J-S31028-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

    JAMIE CRUZ, SR.

                             Appellant                No. 1801 WDA 2018


              Appeal from the Judgment of Sentence May 9, 2017
                 In the Court of Common Pleas of Erie County
               Criminal Division at No: CP-25-CR-0002299-2016

BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY STABILE, J.:                          FILED AUGUST 08, 2019

        Appellant, Jamie Cruz, Sr., appeals from his judgment of sentence of

two and a half to five years’ imprisonment for terroristic threats, simple

assault, and receiving stolen property, plus five years’ probation for stalking.1

Counsel has filed a brief and petition to withdraw pursuant to Anders v.

California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d

349 (Pa. 2009). We grant counsel’s petition to withdraw and affirm Appellant’s

judgment of sentence.

        On August 24, 2016, the Commonwealth filed an information charging

Appellant with the above-mentioned offenses and related charges.             The

Commonwealth alleged that on May 14, 2016, Appellant demanded the

seventeen-year-old female complainant “get into the car or else,” choked her

to the point of unconsciousness, drove her to various locations around Erie

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1   18 Pa.C.S.A. §§ 2706, 2701, 3925 and 2709.1, respectively.
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County while preventing her from leaving the car, directed her to withdraw

$300.00 from her bank account, took the money, and physically and sexually

assaulted her.

      On October 28, 2016, Appellant’s trial counsel filed an omnibus pre-trial

motion seeking, inter alia, habeas corpus relief on multiple charges.            On

January 9, 2017, the trial court issued an order denying habeas corpus relief.

      On March 28, 2017, Appellant entered into a negotiated plea agreement

in which he pleaded guilty to Counts Three (terroristic threats), Four (simple

assault) and Six (receiving stolen property) of the criminal information.

Appellant also agreed to amend the charge of corruption of minors in Count

Eight to stalking, graded as a first-degree misdemeanor, and to plead guilty

to the amended charge. Appellant expressly acknowledged that he committed

his crimes of terroristic threats and stalking in Erie County. N.T., 3/28/17, at

11-13.   Moreover, in the course of pleading guilty to stalking, Appellant

admitted physically assaulting the victim at various locations in Erie County.

Id. at 13. The Commonwealth stated that pursuant to the agreement, it would

move to nolle pros the remaining counts. The Commonwealth added that it

would have no objection to a sentence of two and a half to five years’

imprisonment plus a probationary tail, but it advised Appellant that the court

would not be bound by this recommendation, and that Appellant would not be

permitted   to   withdraw   the   plea    should   the   Judge   not   follow   that

recommendation. Id. at 10-11. The trial court itself informed Appellant that

it had the final say as to the Appellant’s sentence and was not bound by the

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Commonwealth’s position.      Id. at 11-19.   Appellant acknowledged that he

understood, and that he was knowingly and voluntarily entering his guilty

plea.    Id. at 20.   The court accepted Appellant’s plea and granted the

Commonwealth’s motion to nolle pros the remaining counts. Id. at 20-21.

We address the guilty plea colloquy in further detail below.

        On May 9, 2017, the court sentenced Appellant to twelve to twenty-four

months’ imprisonment for terroristic threats, a consecutive term of twelve to

twenty-four months’ imprisonment for simple assault, a consecutive term of

six to twelve months’ imprisonment for receiving stolen property, and a

consecutive five year term of probation for stalking.

        On May 18, 2017, Appellant filed a motion to reconsider and modify

sentence, asserting that the five-year probationary tail was excessive.

Appellant asked the trial court to modify the sentence to run the five-year

probationary tail concurrently with the period of incarceration. On May 19,

2017, the trial court denied the motion.

        On September 29, 2017, Appellant filed a petition pursuant to the Post

Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. The court appointed PCRA

counsel, who filed an amended PCRA petition alleging that trial counsel failed

to raise a sentencing challenge that Appellant requested, namely, that the

sentences at each count should have been imposed concurrently, not

consecutively, in both the motion to modify sentence and in a direct appeal.

On March 21, 2018, the PCRA court issued a notice of its intention to dismiss

the PCRA petition, and on April 20, 2018, it dismissed the petition.

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      Appellant appealed to this Court, which issued a memorandum decision

vacating the PCRA court’s order and remanding for an evidentiary hearing to

determine if Appellant directed trial counsel to file a direct appeal.

Commonwealth v. Cruz, 2018 WL 6427275 (Pa. Super. 2018).                   On

December 7, 2018, instead of holding a hearing, the PCRA court entered an

order reinstating Appellant’s right to file a direct appeal nunc pro tunc. The

court appointed the Erie County Public Defender to represent Appellant in this

appeal. On December 21, 2018, the Public Defender filed a timely notice of

appeal. Both Appellant and the court complied with Pa.R.A.P. 1925(a).

      On April 1, 2019, the Public Defender filed an Anders brief raising two

issues:

      1. Did the trial court commit an abuse of discretion when it
      imposed consecutive rather than concurrent sentences at all of
      the counts?

      2. Did the trial court err when it denied Appellant’s pre-trial
      Petition for Habeas Corpus?

Appellant’s Brief at 7.   On the same date, the Public Defender filed an

application for leave to withdraw from this case.

      On April 29, 2019, Appellant filed a pro se response to the Public

Defender’s Anders brief claiming that the trial court lacked jurisdiction over

the charges because the events in this case (which he now claimed were

entirely the victim’s fault) took place in the state of New York.   Appellant

attached a declaration to this response claiming that the entire matter

occurred within the state of New York. Appellant also attached excerpts from

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his June 7, 2016 preliminary hearing in which the victim testified about various

events in New York.

      On June 7, 2019, Appellant filed an application for relief based on “newly

discovered evidence” of a phone call between Appellant and the victim that

took place while Appellant was in Erie County jail. Attached as an exhibit to

this application was a May 16, 2019 letter from the Public Defender to

Appellant advising that the phone call could not be raised as evidence because

Appellant chose to plead guilty instead of going to trial. The Public Defender

also took issue in this letter with the jurisdictional argument raised in

Appellant’s pro se response to her Anders brief.       According to the Public

Defender, Appellant’s jurisdictional argument failed because (1) there was no

record evidence that the crimes took place in New York, (2) the criminal

complaint stated that the location where the victim withdrew the money

underlying the charge of receiving stolen property was in Erie County, (3) the

preliminary hearing excerpts attached to Appellant’s pro se response

concerned events prior to the acts for which he was charged, and (4) Appellant

“admitted on the record” during his guilty plea hearing “that the offenses

occurred in various locations in Erie County, Pennsylvania. Once you admit

this fact, you are bound by your statements.” Application for Relief, exhibit

A.

      We first consider the adequacy of the Public Defender’s motion for leave

to withdraw. Our Supreme Court requires counsel to do the following:


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      Prior to withdrawing as counsel on a direct appeal under Anders,
      counsel must file a brief that meets the requirements established
      by our Supreme Court in Santiago. The brief must:

      (1)   provide a summary of the procedural history and facts, with
            citations to the record;

      (2)   refer to anything in the record that counsel believes
            arguably supports the appeal;

      (3)   set forth counsel’s conclusion that the appeal is frivolous;
            and

      (4)   state counsel’s reasons for concluding that the appeal is
            frivolous.

      Counsel should articulate the relevant facts of record, controlling
      case law, and/or statutes on point that have led to the conclusion
      that the appeal is frivolous. Counsel also must provide a copy of
      the Anders brief to his client. Attending the brief must be a letter
      that advises the client of his right to: (1) retain new counsel to
      pursue the appeal; (2) proceed pro se on appeal; or (3) raise any
      points that the appellant deems worthy of the court’s attention in
      addition to the points raised by counsel in the Anders brief.

Commonwealth v. Orellana, 86 A.3d 877, 879–80 (Pa. Super. 2014). The

Public Defender’s brief complies with these requirements by (1) providing a

summary of the procedural history and facts with copious citations to the

record; (2) referring to matters of record relevant to this appeal; and (3)

explaining why the appeal is frivolous. The Public Defender also sent her brief

to Appellant with a letter advising him of the rights listed in Orellana. All of

Anders’ requirements are satisfied.

      The first issue in the Anders brief is whether the trial court abused its

discretion by imposing consecutive sentences instead of concurrent sentences.

We conclude that the court acted within its discretion.


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      “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.” Commonwealth v. Booze, 953 A.2d 1263, 1278 (Pa. Super.

2008). An abuse of discretion is not merely an error in judgment. “Rather,

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.” Id.

      In reviewing challenges to the discretionary aspects of a sentence, we

have observed:

      Appellant is not entitled as of right to a review of such a challenge.
      Our jurisdiction over a claim regarding the discretionary aspects
      of sentence must be established as follows:

         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. § 9781(b).

Commonwealth v. Levy, 83 A.3d 457, 467 (Pa. Super. 2013) (quoting

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).

      Appellant fails the second prong of this test, because his trial counsel

did not make this particular challenge at sentencing or in a timely filed post-

sentence motion. Accordingly, Appellant waived this issue. Commonwealth



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v. Jones, 858 A.2d 1198, 1204 (Pa. Super. 2004) (objection to discretionary

aspects of sentence waived where it was neither raised at sentencing hearing

or in timely post-sentence motion to modify sentence). Appellant also fails

the fourth prong, because the allegation that the trial court abused its

discretion by imposing consecutive instead of concurrent sentences does not

raise a substantial question. Commonwealth v. Hoag, 665 A.2d 1212, 1214

(Pa. Super. 1995) (substantial question not raised where appellant sought to

challenge imposition of consecutive, rather than concurrent, sentences

because appellant was not entitled to volume discount on crime).

     Further, “[w]here a plea agreement contains a negotiated sentence

which is accepted and imposed by the trial court, there is no authority to

permit   a   challenge   to   the   discretionary   aspects   of   that   sentence.”

Commonwealth v. Reichle, 589 A.2d 1140, 1141 (Pa. Super. 1991). Herein,

the Commonwealth outlined the terms of the parties’ plea agreement during

the plea hearing by specifying that the Commonwealth would recommend “a

sentence of two and one-half to five years’ incarceration plus a probationary

tail to be determined by the Court.” N.T., 3/28/17, at 7-8. When asked if he

understood this, Appellant responded yes. Id. The trial court later asked

Appellant if any promises were made to him that led to the plea. Id. at 15.

Appellant responded “no.” Id. The court advised Appellant of the maximum

range of sentences and explained that the Commonwealth did not object to a

sentence of two and one-half to five years. Id. at 15-16. Appellant responded

that he understood. Id. at 16. The trial court explained, however, that it was

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free to reject the recommendation, and any such rejection would not entitle

Appellant to withdraw his plea.          Id. at 16-17.      Appellant responded

affirmatively. Id. After the plea colloquy, the Commonwealth stressed that

it would be asking for a lengthy probationary tail after the period of two and

one half to five years’ imprisonment. Id. at 18. Neither Appellant nor trial

counsel claimed during the guilty plea hearing that there was any agreement

for Appellant to receive concurrent sentences.           Thus, by entering the

negotiated plea, Appellant bargained away his right to challenge the court’s

decision to impose consecutive sentences.

      Next, we reject the second argument in Appellant’s Anders brief, a

claim that the trial court erred in denying his pre-trial motion for habeas

corpus relief. By pleading guilty, Appellant waived all defects and defenses

except lack of jurisdiction, invalidity of the plea, and illegality of the sentence.

Commonwealth v. Tareila, 895 A.2d 1266, 1266 (Pa. Super. 2006).

Challenges to pre-trial rulings such as denial of habeas corpus are not

cognizable after the entry of a guilty plea. Commonwealth ex rel. Adderley

v. Myers, 215 A.2d 624, 625 (Pa. 1966) (entry of guilty plea results in waiver

of right to question proceedings before the plea).

      Next, during this appeal, Appellant filed a pro se response to the Public

Defender’s Anders brief arguing that the trial court lacked jurisdiction over

the charges because his acts took place in New York. Although Appellant did

not challenge the trial court’s jurisdiction earlier in these proceedings, he has

the right to raise it at this juncture because questions of subject matter

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jurisdiction “[are] not waivable, even by consent, and may be raised by any

party or by the court, sua sponte, at any stage of the proceeding.”

Commonwealth v. Hemingway, 13 A.3d 491, 496 (Pa. Super. 2011).

Moreover, as noted above, Appellant’s guilty plea does not operate as a waiver

of his jurisdictional argument. Tareila, 895 A.2d at 1266.

      Nevertheless, Appellant’s argument fails on the merits.      The Crimes

Code’s jurisdictional statute provides that “a person may be convicted under

the law of this Commonwealth of an offense committed by his own conduct”

if, inter alia, “the conduct which is an element of the offense or the result

which is such an element occurs within this Commonwealth.” 18 Pa.C.S.A. §

102(a)(1). Here, Appellant admitted during his guilty plea hearing that he

committed terroristic threats “in the county of Erie,” N.T., 3/28/17, at 12,

committed stalking in the “city of Erie,” Id. at 13, and “physically assaulted”

the victim at various locations in Erie County. Id. These admissions establish

the court’s jurisdiction under Section 102(a)(1), because “a defendant is

bound by the statements which he makes during his plea colloquy” and “may

not assert grounds for withdrawing the plea that contradict statements made

when he pled guilty . . . [or] recant the representations he made in court when

he entered his guilty plea.” Commonwealth v. Jabbie, 200 A.3d 500, 506

(Pa. Super. 2018).

      Appellant did not expressly admit during his guilty plea hearing that he

committed the charge of receiving stolen property in Erie County.        Other

evidence before us, however, establishes this fact. The criminal complaint

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against Appellant charged him with receiving stolen property at a Country Fair

convenience store in Erie, where the victim withdrew money and gave it to

Appellant. Appellant effectively admitted that the complaint was correct in his

declaration underlying his pro se response to counsel’s Anders brief.        In

relevant part, his declaration stated that

      [the victim] calmed down [during] the rest of the trip to
      Pennsylvania. I took her to my house to get her property and
      some money[,] then we left to go to her cousins and I stopped to
      get gas at Country Fair while [the victim] went to the ATM to get
      money. Once in the car she handed the money over to me in
      order not to go to her cousins’ house but straight to New York.

Appellant’s Pro Se Response To Anders Brief, exhibit A, at 2. Thus, Appellant

admitted that (1) he and the victim drove back to Pennsylvania; (2) they

proceeded to his house in Pennsylvania and then to Country Fair, (3) the

victim obtained money from the ATM at Country Fair and handed the money

to Appellant, and (4) they drove back to New York. Thus, Appellant’s own

statement confirms that he received stolen property from the victim in Erie

County.

      Finally, on June 7, 2019, Appellant pro se moved for relief in this Court

based on “newly discovered evidence” of a phone call between Appellant and

the victim that took place while Appellant was in Erie County jail. Application,

6/7/19, at 1. It is unknown, however, when the recording took place, i.e.

before or after his guilty plea. Yet, Appellant opines that the evidence “could

prove his innocen[ce] although he had plead [sic] guilty” and, it could support



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a challenge to have his sentences imposed as concurrent rather than

consecutive. Id. at 2.

      On June 20, 2019, Appellant filed another application with this Court,

seeking an evidentiary hearing on the newly discovered evidence described

above. In his latest application, Appellant clarifies that the new evidence

consists of a recorded conversation between Appellant and victim in which

Appellant asked victim “why you are doing this to me” to which victim replied

“well[,] you should have thought about that before you cheated on me with 3

different girls.” Appellant’s Motion, 6/20/19, at 3. According to Appellant, the

new evidence would “prove that the alleged victim had a motive which caused

the alleged victim to file a false criminal complaint.” Id.

      It appears, therefore, that the alleged new evidence might be useful for

two purposes: to challenge the discretionary aspects of his sentence and to

challenge the credibility of the victim. Appellant is due no relief.

      To warrant relief, after-discovered evidence must meet a four-
      prong test: (1) the evidence could not have been obtained before
      the conclusion of the trial by reasonable diligence; (2) the
      evidence is not merely corroborative or cumulative; (3) the
      evidence will not be used solely for purposes of impeachment; and
      (4) the evidence is of such a nature and character that a different
      outcome is likely.

Commonwealth v. Rivera, 939 A.2d 355, 359 (Pa. Super. 2007) (citation

omitted).

      It is clear Appellant would not be able to meet one or more of the prongs

of the test. First, Appellant’s applications do not provide any explanation as


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to whether the recording took place before or after the guilty plea. Second,

as acknowledged, the new evidence would be used for impeachment purposes.

Finally, the new evidence would be used to challenge the discretionary aspects

of the sentence, not the guilty plea itself. Thus, we are compelled to conclude

Appellant’s proffers do not merit a further evidentiary hearing. Accordingly,

we deny Appellant’s applications for relief.

       Judgment of sentence affirmed.              Appellant’s applications for relief

denied. Appellant’s petition to order Department of Corrections to adjust costs

and fines transferred to Commonwealth Court.2 Application to withdraw as

counsel granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/8/2019




____________________________________________


2 On July 23, 2019, Appellant filed a petition claiming that the Department of
Corrections denied his inmate grievance to adjust the fines and costs in his
inmate account from $3,966.48 to $300.00.              Litigation over inmate
grievances, and inmate account deduction claims in particular, falls within the
jurisdiction of the Commonwealth Court. See, e.g., Morgalo v. Gorniak,
134 A.3d 1139 (Pa. Cmwlth. 2016). Pursuant to Pa.R.A.P. 751, we transfer
this petition to the Commonwealth Court for disposition.

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