J-S24030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

EDWARD JOSEPH MEDELO,

                            Appellant                 No. 2896 EDA 2014


       Appeal from the Judgment of Sentence entered October 28, 2013
                in the Court of Common Pleas of Lehigh County,
            Criminal Division, at No(s): CP-39-CR-0003579-2012,
           CP-39-CR-0005310-2012 and CP-39-CR-0005314-2012



BEFORE: GANTMAN, P.J., ALLEN, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.:                               FILED APRIL 14, 2015

        Edward Joseph Medelo (“Appellant”) appeals from the judgment of

sentence imposed after he pled nolo contendere to twelve counts of

burglary, two counts of attempted burglary and one count of criminal

conspiracy to commit burglary.1 We affirm.

        The trial court summarized the pertinent facts as follows:

        [Between May 8, 2012 and June 11, 2012], [A]ppellant and his
        confederate burglarized or attempted to burglarize various
        convenience stores and/or gas stations throughout Lehigh and
        Northampton Counties. ... The modus operandi for this burglary
        spree was the use of a rock or brick to break windows in order to
        gain entry into these businesses. Once inside, primarily cartons
        of Newport and/or Marlboro cigarettes were stolen. The spree
        ended on June 11, 2012, when they attempted to enter a store
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1
    18 Pa.C.S.A. §§ 3502(a), 901 and 903(a).
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      named the Binny Mart by smashing a front window. A passerby
      observed two males wearing hooded sweatshirts running from
      the store and called 9-1-1. The vehicle that the suspects used to
      depart the scene was stopped a short time later, and
      [A]ppellant’s involvement in all of these burglaries was
      uncovered.


Trial Court Opinion, 10/23/14, at 1-2.

      Appellant was arrested and charged with the aforementioned offenses,

and on May 14, 2013, he entered an open plea of nolo contendere.

Following a hearing on October 28, 2013, the trial court sentenced Appellant

to an aggregate term of imprisonment of fourteen to twenty-eight years,

with eligibility for the Recidivism Risk Reduction Incentive Program (“RRRI”).

Appellant filed a post-sentence motion on November 5, 2013, amended on

November 7, 2013, which the trial court denied.

      On March 25, 2014, Appellant filed a pro se petition for relief pursuant

to the Post Conviction Relief Act (“PCRA”) 42 Pa.C.S.A. §§ 9541-46. Counsel

was appointed and on July 3, 2014, filed an amended PCRA petition on

Appellant’s behalf seeking, inter alia, the reinstatement of Appellant’s direct

appeal rights nunc pro tunc. On September 23, 2014, the trial court granted

Appellant’s PCRA petition in part, and granting him leave to file a notice of

appeal nunc pro tunc.    This appeal followed.    Both Appellant and the trial

court have complied with Pa.R.A.P. 1925.

      Appellant presents a single issue for our review:

      WERE THE SENTENCES IMPOSED EXCESSIVE BECAUSE THE
      COMMONWEALTH HAD ALREADY OFFERED A MINIMUM
      SENTENCE OF SEVEN YEARS WHICH IT FELT WAS SUITABLE.


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Appellant’s Brief at 4.

      Although Appellant frames his argument as a challenge to the trial

court’s sentencing discretion, the basis of Appellant’s argument is a claim of

trial counsel ineffectiveness.   Specifically, Appellant asserts that prior to

trial, the Commonwealth informed his trial counsel that it would agree to a

negotiated plea agreement to cap the minimum sentence at no more than

seven years.     Appellant’s Brief at 9-11.     Appellant claims that his trial

counsel did not tell him about the Commonwealth’s offer until it had expired,

thus precluding Appellant from accepting the offer, contemporaneous with

counsel rendering ineffective representation. Id. Appellant maintains that

he should have received the benefit of the Commonwealth’s offer to cap the

minimum sentence at seven years, that he was deprived of the benefit of a

seven year minimum sentence because his trial counsel did not inform him

of the offer, and that in light of the foregoing, it was an abuse of discretion

for the trial court to sentence him to fourteen to twenty-eight years of

imprisonment. Id.

      Although Appellant raised the underlying ineffectiveness claim in a

PCRA petition and developed it at the September 22, 2014 PRCA hearing, we

decline to review it in this direct appeal. Specifically, in his PCRA petition, in

addition to seeking reinstatement of his direct appeal rights, Appellant also

raised allegations that trial counsel was ineffective for failing to inform him

of the Commonwealth’s seven-year plea deal. See Amended PCRA Petition,


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6/3/14.     At the PCRA hearing, the trial court heard evidence regarding

whether trial counsel was ineffective for failing to preserve Appellant’s direct

appeal rights, and also whether trial counsel failed to inform Appellant of the

Commonwealth’s seven-year plea offer.2 However, at the conclusion of the

hearing, the trial court did not make any findings as to whether trial counsel

was ineffective with regard to communicating the Commonwealth’s plea

offer to Appellant.        Instead, the trial court ruled solely on whether

Appellant’s direct appeal rights should have been reinstated.

       Although the issue of trial counsel’s ineffectiveness was developed at

the PCRA hearing, we decline to address it here on direct appeal.           Our

Supreme Court in Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa.

2013), has reaffirmed the general rule that “claims of ineffective assistance

of counsel are to be deferred to PCRA review; trial courts should not

entertain claims of ineffectiveness upon post-verdict motions; and such

claims should not be reviewed upon direct appeal.”            In Holmes, the

Supreme Court “specifically disapproved of expansions of the exception [of]

general rule recognized in Commonwealth v. Bomar, 826 A.2d 831 (Pa.

2003),” which held that if a claim of ineffectiveness of trial counsel had been

fully developed at a hearing devoted to the question of ineffectiveness, such

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2
  Appellant’s trial counsel was called as a witness and testified extensively
that he had informed Appellant of the Commonwealth’s plea offer. N.T.,
9/22/14, at 11-60.


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claim could be reviewed on direct appeal.     Commonwealth v. Burno, 94

A.3d 956, 970 (Pa. 2014) citing Holmes, supra.

      The High Court recognized only two exceptions to the general rule

requiring deferral of ineffectiveness claims to PCRA review, both of which fall

within the discretion of the trial judge. In this regard, the Supreme Court

explained:

            First, we appreciate that there may be extraordinary
      circumstances where a discrete claim (or claims) of trial counsel
      ineffectiveness is apparent from the record and meritorious to
      the extent that immediate consideration best serves the
      interests of justice; and we hold that trial courts retain their
      discretion to entertain such claims.

            Second, with respect to other cases and claims, including
      cases such as Bomar ..., where the defendant seeks to litigate
      multiple or prolix claims of counsel ineffectiveness, including
      non-record-based claims, on post-verdict motions and direct
      appeal, we repose discretion in the trial courts to entertain such
      claims, but only if (1) there is good cause shown,1 and (2) the
      unitary review so indulged is preceded by the defendant's
      knowing and express waiver of his entitlement to seek PCRA
      review from his conviction and sentence, including an express
      recognition that the waiver subjects further collateral review to
      the time and serial petition restrictions of the PCRA.2 In other
      words, we adopt a paradigm whereby unitary review may be
      available in such cases only to the extent that it advances (and
      exhausts) PCRA review in time; unlike the so-called Bomar
      exception, unitary review would not be made available as an
      accelerated, extra round of collateral attack as of right. This
      exception follows from the suggestions of prior Court majorities
      respecting review of prolix claims, if accompanied by a waiver of
      PCRA review.
             1
                  [I]n short sentence cases the trial court's
                  assessment of good cause should pay
                  particular attention to the length of the
                  sentence imposed and the effect of the length
                  of the sentence will have on the defendant’s

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                    realistic prospect to be able to avail himself of
                    collateral review under the PCRA.
              2
                    Unitary review describes the defendant's ability
                    to pursue both preserved direct review claims
                    and     collateral     claims of trial  counsel
                    ineffectiveness on post-sentence motions and
                    direct appeal, and could aptly describe both
                    exceptions we recognize today. However, for
                    purposes of this appeal, we intend the term
                    only to describe the second exception, i.e.,
                    that hybrid review which would encompass
                    full-blown     litigation of collateral  claims
                    (including non-record-based claims).

Holmes, 79 A.3d at 563–64 (citations omitted) (footnotes in original).

        Here, although Appellant’s ineffectiveness claim was developed at the

PCRA hearing, it does not fall into either of the Holmes exceptions which

would permit this Court to address it on direct appeal. Appellant does not

argue — nor do we find — that his ineffectiveness claim is of such

extraordinary magnitude warranting immediate consideration as to fall

within the first exception. The second exception likewise does not apply, as

Appellant made no express waiver of future PCRA review. Accordingly, we

deny relief without prejudice        for   Appellant   to   raise   any   cognizable

ineffectiveness claims in a timely PCRA petition. See 42 Pa.C.S. §§ 9543,

9545.

        To the extent Appellant claims that the trial court abused its discretion

when it imposed a sentence in excess of the seven-year plea deal offered by

the Commonwealth, before we reach the merits of such a discretionary

claim, we must engage in a four part analysis to determine: (1) whether the

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appeal is timely; (2) whether Appellant preserved his issue; (3) whether

Appellant's brief includes a concise statement of the reasons relied upon for

allowance of appeal with respect to the discretionary aspects of sentence;

and (4) whether the concise statement raises a substantial question that the

sentence is appropriate under the sentencing code. If the appeal satisfies

each of these four requirements, we will then proceed to decide the

substantive merits of the case. Commonwealth v. Austin, 66 A.3d 798,

808 (Pa. Super. 2013) (citations omitted).3

       Appellant has adequately preserved his claim in his post-sentence

motion and filed a timely notice of appeal.               Appellant has additionally

included in his brief a concise statement pursuant to Pa.R.A.P. 2119(f). See

Appellant’s Brief at 9.          Therefore, we proceed to determine whether

Appellant has presented a substantial question for our review.

       “A substantial question exi[s]ts only when the appellant advances a

colorable argument that the sentencing judge’s actions were either:                (1)

inconsistent with a specific provision of the Sentencing Code; or (2) contrary

to   the   fundamental      norms     which    underlie   the   sentencing   process.”

Commonwealth v. Clarke, 70 A.3d 1281, 1286-1287 (Pa. Super. 2013)

(citation omitted). Here, Appellant claims that his sentence of fourteen to
____________________________________________


3
  See Commonwealth v. Dalberto, 648 A.2d 16 (Pa. Super. 1994)
(holding that a defendant who enters an open plea which does not involve
an agreement as to sentence to be imposed, can raise a discretionary
challenge to the trial court’s sentence).


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twenty-eight years was excessive because it exceeded the Commonwealth’s

plea offer to cap the minimum sentence at seven years. We note, however,

that Appellant entered into an open plea by which there was no agreement

to restrict the Commonwealth’s right to seek the maximum sentences

applicable to the charges. See Dalberto, 648 A.2d at 20 (citations omitted)

(“In an open plea agreement, there is an agreement as to the charges to be

brought, but no agreement at all to restrict the prosecution's right to seek

the maximum sentences applicable to those charges.”); Commonwealth v.

Parsons, 969 A.2d 1259, 1267 (Pa. Super. 2009).       At the time Appellant

entered his nolo contendere plea, the trial court expressly informed

Appellant:

     [T]here’s always a minimum and maximum sentence imposed.
     The minimum is when you’re eligible for parole, the maximum is
     when you are no longer on parole supervision. ... Under the
     terms of this plea, your minimum sentence could not be
     more than seventy-five years in jail, your maximum
     sentence could not be more than a hundred and fifty years
     in jail.

N.T., 5/14/13, at 9-10 (emphasis added).

     Thereafter, at the sentencing hearing, the trial court reiterated that

Appellant faced a minimum sentence of up to seventy-five years and a

maximum of up to one hundred and fifty years.       N.T., 10/28/13, at 7-8.

Thus, Appellant was well aware that the trial court had the discretion to

sentence him to a minimum sentence of up to seventy-five years.




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         Appellant nevertheless claims that the trial court abused its sentencing

discretion by failing to take into consideration the fact that he could have

potentially     entered      into   a     negotiated   plea         agreement       with      the

Commonwealth that would cap the minimum sentence at seven years. This

claim does not present a substantial question for our review.                            Because

Appellant entered into an open plea, his sentence was left to the discretion

of the trial court.    See Dalberto, 648 A.2d at 20.                 The fact that the trial

court,     in   fashioning    its   sentence,     declined     to    impose     a        sentence

commensurate        with     a   failed   negotiated    plea        agreement       is    neither

inconsistent with a specific provision of the Sentencing Code nor contrary to

the fundamental norms which underlie the sentencing process.

         The record reflects that at the sentencing hearing, Appellant’s counsel

stated that Appellant “turned down [a Commonwealth offer of] five to ten

[and] [there’s] an indication that he turned down a seven year offer, and he

ended up with an open plea.”              N.T., 11/28/13, at 13-14.           Based on this

information, the trial court reasoned that Appellant had rejected the

Commonwealth’s offers for a negotiated plea in favor of an open plea, and

that Appellant understood that there was no agreement as to his sentence.

As the trial court explained:

                [Appellant’s] claim of excessiveness provides no basis for
         relief because the sentencing court is not bound by plea
         agreements which are rejected.

                                            ***


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            [A]ppellant received standard range sentences for each of
     the fifteen (15) counts. In fact, the sentences imposed were at
     the bottom end of the standard range of the Sentencing
     Guidelines. All of the offenses were graded as Felonies of the
     second degree, and carried a statutory maximum of ten (10)
     years. If the statutory maximum was imposed for each offense,
     and ordered to run consecutively, [A]ppellant faced a potential
     sentence of not less than seventy-five (75) years nor more than
     one hundred and fifty (150) years in a state correctional
     institution.

           [A]ppellant, a compulsive burglar, received consecutive
     standard range sentences for fourteen (14) distinct burglaries or
     attempted burglaries. However, those sentences were far less
     than what was permitted under the parameters of [A]ppellant’s
     pleas. The sentence of not less than fourteen (14) years or
     more than twenty-eight (28) years, while severe, fails to raise a
     substantial question.

           Furthermore, the decision to impose the sentences for
     each of the burglaries consecutively to each other does not
     present a substantial question. It has frequently been explained
     that the imposition of consecutive rather than concurrent
     sentences lies within the sound discretion of the sentencing
     court. Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa.
     Super. 2008). A challenge to the imposition of consecutive
     rather than concurrent sentences generally does not present a
     substantial question regarding the discretionary aspects of
     sentence. Id. ...

           The one limited exception to this conclusion is when the
     imposition of a consecutive sentence “raises the aggregate
     sentence to, what appears upon its face to be, an excessive level
     in light of the criminal conduct at issue in the case.”
     Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa.
     Super. 2010)....

            [A]ppellant’s lifework is committing burglaries. A review of
     his prior criminal history discloses that, including the fourteen
     (14) burglaries in this case, [A]ppellant was convicted of
     committing six (6) burglaries in 2006 and one (1) in 2000. In
     light of that history alone, the aggregate sentence in this case is
     not excessive and no substantial question exists.


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Trial Court Opinion, 10/23/14, at 4, 8-9 (footnotes omitted). We agree with

the trial court’s assessment.   For the foregoing reasons, we affirm the

judgment of sentence.

     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/14/2015




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