion when it

imposed consecutive aggravated sentences on each VUFA charge, where none

of the cases involved violence. (See id. at 27-28). He further asserts that

the court abused its discretion because it suggested that he terrorized the

neighborhood and relied on the Commonwealth’s misrepresentation that he

was released on bail that had been lowered by the sentencing judge. (See

id. at 28-30). We disagree.

                   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,

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J-A29025-17


            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.

             When imposing a sentence, the sentencing court must
      consider the factors set out in 42 Pa.C.S.A. § 9721(b), that is, the
      protection of the public, gravity of offense in relation to impact on
      victim and community, and rehabilitative needs of the defendant.
      . . . [A]nd, of course, the court must consider the sentencing
      guidelines.

Commonwealth v. Fullin, 892 A.2d 843, 847–48 (Pa. Super. 2006)

(citations and quotation marks omitted); see also 42 Pa.C.S.A. § 9721.

      Here, after imposing its sentence, and in response to Appellant’s motion

to reconsider, the trial court explained that it

      Consider[ed] the guidelines in sentencing [Appellant], but
      deviated from them based on the protection of the community,
      prevention, punishments and rehabilitation. It would appear that
      [Appellant] is a terror on Redfield Street with his two gun
      convictions and a drug conviction. After [Appellant] was arrested
      for his first offense in February 2014, he was released on bail[,]
      but then was arrested for Possession with Intent to Deliver and
      another VUFA violation. [Appellant’s] second VUFA arrest was
      with a stolen gun. [Appellant] is a threat to the public and has no
      intention of stopping his criminal activities. . . .

(Trial Ct. Op., at 6).       During sentencing, after Appellant moved for

reconsideration of the sentence, the court explained that it “gave him the

benefit of concurrent sentences. . . . I gave him the benefit of probation. . .

. I could have given him a much larger sentence. I could have given him,




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J-A29025-17



like, 12 and a half to 25 years. I could have given him 20 to 40.” (N.T.

Hearing, 1/07/16, at 23).6

       Cognizant of our standard of review, we discern no abuse of the trial

court’s discretion in imposing aggravated-range sentences consecutively,

particularly when the trial court imposed the sentences at Docket Nos. 5462-

2015 and 2625-2014 concurrently.                   See Fullin, supra at 847-48.

Furthermore, we find no abuse of discretion where, although the particular

judge had not lowered Appellant’s bail, the trial court’s reliance on the fact

that Appellant committed the second set of VUFA violations while released on

bail that had been lowered (by a different judge) was accurate. Finally, we

conclude that the trial court’s characterization of Appellant’s actions as “a

terror on Redfield Street,” does not evidence an abuse of discretion where

Appellant was twice apprehended for gun offenses on that particular street.

(Trial Ct. Op., at 6). Appellant has not demonstrated that the sentence was

manifestly unreasonable or the result of partiality, prejudice, bias or ill-will.

See Fullin, supra at 847-48. Appellant’s second issue does not merit relief.

       Judgment of sentence affirmed.




____________________________________________


6The statutory maximum aggregate sentence at Docket Nos. 5462-2015 and
2625-2014, was not less than nineteen and one-half nor more than thirty-nine
years’ imprisonment.

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J-A29025-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/5/18




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