J-S05008-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    NATHAN GONZALES                            :
                                               :
                      Appellant                :   No. 430 WDA 2017

        Appeal from the Judgment of Sentence Entered February 7, 2017
      In the Court of Common Pleas of Venango County Criminal Division at
                        No(s): CP-61-CR-0000430-2016


BEFORE:      OLSON, J., OTT, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.:                             FILED FEBRUARY 26, 2018

        Appellant, Nathan Gonzales, appeals from the judgment of sentence

entered on February 7, 2017, as made final by the denial of Appellant’s post-

sentence motion on February 16, 2017. We affirm.

        On January 23, 2017, Appellant pleaded guilty to aggravated assault

at docket number CP-61-CR-0000430-2016 (hereinafter “Docket 430-

2016”).1    In exchange for Appellant’s plea, the Commonwealth agreed to:

1) nolle pros all remaining counts at the docket number, and 2) recommend

that Appellant’s sentence run concurrent with the sentence Appellant would




____________________________________________


1   18 Pa.C.S.A. § 2702(a)(4).



____________________________________
* Retired Senior Judge assigned to the Superior Court.
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receive at docket number CP-61-CR-0000338-2016 (hereinafter “Docket

338-2016”).2 N.T. Guilty Plea Hearing, 1/23/17, at 5-6.

       During the guilty plea hearing, Appellant admitted that the factual

basis for his aggravated assault conviction was as follows: “on [March 25,

2016, Appellant] did strike [the Victim] with some form of an implement,

namely what was alleged to be brass knuckles, and as a result, [the Victim]

suffered a [non-displaced] fracture of his jaw.” Id. at 13. The trial court

accepted Appellant’s guilty plea and scheduled sentencing for February 7,

2017. Id. at 21.

       Appellant appeared for sentencing on the scheduled date. As the trial

court explained:

         Given the nature of [Appellant’s] offenses, a pre-sentence
         investigation (“PSI”) [report] was prepared [after
         Appellant’s guilty plea hearing]. Using this PSI, the [trial]
         court calculated [Appellant’s] prior record score (“PRS”) to
         be of the repeat felony 1 and felony 2 (“RFEL”) category.
         [Prior to receiving the PSI], [] counsel for the
         Commonwealth and both of [Appellant’s] defense attorneys
         [incorrectly believed] that [Appellant’s] PRS would be a five.
         The [trial] court, again on the record, walked through the
         convictions which would lead to an RFEL classification, with
         which all attorneys agreed.

         Given the confusion surrounding the PRS, and that
         [Appellant] had apparently relie[d] upon the PRS in deciding
         whether or not to accept the plea offer, [Appellant’s
         attorney] understandably expressed some trepidation as to
____________________________________________


2 At Docket 338-2016, Appellant was convicted of criminal use of a
communication facility, in violation of 18 Pa.C.S.A. § 7512(a). See N.T.
Sentencing Hearing, 2/7/17, at 24.



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        her client’s willingness to continue with the sentencing.
        Accordingly, [the trial] court permitted the parties to have
        discussions while the [trial] court proceeded with sentencing
        another individual. The [trial] court, at that point, would
        have permitted [Appellant] to withdraw his guilty plea
        should he have elected to do so, or at least entertained a
        motion to do so pending the Commonwealth’s response.

        However, [Appellant], presented with this opportunity,
        chose to proceed with sentencing.        [The trial] court
        sentenced [Appellant] to three [] to seven [years’]
        incarceration at [Docket 338-2016] and [40] months to [ten
        years’ incarceration] at [Docket 430-2016], [to] run
        concurrently in accordance with the plea agreement, with
        credit allowed for [306] days. The sentences complied with
        the applicable guidelines given the offense gravity scores
        and [Appellant’s] status as RFEL.

Trial Court Opinion, 4/5/17, at 1-2 (internal footnotes and some internal

capitalization omitted).

      On February 15, 2017, Appellant filed a post-sentence motion and,

within the motion, Appellant requested that the trial court reconsider its

sentence “and to sentence him using the standard range for a [five] prior

record score.”    Appellant’s Post-Sentence Motion, 2/15/17, at 2.       As

Appellant claimed:

        [Appellant’s] counsel . . . and the prosecutors on each of his
        criminal cases incorrectly determined [Appellant’s] prior
        record score as a five []; however, at the time of
        sentencing, the [trial] court determined that [Appellant’s]
        prior record score [was] RFEL.

        The offense gravity score of the crime of aggravated assault
        with a deadly weapon [] is an [eight] and [Appellant] was
        under the impression that with a prior record score of a
        [five], his standard range [sentence] was 27 to 33 months;
        however with a prior record score of RFEL, the standard
        range for a crime with an offense gravity score of [eight] is


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       40 to 52 months and that is a [seven] month difference
       between the top of the original anticipated standard range
       to the bottom of the standard range used by the [trial]
       court at sentencing.

       [Appellant’s belief that his prior record score was five was]
       based off of the Pennsylvania RAP sheet provided by the
       Commonwealth in discovery; furthermore, in plea
       negotiations, the prosecutor . . . had determined the prior
       record score to be a [five].

       [However, Appellant had a felony] burglary on his record
       that did not appear on his RAP sheet[, as Appellant was a
       juvenile when he committed the burglary,] . . . and that is
       what brought [Appellant] to the RFEL level. . . .

       Despite the fact that [the] prior record score is not
       specifically in a plea negotiation, [Appellant’s] counsel used
       the standard range for a prior record score of a [five] to
       negotiate with the prosecutor (who agreed at the time that
       it was a [five]) and to help [Appellant] make an informed
       decision regarding whether to accept a plea or to assert his
       constitutional right to have a trial by jury using his valid
       self-defense claim.

       [Appellant] did not make an informed decision when
       determining that he would take a plea because he was not
       given the appropriate information regarding his potential
       sentencing range.

       [Appellant] is asking the court to reconsider his sentence
       and to sentence him using the standard range for a [five]
       prior record score and an offense gravity score of [eight],
       which would be a range of 27 to 33 months of incarceration
       for the minimum sentence; [Appellant] asks for this
       reconsideration based on the fact that he did not have
       accurate information regarding his prior record score when
       making the decision to accept a plea and it should be
       considered not to be a fully informed decision.

       WHEREFORE, [Appellant] . . . respectfully requests [the trial
       court] to reconsider [Appellant’s] sentence.




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Appellant’s Post-Sentence Motion, 2/15/17, at 1-2 (paragraph numbering

and some internal capitalization omitted).

       The trial court denied Appellant’s post-sentence motion on February

16, 2017 and Appellant filed a timely notice of appeal. Appellant raises one

claim on appeal:3

         The plea in this case was not entered knowingly,
         intelligently or voluntarily, when the plea was entered based
         on a negotiated prior record score that was not used during
         the sentencing.

Appellant’s Brief at 2.

       On appeal, Appellant claims that he should be permitted to withdraw

his plea because “he would not have entered his plea had he known that the

prior record score discussed at the time of the plea was incorrect.” Id. at 3.

This claim is waived, as Appellant never requested that the trial court permit

him to withdraw his plea. Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower

court are waived and cannot be raised for the first time on appeal”);
____________________________________________


3 On April 17, 2017, Allison D. Hartle, Esquire (hereinafter “Attorney
Hartle”), of the Venango County Office of the Public Defender, entered her
appearance for Appellant; on July 19, 2017, Attorney Hartle filed an
appellate brief on Appellant’s behalf. However, on August 21, 2017, the
Public Defender’s Office filed a petition to strike Attorney Hartle’s brief. See
Petition to Strike Brief, 8/21/17, at 1-4. We granted the Public Defender’s
petition on August 24, 2017 and, in so doing, struck Attorney Hartle’s brief
and granted Appellant 60 days to file a new brief. Order, 8/24/17, at 1.

On October 13, 2017, Tina M. Fryling, Esquire (hereinafter “Attorney
Fryling”), entered her appearance for Appellant; Attorney Fryling later filed
the appellate brief on behalf of Appellant. See Appellant’s Brief at 1-9.




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Commonwealth v. Tareila, 895 A.2d 1266, 1270 n.3 (“[i]n order to

preserve an issue related to the guilty plea, an appellant must either object

at the sentence colloquy or otherwise raise the issue at the sentencing

hearing or through a post-sentence motion”) (internal quotations, citations,

and corrections omitted); Commonwealth v. May, 402 A.2d 1008, 1009

n.3 (Pa. 1979) (where, in the trial court, appellant sought to withdraw his

guilty plea based upon the specific claim that appellant “did not fully

understand the significance of the sentence to be imposed,” appellant

waived, for appellate review, the claim that he was entitled to withdraw his

guilty plea because he “did not understand the felony murder rule and his

plea was[, therefore,] not [] knowingly entered”); see also Appellant’s Post-

Sentence Motion, 2/15/17, at 1-2 (“[Appellant] is asking the court to

reconsider his sentence and to sentence him using the standard range for

a [five] prior record score and an offense gravity score of [eight], which

would be a range of 27 to 33 months of incarceration for the minimum

sentence”) (emphasis added).

     Further, even if the claim were not waived, the claim would fail on its

merits.    We have summarized the applicable standard of review and

substantive rules regarding an order denying a post-sentence motion to

withdraw a guilty plea:

          A defendant who attempts to withdraw a guilty plea after
          sentencing must demonstrate prejudice on the order of
          manifest injustice before withdrawal is justified. A showing
          of manifest injustice may be established if the plea was
          entered into involuntarily, unknowingly, or unintelligently.

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                                    ...

       Pennsylvania has constructed its guilty plea procedures in a
       way designed to guarantee assurance that guilty pleas are
       voluntarily and understandingly tendered. The entry of a
       guilty plea is a protracted and comprehensive proceeding
       wherein the [trial] court is obliged to make a specific
       determination after extensive colloquy on the record that a
       plea is voluntarily and understandingly tendered.

       Rule 590 of the Pennsylvania Rules of Criminal Procedure
       requires that a guilty plea be offered in open court, and
       provides a procedure to determine whether the plea is
       voluntarily, knowingly, and intelligently entered. As noted
       in the Comment to Rule 590, at a minimum the trial court
       should ask questions to elicit the following information:

          (1) Does the defendant understand the nature of the
          charges to which he or she is pleading guilty or nolo
          contendere?

          (2) Is there a factual basis for the plea?

          (3) Does the defendant understand that he or she has
          the right to trial by jury?

          (4) Does the defendant understand that he or she is
          presumed innocent until found guilty?

          (5) Is the defendant aware of the permissible range of
          sentences and/or fines for the offenses charged?

          (6) Is the defendant aware that the judge is not bound
          by the terms of any plea agreement tendered unless the
          judge accepts such agreement?

       Pa.R.Crim.P. 590, Comment.

       This Court has further summarized:

          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

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           consequences. This determination is to be made by
           examining the totality of the circumstances surrounding
           the entry of the plea. Thus, even though there is an
           omission or defect in the guilty plea colloquy, 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.

        Finally, we apply the following when addressing an appellate
        challenge to the validity of a guilty plea:

           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.

           The longstanding rule of Pennsylvania law is that a
           defendant may not challenge his guilty plea by asserting
           that he lied while under oath, even if he avers that
           counsel induced the lies. A person who elects to plead
           guilty is bound by the statements he makes in open
           court while under oath and may not later assert grounds
           for withdrawing the plea which contradict the statements
           he made at his plea colloquy.

           A defendant who elects to plead guilty has a duty to
           answer questions truthfully. We [cannot] permit a
           defendant to postpone the final disposition of his case by
           lying to the court and later alleging that his lies were
           induced by the prompting of counsel.

Commonwealth v. Yeomans, 24 A.3d 1044, 1046-1047 (Pa. Super. 2011)

(internal corrections and footnotes omitted) (some internal citations and

quotations omitted).

     Appellant claims that he is entitled to withdraw his plea because,

during the plea negotiations, he was under the impression that his prior

record score was a five (and not RFEL). However, Appellant’s prior record



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score was not a part of Appellant’s plea deal with the Commonwealth and,

prior to sentencing, the trial court specifically informed Appellant that his

prior record score was RFEL – and not five.        N.T. Guilty Plea Hearing,

1/23/17, at 5-6; N.T. Sentencing Hearing, 2/7/14, at 14. Further, after the

trial court informed Appellant that his prior record score was RFEL – and

that, as a result, the guideline sentencing ranges were greater than what

Appellant had originally believed – the trial court gave Appellant time to

speak with his attorney and decide whether to go forward with sentencing.

N.T. Sentencing Hearing, 2/7/14, at 16-18. Appellant chose to go forward

with sentencing, knowing full well that his prior record score was RFEL (and

not five). Id. at 18. Appellant cannot now complain that he should have

been permitted to withdraw his plea when he never asked to withdraw his

plea and, after being informed of his correct prior record score, he

voluntarily, knowingly, and intelligently chose to proceed with sentencing.

      Thus, even if Appellant’s claim were not waived, the claim fails on its

merits.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/26/2018

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