J-S01023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    LUIS NIEVES                                :
                                               :   No. 774 MDA 2017
                       Appellant

              Appeal from the Judgment of Sentence April 3, 2017
    In the Court of Common Pleas of Lackawanna County Criminal Division at
                        No(s): CP-35-CR-0002442-2016


BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                            FILED FEBRUARY 06, 2018

        Luis Nieves (“Appellant”) appeals from the judgment of sentence

imposed after he pled guilty to one count of simple assault.1 After careful

review, we affirm.

        Appellant’s guilty plea arose from an incident that occurred on October

4, 2016 when Appellant, while incarcerated for an unrelated offense, sprayed

bodily fluids on a corrections officer at the Lackawanna County Prison.

Appellant was charged with one count of simple assault and entered a guilty

plea on April 3, 2017.           Appellant waived his right to a pre-sentence

investigation and that same day the trial court sentenced him to a term of one

to two years of imprisonment to be served consecutive to the sentence


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1   18 Pa.C.S.A. § 2701(a)(1).
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Appellant was already serving. In addition, the trial court ordered Appellant

to undergo a mental health evaluation.

      Appellant filed a motion for reconsideration on April 10, 2017, which the

trial court denied by order dated April 11, 2017. Appellant filed a timely notice

of appeal on May 5, 2017, followed by a Pa.R.A.P. 1925(b) concise statement

of errors complained of on appeal on July 6, 2017. On July 24, 2017, the trial

court issued an opinion pursuant to Pa.R.A.P. 1925(a).

      Appellant raises the following issues on appeal:

      1. Did the Trial Court err and/or abuse its discretion in finding
         [Appellant’s] guilty plea was knowingly, intelligently and
         voluntarily made and in accepting [Appellant’s] guilty plea to
         the charge of Simple Assault, in violation of 18 Pa.C.S.A.
         §2701(a)(1), where the totality of the circumstances show the
         plea was of an unknowing character?

      2. Did the Trial Court err and/or abuse its discretion by failing to
         order a psychiatric evaluation of [Appellant] and consider his
         rehabilitative needs and mitigating circumstances, and by
         relying upon impermissible factors, including the seriousness
         of the crime and unverified reports of uncharged misconduct,
         to justify imposing the maximum sentence allowable by law,
         to be served consecutive to the sentence [Appellant] is
         currently serving, without sufficiently stating on the record the
         reasons for the sentence imposed?

Appellant’s Brief at 4.

      In Appellant’s first issue, he challenges the validity of his guilty plea,

asserting that the trial court’s colloquy was inadequate and “so fraught with

deficiencies that his plea could not have been intelligent and understanding.”

Appellant’s Brief at 14.




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      “Initially, we note that when a defendant enters a guilty plea, he or she

waives all defects and defenses except those concerning the validity of the

plea, the jurisdiction of the trial court, and the legality of the sentence

imposed.” Commonwealth v. Stradley, 50 A.3d 769, 771 (Pa. Super.

2012).   It is well settled that “[a] defendant wishing to challenge the

voluntariness of a guilty plea on direct appeal must either object during the

plea colloquy or file a motion to withdraw the plea within ten days of

sentencing. Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). Failure to employ either

measure results in waiver.” Commonwealth v. Lincoln, 72 A.3d 606, 609–

10 (Pa. Super. 2013).

      Here, Appellant did not move to withdraw his guilty plea or preserve his

claim in his motion for reconsideration or in a post-sentence motion prior to

filing his direct appeal. Appellant has therefore waived his challenge to the

validity of the plea by failing to raise it before the trial court. See Pa.R.A.P.

302 (issues not presented to the trial court cannot be raised for

the first time on appeal); Commonwealth v. D'Collanfield, 805 A.2d 1244,

1246 (Pa. Super. 2002) (issues related to deficiency of guilty plea waived by

failing to object at the time of the sentencing hearing or through a post-

sentence motion).

      Even if Appellant had properly preserved this issue on appeal, it lacks

merit. “[A] defendant who attempts to withdraw a guilty plea after sentencing

must demonstrate prejudice on the order of manifest injustice before

withdrawal is justified.” Commonwealth v. Pantalion, 957 A.2d 1267, 1271

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(Pa. Super. 2008) (citation omitted). A showing of manifest injustice may be

established if the plea was entered into involuntarily, unknowingly, or

unintelligently.   Id.   As this Court has explained, “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 court is obliged to make a specific determination after extensive colloquy

on the record that a plea is voluntarily and understandingly tendered.”

Commonwealth v. Fluharty, 632 A.2d 312, 314 (Pa. Super. 1993) (citation

omitted).

      Pennsylvania Rule of Criminal Procedure 590 addresses plea procedures.

The comment to Rule 590 provides that when determining whether a plea is

voluntarily, knowingly, and intelligently entered, “[a]t a minimum the judge

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.




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      In addition, “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.”      Commonwealth v.

Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011), citing Fluharty, 632 A.2d

at 314–15. “[O]ur law presumes that a defendant who enters a guilty plea

was aware of what he was doing.”            Id.   “[W]here the record clearly

demonstrates that a guilty plea colloquy was conducted, during which it

became evident that the defendant understood the nature of the charges

against him, the voluntariness of the plea is established.” Commonwealth

v. Rush, 909 A.2d 805, 808 (Pa. Super. 2006). “[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.”

Yeomans, 24 A.3d at 1046–47, citing Commonwealth v. Pollard, 832 A.2d

517, 523–24 (citations omitted).

      The record belies Appellant’s contention that his plea was not validly

entered.       Appellant    signed    an     extensive written guilty plea form,

supplemented by an on-the-record oral colloquy in which the trial court

explained and asked Appellant whether he understood the charge against him,

the factual basis for the plea, and his right to a jury trial. Appellant affirmed

both in writing and verbally that he entered his plea knowingly, intelligently,

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and voluntarily. N.T., 3/3/17, at 2-7; Guilty Plea Colloquy, 3/3/17, at 1-4.

Appellant’s challenge to the validity of his plea is thus without merit.

      In his second issue, Appellant challenges the discretionary aspects of

his sentence. We have explained:

            Challenges to the discretionary aspects of sentencing do not
            entitle an appellant to an appeal as of right.
            Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa. Super.
            2000). Prior to reaching the merits of a discretionary aspect
            of sentencing issue:

            We conduct a four-part analysis to determine: (1) whether
            appellant has filed a timely notice of appeal, see Pa.R.A.P.
            902 and 903; (2) whether the issue was properly preserved
            at sentencing or in a motion to reconsider and modify
            sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s
            brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
            there is a substantial question that the sentence appealed
            from is not appropriate under the Sentencing Code, 42
            Pa.C.S.A. § 9781(b).

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013), appeal

denied, 76 A.3d 538 (Pa. 2013) (quoting Commonwealth v. Evans, 901

A.2d 528, 533 (Pa. Super. 2006), appeal denied, 909 A.2d 303 (Pa. 2006)).

Generally, objections to the discretionary aspects of a sentence are waived if

they are not raised at the sentencing hearing or in a motion to modify the

sentence imposed at that hearing. Commonwealth v. Mann, 820 A.2d 788,

794 (Pa. Super. 2003), appeal denied, 831 A.2d 599 (Pa. 2003).

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

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

respect to preservation of his claims in a motion to modify, the record reflects

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that in his motion for reconsideration, Appellant challenged the trial court’s

decision to impose his sentences concurrently, and additionally asked that the

trial court permit him to undergo a mental health evaluation at a state

correctional institution.   On appeal, however, Appellant argues that at

sentencing the trial court abused its discretion by relying on documents that

were not part of the record, that the trial court overlooked mitigating factors,

and that the trial court should have ordered a psychiatric evaluation prior to

imposition of its sentence. However, because Appellant did not preserve these

challenges to the discretionary aspects of his sentence by raising them in his

motion for reconsideration or at sentencing, they are waived.

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

by failing to impose a sentence to be served concurrently with the sentence

he was already serving, this claim has been properly preserved, and we

proceed to address whether it raises a substantial question for our review.

      “Generally … in order to establish a substantial question, the appellant

must show actions by the sentencing court inconsistent with the Sentencing

Code or contrary to the fundamental norms underlying the sentencing

process.” Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005).

“Long standing precedent of this Court recognizes that 42 Pa.C.S.A. Section

9721 affords the sentencing court discretion to impose its sentence

concurrently or consecutively to other sentences being imposed at the same

time or to sentences already imposed. Any challenge to the exercise of this


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discretion ordinarily does not raise a substantial question.” Id. “[T]he key to

resolving the preliminary substantial question inquiry is whether the decision

to sentence consecutively 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).

       We    conclude     that    Appellant's    consecutive   sentence   was   not

unreasonably excessive in light of Appellant’s criminal conduct of assaulting a

corrections officer, and perpetuating his criminal behavior while incarcerated

for another crime. The consecutive sentence was not excessively harsh, and

the aggregate sentence imposed was not inappropriate or contrary to a

fundamental norm underlying the Sentencing Code.2 We therefore find that

Appellant has not raised a substantial question for our review.

       Appellant’s remaining contentions, even if not waived, do not entitle him

to relief.   Appellant argues that the trial court abused its discretion by

imposing a statutory maximum sentence of two years of imprisonment.

Appellant’s Brief at 19-25.        He contends that even though the trial court

sentenced him within the standard range of the sentencing guidelines, the



____________________________________________


2 The record reflects that Appellant was serving a sentence of eleven to
twenty-three and a half months of imprisonment for criminal trespass, which,
together with the consecutive sentence of one to two years for simple assault,
yielded an aggregate sentence of one year and eleven months to three years
and eleven months.

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court relied on erroneous considerations, including prison reports detailing

Appellant’s misconduct while incarcerated, which were unverified and outside

the record.   In addition, Appellant argues that the trial court overlooked

mitigating factors such as his mental and emotional condition, family

circumstances, difficult childhood, and his acceptance of responsibility,

resulting in a manifestly excessive and unreasonable sentence.              He

additionally claims that the trial court should have requested a psychiatric

evaluation prior to sentencing. Appellant’s Brief at 19-25.

      A trial court's alleged reliance on matters outside the record raises a

substantial question for our review. Commonwealth v. Rhodes, 990 A.2d

732, 745 (Pa. Super. 2009) (allegation that sentencing judge relied on matters

outside the record such as police reports raises a substantial question for

appellate review). This Court has found that grounds for vacating a sentence

exist where the sentencing court relied on information that was not part of the

record, such information was not disclosed to a defendant so that he might

have an opportunity to examine it and dispute its accuracy, and the trial court

made factual inferences drawn directly from that information to impose a

sentence. See Rhodes 990 A.2d at 746-746; Commonwealth v. Schwartz,

418 A.2d 637, 638, 640–41 (Pa. Super. 1980).         However, this Court has

rejected such challenges as meritless where the challenged information has

been disclosed to the defendant who, when given the opportunity, did not




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dispute its accuracy. Commonwealth v. Broadie, 489 A.2d 218, 221 (Pa.

Super. 1985).

     In the instant case, the record indicates that prior to sentencing, the

Commonwealth provided the prison reports to Appellant and afforded

Appellant the opportunity to examine them and challenge their accuracy. At

the sentencing hearing, the following exchange occurred:

           Trial Court:                     [L]et’s proceed to sentencing
                                            now that we’ve executed a
                                            waiver of his right to a PSI. Is
                                            there anything from the
                                            Commonwealth before we
                                            proceed to the defense side?

           Assistant District Attorney:     I     believe     that    the
                                            Commonwealth would like
                                            you to look at his conduct as
                                            a prisoner and the problems
                                            that he gave the jail. He has
                                            not been a prize prisoner.
                                            There have been write-ups in
                                            the past.

           Trial Court:                     Okay.     I have had the
                                            opportunity to review the
                                            submission       by      the
                                            Commonwealth, which is a
                                            series [of] incident reports.
                                            And I believe [Appellant’s
                                            counsel], you have a copy as
                                            well?

           Appellant’s Counsel:             I do, Your Honor.

           Trial Court:                     All right then. Anything from
                                            [Appellant’s counsel] that you
                                            would like to say on behalf of
                                            your client before I impose
                                            sentence?

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            Appellant’s Counsel:             Your Honor, [Appellant]. . .
                                             does suffer from mental
                                             illness. He’s diagnosed with
                                             schizophrenic bipolar. He is
                                             taking medication. However,
                                             I think that it has been some
                                             time     since    he’s   been
                                             evaluated by a doctor. So one
                                             thing we would ask the Court
                                             to do is perhaps, as part of
                                             crafting any sentence, is
                                             maybe order that he be
                                             evaluated by a psychiatrist.

            Trial Court:                     Okay.

N.T., 4/3/17, at 9-10.

      It is apparent from the record that the Commonwealth disclosed the

challenged records to Appellant who, although provided the opportunity to do

so, did not and does not now challenge their accuracy. See Broadie, 489

A.2d at 221 (finding no merit to Appellant’s claim that the sentencing court

abused its discretion by relying on uncorroborated statements by the

prosecutor that were made in open court and the appellant did not dispute

their accuracy when given the opportunity to do so). As this Court has stated,

“a sentencing judge may appropriately conduct an inquiry broad in scope,

largely unlimited either as to the kind of information he may consider, or the

source from which it may come.” Rhodes, 990 A.2d at 746 (citations and

internal quotations omitted).   Appellant’s claim that the sentencing court

improperly relied on the prison reports is without merit.




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      Appellant’s remaining contentions that the trial court failed to consider

mitigating factors and failed to request a psychiatric evaluation, resulting in a

manifestly excessive and unreasonable sentence, are also meritless.           In

general, where a sentence falls within the guidelines (as Appellant’s does), an

argument that the trial court failed to consider or did not accord appropriate

weight to various sentencing factors does not necessarily raise a substantial

question.   Commonwealth v. Luketic, 162 A.3d 1149, 1162 n. 14 (Pa.

Super. 2017). Even if Appellant had raised a substantial question, a review

of the sentencing transcript reveals that the trial court adequately stated on

the record the reasons for Appellant’s sentence. Sentencing is a matter vested

within the discretion of the trial court and will not be disturbed absent a

manifest abuse of discretion. Commonwealth v. Crump, 995 A.2d 1280,

1282 (Pa. Super. 2010). This Court has stated:

             Section 9781(c) specifically defines three instances in which
      the appellate courts should vacate a sentence and remand: (1)
      the sentencing court applied the guidelines erroneously; (2) the
      sentence falls within the guidelines, but is “clearly unreasonable”
      based on the circumstances of the case; and (3) the sentence falls
      outside of the guidelines and is “unreasonable.” 42 P.A.C.S. §
      9781(c). Under 42 Pa.C.S. § 9781(d), the appellate courts must
      review the record and consider the nature and circumstances of
      the offense, the sentencing court’s observations of the defendant,
      the findings that formed the basis of the sentence, and the
      sentencing guidelines. The . . . weighing of factors under 42
      Pa.C.S. § 9721(b) [is] exclusively for the sentencing court, and an
      appellate court could not substitute its own weighing of those
      factors. The primary consideration, therefore, is whether the
      court imposed an individualized sentence, and whether the
      sentence was nonetheless unreasonable for sentences falling
      outside the guidelines, or clearly unreasonable for sentences
      falling within the guidelines, pursuant to 42 Pa.C.S. § 9781(c).

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Com. v. Bricker, 41 A.3d 872, 875–76 (Pa. Super. 2012).

       Section 9721(b) provides in pertinent part:

       [T]he court shall follow the general principle that the sentence
       imposed should call for confinement that is consistent with the
       protection of the public, the gravity of the offense as it relates to
       the impact on the life of the victim and on the community, and
       the rehabilitative needs of the defendant.

42 Pa.C.S.A. § 9721(b).

       At the sentencing hearing, the trial court heard statements from

Appellant and his counsel about Appellant’s prior record, his mental health,

his family background and difficult childhood, and the fact that Appellant had

a dependent child of his own.             N.T., 4/3/17, at 10-14.   In fashioning

Appellant’s sentence, the trial court, which reviewed the sentencing

guidelines, took into consideration Appellant’s criminal history, background,

and family circumstances. Id. The trial court stated on the record that the

sentence “reflect[ed] and recognize[ed] the nature and gravity of the offense”

and concluded that the sentence was “appropriate given the circumstances of

[Appellant’s] situation. Id. at 14. The trial court, which had the opportunity

to observe Appellant and was apprised of Appellant’s mental health conditions

opted, within its discretion, not to order a psychiatric evaluation.3 We note



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3See Pa.R.Crim.P. 702(B) (“[a]fter a finding of guilt and before the imposition
of sentence, after notice to counsel for both parties, the sentencing judge
may, as provided by law, order the defendant to undergo a psychiatric or
psychological examination.”) (emphasis in original).

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that the trial court did address Appellant’s psychological needs by requiring

him to undergo a mental health evaluation as a condition of his sentence. Id.

      Based on the foregoing, we conclude that the trial court conducted a

sufficient presentence inquiry and rendered a sentencing decision that was

both informed and individualized. Appellant’s claims to the contrary do not

warrant relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/06/2018




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