J-S06012-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TYREEK MCNEIL                              :
                                               :
                       Appellant               :   No. 1586 EDA 2018

                   Appeal from the Order Entered May 3, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0008634-2014


BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                                  FILED JUNE 06, 2019

       Tyreek McNeil appeals pro se from the May 3, 2018 order dismissing his

PCRA petition.1 We affirm.

       The PCRA court summarized the facts underlying Appellant’s conviction

as adduced at the guilty plea hearing:

             On September 26, 2013, the Appellant robbed two men as
       they exited a bakery on the corner of 8th and Watkins Street in
       the City of Philadelphia. The Appellant approached both men on
       a bike, held the two men at gunpoint, and demanded money. The
       Appellant took money and a cell phone from the first victim, and
       then demanded that the second victim hand over his backpack.
       The second victim and the Appellant then struggled over the
       backpack. During the struggle, the Appellant shot the victim,
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1   Appellant maintained that he was appealing from his January 19, 2017
judgment of sentence. If we were to treat it as such, we would quash his
appeal as untimely. However, since Appellant filed the instant appeal within
thirty days of the May 3, 2018 order denying PCRA relief, and stated on the
cover of his brief that he was appealing from the order denying post-conviction
relief, we will treat it as a timely appeal from that order.
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       Josegabino Aparicio-Jeranimo, three times in the torso. Then the
       Appellant fled the area with the backpack, money, and cell phone.
       The victim died as a result of the gunshot wounds.

PCRA Court Opinion, 8/3/18, at unnumbered 2-3 (citations omitted

       Appellant was charged by criminal information with fifteen counts,

including murder. On May 27, 2015, he entered a negotiated guilty plea to

third-degree murder, two counts of first-degree felony robbery, and three

firearms offenses, and the Commonwealth nolle prossed the remaining nine

charges. Sentencing was deferred to permit a presentence investigation. On

January 19, 2017, Appellant was sentenced as negotiated and agreed upon to

an aggregate term of fifteen to thirty years of imprisonment.2

       Appellant did not seek to withdraw his plea or file a direct appeal.

Instead, he filed a timely pro se PCRA petition in which he checked the boxes

alleging ineffective assistance of counsel and imposition of a sentence greater

than the lawful maximum.           He also represented therein that his sentence

exceeded the guidelines since he had a prior record score of one and no prior

violent offenses.

       Counsel was appointed, and he filed a motion to withdraw and a Finley3

no-merit letter.     In his no-merit letter, counsel explained that Appellant

misunderstood the sentencing guidelines and that the sentence imposed was
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2  The negotiated sentence was fifteen to thirty years of imprisonment at Count
1 (third-degree murder); five to ten years of incarceration on each of the
robbery counts, Counts 2 and 9; three to six years at Count 3 (possession of
firearm prohibited-F2). No further penalty was imposed at Counts 4 and 7,
and all sentences were to run concurrently.

3   Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

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a guideline sentence and did not exceed the statutory maximum. Moreover,

counsel pointed out that it was a negotiated sentence and that counsel had

performed ably in handling the negotiations. After conducting an independent

review of the record, counsel concluded that the issues raised in Appellant’s

pro se petition had no arguable merit and that there were no other potentially

meritorious issues to advance on Appellant’s behalf. Counsel represented that

he sent Appellant a copy of the no-merit letter/brief, a copy of his motion to

withdraw, and that he advised Appellant of his right to proceed pro se or to

obtain new counsel.

      The PCRA court issued a Rule 907 notice of its intent to dismiss the

petition on April 3, 2018, and Appellant did not file a response. Accordingly,

the court dismissed the petition on May 3, 2018 and granted counsel’s request

to withdraw.

      Appellant timely filed the within appeal, and both Appellant and the

PCRA court complied with Pa.R.A.P. 1925. Appellant raises one issue for our

review:

      A) Whether the lower court abused it’s [sic] discretion when it
         impermissibly relied on the aggregated [sic] circumstances and
         or factors, and failed to consider mitigating factors and
         imposed an aggregate sentence of 15 to 30 years which was
         manifestly excessive under the circumstances.

Appellant’s brief at 4.

      When reviewing the propriety of an order granting or denying PCRA

relief, we consider the record “in the light most favorable to the prevailing

party at the PCRA level.”   Commonwealth v. Stultz, 114 A.3d 865, 872

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(Pa.Super. 2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20

(Pa.Super. 2014) (en banc)).          We are limited to determining whether the

evidence of record supports the conclusions of the PCRA court and whether

the ruling is free of legal error. Id.

       Appellant alleges that the trial court abused its discretion when it failed

to consider mitigating factors and imposed a manifestly excessive sentence.4

As the PCRA court correctly noted, however, since Appellant received a

negotiated sentence, he is precluded from challenging the discretionary

aspects of his sentence.            PCRA Court Opinion, 8/3/18, at 8 (citing

Commonwealth v. Baney, 860 A.2d 127, 131 (Pa.Super. 2004)); see also

Commonwealth v. Brown, 982 A.2d 1017, 1019 (Pa.Super. 2009) (holding

that “where a defendant pleads guilty pursuant to a plea agreement specifying

particular penalties, the defendant may not seek a discretionary appeal related

to those agreed upon penalties”). This claim fails.

       In his pro se PCRA petition, Appellant alleged that his sentence was

excessive because it was a departure from the sentencing guidelines.

Although he does not argue illegality of sentence on appeal, we may address

it sua sponte in a timely PCRA petition. See Commonwealth v. Ballance,


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4 We note that the trial court deferred sentencing to allow time for a pre-
sentence investigation report. As we held in Commonwealth v. Ventura,
975 A.2d 1128, 1135 (Pa.Super. 2009), “where the sentencing judge had the
benefit of a presentence investigation report, it will be presumed that he or
she was aware of the relevant information regarding the defendant’s character
and weighed those considerations along with mitigating statutory factors.”

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203 A.3d 1027 (Pa.Super. 2019) (recognizing that legality of sentence is

always subject to review within the PCRA providing the court has jurisdiction,

which is tied to the filing of a timely petition).

       We find that Appellant did not receive an illegal sentence. In the classic

sense, an illegal sentence is one that exceeds the statutory maximum.

Although the agreed-upon sentence for third-degree murder was in the

aggravated range, it did not exceed the statutory maximum. The individual

sentences imposed on the two robbery counts and the firearms violation also

did not exceed the statutory maximum, and, moreover, the negotiated guilty

plea provided that those sentences would run concurrent to the sentence

imposed on the count of third-degree murder. As the PCRA court noted at the

guilty plea hearing, and again in its opinion, Appellant faced a maximum

aggregate penalty of fifty-one to 102 years of imprisonment.        PCRA Court

Opinion, 8/3/18, at 7.         Pursuant to the negotiated guilty plea, he was

sentenced in the aggregate to fifteen to thirty years imprisonment, well below

the statutory maximum.5

       Finally, Appellant alleges for the first time on appeal that counsel

induced him to enter an involuntary guilty plea by providing incorrect advice

about the potential sentence he could receive if he went to trial and was found



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5  Additionally, as the Commonwealth correctly points out, Appellant’s sentence
was not based on an unconstitutional sentencing statute, and thus, it was not
illegal on that basis.

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guilty. In addition, he avers that counsel failed to file a motion to withdraw

the plea. These ineffectiveness claims are waived as Appellant did not present

them in his PCRA petition, nor seek leave to amend his petition to assert them.

See Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa. 2004) (holding

that a claim not raised in a PCRA petition cannot be raised for the first time

on appeal). No relief is due.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/6/19




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