J-S11010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :                 IN THE SUPERIOR COURT OF
                             :                      PENNSYLVANIA
                             :
           v.                :
                             :
                             :
 MARK JENKINS                :
                             :
              Appellant      :                 No. 2208 EDA 2016
                             :

              Appeal from the Judgment of Sentence April 1, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-15-CR-0011317-2014


BEFORE: OTT, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                FILED APRIL 12, 2018

        Mark Jenkins appeals from the judgment of sentence imposed on April

1, 2016, in the Court of Common Pleas of Philadelphia County.         Jenkins

entered an open guilty plea to charges of aggravated assault, possessing a

firearm as a prohibited person, carrying an unlicensed firearm, and possession

of an instrument of crime.1 The trial court sentenced Jenkins to an aggregate

sentence of ten to 20 years’ imprisonment. Jenkins contends his plea was

involuntary “as the trial court was coercive where [Jenkins] rejected the

Commonwealth’s offer of 10 to 20 years[’] confinement, yet the trial court

none-the-less [sic] made [Jenkins] a new offer to enter an open guilty plea

with the inducement that [Jenkins] would likely be given a better sentence


____________________________________________


1   18 Pa.C.S. §§ 2702, 6105, 6106, and 907(b), respectively.
J-S11010-18



than the Commonwealth offered if he pled guilty than if he went to trial and

was convicted.” Jenkins’ Brief at 3. Based upon the following, we affirm.

        The trial court has fully summarized the factual background relevant to

this appeal. See Trial Court Opinion, 11/15/2015, at 1-5. Therefore, we do

not restate it here.     We simply note that, following the April 1, 2016,

sentencing hearing, Jenkins filed a motion for reconsideration of sentence on

April 6, 2016, and a separate motion to withdraw his guilty plea on April 11,

2016.      On July 7, 2016, the trial court denied Jenkins’ motion for

reconsideration, and on July 12, 2016, Jenkins filed a notice of appeal. By

order entered September 20, 2016, Jenkins’ motion to withdraw his guilty plea

was denied by operation of law. Jenkins filed a timely Pa.R.A.P. 1925(b)

statement on October 12, 2016, after the notes of testimony became

available.

        The trial court, in its Pa.R.A.P. 1925(b) statement, has fully addressed

Jenkins’ claim that his plea was involuntary because the trial court induced

him to plead guilty.    See Trial Court Opinion, 11/14/2016, at 5-8 (finding

Jenkins’ plea was knowing and voluntary because (1) the trial court and

Jenkins engaged in extensive discussion regarding the potential minimum

sentences that Jenkins could receive, (2) the trial court specifically told

Jenkins that “I can’t tell you what the sentence would be, whether it be the

8½ to 17 or 10 to 20, because I don’t know enough about you. A presentence,

which will fill me in on all the other details, on the things I have to consider.

That is just the starting point.” [N.T., 10/21/2015, at 7], (3) the trial court

                                      -2-
J-S11010-18



confirmed with Jenkins that he understood the range of sentences, (4) during

the sentencing hearing, the trial court allowed Jenkins to consult with his

attorney twice, and after Jenkins’ second consultation with his attorney, the

trial court confirmed that there were no promises or threats for Jenkins to

enter into a guilty plea, and (5) given the extensive colloquy, Jenkins’

responses, and the trial court’s observations of Jenkins’ demeanor as he was

giving those responses, the trial court was satisfied that Jenkins understood

the potential range of sentences he could receive and that he was not induced,

promised, coerced or threated to plead guilty).

        Our review confirms the trial court’s analysis and its conclusion that

Jenkins’ claim that his plea was involuntary warrants no relief. Accordingly,

we affirm on the basis of the trial court’s November 14, 2016 opinion, at pages

1-8.2



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/18



____________________________________________


2In the event of further proceedings, the parties are directed to attach a copy
of the trial court’s November 14, 2016, opinion to this memorandum.

                                           -3-
J-S11010-18




              -4-
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                                                                                                                                                                                           Circulated 03/14/2018 02:08 PM

                                                                                                                                                                                                             FILED
                                                                                                                                                                                                                NOV 14 2016
                                                         IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                                                                 FIRST JUDICIAL DISTRICT OF PENNSYLvANIA   Criminal Appeals U�it
                                                                         TRIAL DIVISION -CRIMIN/\L       FirstJudicial District of PA
                                  COMMONWEALTH OF PENNSYLVANTA                                                                                              CP-51-CR-0011317-2014
                                                                                CP-51-CR--0011317-2014 comm v Jenkins. Man<
                                                                                                          Opinion
                                  vs.                                                                                                                        2208 EDA 2016

                                  MARK JENKINS                                         1111 \\111111111111 I
                                                                                                  7524918871
                                                                                                                               Ill Ill
                                                                                                         OPINION

                                              Defendant Mark Jenkins pleaded guilty to aggravated assault, two violations of the

                                  Uniform Firearms Act ("VUFA"), and possession of an instrument of crime ("PIC"). The trial

                                  court sentenced Defendant to a guideline sentence of l O years to 20 years of incarceration.

                                  Defendant filed a timely appeal in which he argues: (1) Defendant did not enter a knowing and

                                  voluntary guilty plea, (2) the trial court abused its discretion by not allowing defendant to

                                  withdraw his guilty plea because his plea was not voluntary, and (3) the trial court imposed a

                                  manifestly excessive sentence. For the reasons stated below, the Superior Court should affirm the

                                  judgment of sentence.

                                  FACTUAL BACKGROUND

                                              On October 21, 2015, following jury selection and one day of trial testimony, Defendant

                                  pleaded guilty to aggravated assault, two counts ofVUFA and PIC. The trial court colloquyed

                                  Defendant to ensure that his decision to forego trial and enter into a guilty plea was knowing,

                                  intelligent, and voluntary. During the guilty plea hearing, the trial court and Defendant had the

                                  following exchange:

                                             THE COURT:                            Mr. Jenkins, do you understand the Commonwealth has offered a
                                                                                   new sentence, if you want to resolve it by way of a guilty plea, of ten
                                                                                   to 20 years?
                                             DEFENDANT:                            Yes.
                                             THECOURT: ·                           You talked with your attorney here. That is my understanding, the
                                                                                   merit of continuing the trial.
                                             DEFENDANT:                            Yes.
                                             THE COURT:                            Was that your decision to take that or go to trial?
-·-···---·-- .. __ • 0   ·M-·---.. r. . , ·.- ...----�- •• ..:......-..�-···--   . ·.,. ·- . . __ ··-·   .   ·· ...   '.�   ·--·'-·----'------- ...   -



    DEFENDANT:   I want to go to trial.
    THE COURT:   Have any promise or threats been made to you to make that
                 decision?
    DEFENDANT:   No. Well, yeah. I got threatened with a 1 O-to-20-ycar sentence, that
                 is a threat to me.
    THE COURT:   Okay. And [prosecutor], if he were to plead open, would it be on the
                 ag or attempted murder?
    PROSECUTOR: He wants to plead guilty to the ag, 6105, 6106 and the PIC, but I'd
                 also like to put something else on the record when you're done that
                 part.
    THE COURT:   Sure. Do you understand if you plead guiJty, it will be to the
                 aggravated assault, the guidelines on that, which I think I stated
                 about 102 months to 120, which would be 8 1/2 years as a standard
                 guideline sentence, 8 1/2 to 17 on the low end, 10 to 20 on the upper
                 end. Those -- I couldn't tell you what the sentence would be, because
                I don't know enough about you and the other sentences, which are
                the violation of the uniform firearms act and PIC, you say?
    PROSECUTOR: Yes.
    THE COURT:  Those would likely be concurrent. Of course, they can be
                consecutive and those carry separate penalties of ten and seven and
                five years. Do you understand that?
    DEFENDANT:  Uh-huh.
    THE COURT:  Yes.
    DEFENDANT:  Yes. You just said that the open plea carries eight and ten, right?
    THE COURT:  Well, these are just guidelines.
    DEFENDANT:  Yes.
    THE COURT:  The guidelines are advisory and for every court, they're a starting
                point. On the low end of the guidelines would be 8 1/2 years.
    DEFENDANT:  Okay.
    THE COURT:  The upper would be the maximum l O years. So if T were to give you
                a guideline sentence, it can be anywhere from 8 1/2 to 10 years a
                minimum sentence.
    DEFENDANT:  Okay.
    THE COURT:  I  could mitigate 12 months. I wouldn't mitigate because you already
                started trial. There's no acceptance of responsibility prior to trial,
                which would be in a circumstance, where l do think that would be
                appropriate to mitigate. I can't tell you what the sentence would be,
                whether it be the 8 112 to l 7 or IO to 20, because I don't know
                enough about you. A presentence, which will fill me in on all the
                other details, on the things that I have to consider. That is just the
                starting point. What I'm telling you also is that the other convictions,
                which would be the two violations of the uniform firearms act and
                the PIC, those would likely run concurrent, meaning you won't get
                any additional time. I could run them consecutive, if I think there's a
                basis to do that. Just like I'll telling you, I'm not going to give you
                mitigation. I can't imagine a circumstance where I would make them
                consecutive, but 1 certainly have that right and the Commonwealth


                                                                 -2-
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... 4>·�·-· . . - ---· .:....::..:..._..:.._-·




                                                                        may ask for me to run them consecutive. I may or may not. I don't
                                                                        know. That is the term of your exposure in terms to pleading open .

                                     . . . [brief discussion of Defendant's probation and parole matters]

                                     PROSECUTOR:                        Just so the record is clear, this was at the request of the defendant,
                                                                        yesterday after Ms. Ingraham testified, my understanding is that he
                                                                        asked his counsel to approach me to get the eight to 20 back, so this
                                                                        was not an out of blue. I'm giving him an different offer. The
                                                                        defendant requested it yesterday sometime before 4:00 p.m. and
                                                                        now, is deciding against pleading.
                                     THE COURT:                         That's fine. So let me do this: Do you wish to go trial, continue the
                                                                        trial or do you wish to plead guilty?
                                     DEFENDANT:                         I want to confer with my attorney.

                                     (Brief pause.)

                                     PROSECUTOR:                        Judge, I'll step back, just so he can have a conversation out of my
                                                                        earshot.
                                     THE COURT:                         Okay.

                                     (Brief pause.)

                                     THE COURT:                         Before you go, I want to be clear. Mr. Jen.kins, you understand I'm
                                                                        not telling you you're going to get 8 1/2 years to 17?
                                     DEFENDANT:                         Yes.
                                     THE COURT:                         You can get ten to 20, exactly what the Commonwealth is offering.
                                                                        Do you understand that?
                                     DEFENDANT:                         Yes.
                                     THE COURT:                         You could also get the 8 1/2 to 17, but I'm not being bound by any of
                                                                        that, any of the discussions that you're having because you're
                                                                        pleading open. That means I'll hear from [ defense counsel] what the
                                                                        sentence would be. I'll hear from [the prosecutor] as to what the
                                                                        sentence would be and then I decide what is reasonable and
                                                                        appropriate, given the guidelines and everything else we talked
                                                                        about. Is that clear?
                                     DEFENDANT:                         Yes.
                                     THE COURT:                         You're not going in there thinking there's some promise or guarantee
                                                                        that I'm making to you as to what the sentence would be.
                                     DEFENDANT:                         No. You already explained to me that my sentence would be
                                                                        anywhere from eight -
                                     THE COURT:                         8 1/2.
                                     DEFENDANT:                         8 1/2 and 10 years and you said.
                                     THE COURT:                         As a minimum.
                                     DEFENDANT:                         As a minimum sentence. You said, anything else that I would get
                                                                        sentenced to could be run concurrent, along with [Judge] Schulman's
                                                                        probation and you said if! didn't plead guilty, I guess I get 25, 30,
                                                                        whatever you said, it was one of them big numbers.
                                                                                                          -3-
       _ ..   -   .   .   -·   -   ··-�·---.·   . . . . .,;.________   � ......   _........ -· ,. �··· ·--   .   - • ..   '.   . .. ·------..-   ...   - .....   ..   _ ..._.... .   -··   --




                                    THE COURT:            That is not a threat. Do you understand that?
                                    DEFENDANT:            No. It sounds like a threat.
                                    THE COURT:            It is not a threat. It is just, I'm telling you that if you were to be
                                                          convicted of the attempted murder, it is a different charge of
                                                          aggravated assault, carries with it a much higher penalty. lt is not a
                                                          threat. It is the sentence guidelines. Do you understand that?
                                    DEFENDANT:            Yes.
                                    THE COURT:            Do you understand -- am I threatening you in some way?
                                    DEFENDANT:            No,no.
                                    THE COURT:            And then as to the other violation charge, violation of the uniform
                                                          firearms act and the PIC charge, I'm certainly saying that my
                                                          standard practice would be to run that concurrent. Is that a yes?
                                    DEFENDANT:            Yes.

                                    ... [Defendant consulted with his attorney]

                                    THE COURT:            Anyone promise you anything in exchange for you to give up your
                                                          right to a trial?
                                    DEFENDANT:            No.
                                    THE COURT:            Anyone threaten you to give up your right to a trial?
                                    DEFENDANT:            No .

                                    . . . [trial court informed Defendant about consequences for probation and parole]

                                    THE COURT:            You've heard -- be given the guideline low end of 8 1 /2 to 17, on the
                                                          upper end 10 to 20. You heard me say that could be a starting point
                                                          for me to consider those guidelines. Do you understand that?
                                    DEFENDANT:            Yes.
                                    THE COURT:            I'm not promising you whether it would be 8 1/2 to 17 or 10 to 20.
                                                          Do you understand that?
                                    DEFENDANT:            Yes.

                                    ... [Commonwealth stated factual basis for plea]
 ...
 t
 l'

                                    THE COURT:           And Mr. Jenkins, having heard those facts the Commonwealth
                                                         believe they could prove at trial, do you understand -- do you agree
                                                         with the statement of facts?
                                   DEFENDANT:            Yes.
                                   THE COURT:            Are you pleading guilty because you're guilty or pleading guilty for
                                                         some other reason?
                                   DEFENDANT:            I'm pleading guilty because I'm guilty.
                                   THE COURT:            And do you want to arraign him.
.·                                                       Mark Jenkins, to this Common Pleas Docket, CP-51-CR-0011317
                                   THE CRIER:
                                                         charging you with aggravated assault. How do you plea.
                                   DEFENDANT:            Guilty.
!i
Ii                                 THE CRIER:            Charging you with possession of a firearm prohibited. How did you
..i                                                      plea?
                                   DEFENDANT:            Guilty.
                                                                                    -4-
··--· ·-· ••   •   -. -- •      ------� ··- -· �--·          ·····-··---·-   -� ·--�---.:..   .__ •   �- '- . ..41.- ��--.:..:.•. -•.....:   ·,•..




                           THE CRIER:           Charging you with firearm not to be carried without a license. How
                                                do you plea?
                           DEFENDANT:           Guilty.
                           THE COURT:           Charging possession of an instrument of crime?
                           DEFENDANT:           Guilty.

                   N.T. 10/21/2015 at 4-19.

                           In addition to this extensive colloquy between the trial court and Defendant, Defendant

                   also signed a written guilty plea form that informed him, inter alia, the consequences of pleading

                   guilty and the maximum period of incarceration for the charges to which he pleaded guilty. See

                   Defendant's Written Guilty Plea Colloquy at 1-4.

                   DISCUSSION

                           1.     Defendant's Guilty Plea Was Knowing And Voluntary

                          Defendant argues that his plea was not voluntary because the trial court "induc] ed

                   Defendant] to plead guilty to aggravated assault and firearm offenses by telling [Defendant] that

                   he would likely be given a concurrent minimum sentence of between 8 and a half to 10 years for

                   his plea but that if convicted at trial, the court could impose consecutive sentences and the charges

                   carried separate higher minimum penalties of IO and 7 and 5 years, and that attempted murder

                   carries a much higher penalty." See Statement of Errors Complained of on Appeal, at ,i 5(A).

                          "A plea of guilty forecloses challenges to all matters except the voluntariness of the plea,

                   the jurisdiction of the court, or the legality of the sentence." Commonwealth v. Stewart, 867 A.2d

                   589, 591 (Pa. Super. Ct. 2005). The Pennsylvania Supreme Court has explained the following

                   standard when evaluating whether a guilty plea is knowing and voluntary:

                                  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 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
                                                                    -5-
                 ---"--·-···--·--        -- ...   --   · ....   ·.,_ ·-- ..-- ........ ·-·   '   .••   ·--- ... -.. �---   �-!..:!.. _·.. �� ··-. -- �·--;- ......




                the nature and consequences of his plea and that he knowingly and
                voluntarily decided to enter the plea.

Commonwealth v. Eichinger, 108 A.3d 821, 832 (Pa. 2014).

        Here, the trial court and Defendant engaged in an extensive discussion regarding the

potential minimum sentences that he could receive:

        THE COURT:             Do you understand if you plead guilty, it will be to the aggravated
                               assault, the guidelines on that, which I think I stated about 102
                               months to 120, which would be 8 1/2 years as a standard guideline
                               sentence, 8 1/2 to 17 on the low end, 10 to 20 on the upper end.
                               Those -- I couldn't tell you what the sentence would be, because I
                               don't know enough about you and the other sentences, which are the
                               violation of the uniform firearms act and PIC, you say?
        MS. BUNTING:           Yes.
        THE COURT:             Those would likely be concurrent. Of course, they can be
                               consecutive and those carry separate penalties often and seven and
                               five years. Do you understand that?
        DEFENDANT:             Uh-huh.
        THE COURT:             Yes.
        DEFENDANT:             Yes. You just said that the open plea carries eight and ten, right?
        THE COURT:             Well, these are just guidelines.
        DEFENDANT:             Yes.
        THE COURT:             The guidelines are advisory and for every court, they're a starting
                               point. On the low end of the guidelines would be 8 1/2 years.
        DEFENDANT:             Okay.
        THE COURT:             The upper would be the maximum 10 years. So ifI were to give you
                               a guideline sentence, it can be anywhere from 8 1/2 to IO years a
                               minimum sentence.
        DEFENDANT:             Okay.

N.T. 10/21/2015 at 5-6. The trial court specifically told Defendant that "I can't tell you what the

sentence would be, whether it be the 8 1/2 to 17 or l O to 20, because I don't know enough about

you. A presentence, which will fill me in on all the other details, on the things that I have to

consider. That is just the starting point." Id. at 7.

        After this discussion, the trial court confirmed with Defendant that he understood the

range of sentences:

        THE COURT:            Before you go, I want to be clear. Mr. Jenkins, you understand I'm
                              not telling you you're going to get 8 1/2 years to 17?
        DEFENDANT:            Yes.

                                                         -6-
.   -·--·--.. --·--·   -   '   -   ·-· -   --·-.   _ ---   .·   ·   .. ··   -   -   .. ··-·-·· ··-- ·-··· .. '--------------·-. .··-· --·····-
                                                                                      ·.:                                                        -· -- ··-··· ---�-   .   --------   .   ·----- .. · -




                               THE COURT:                       You can get ten to 20, exactly what the Commonwealth is offering.
                                                                Do you understand that?
                               DEFENDANT:                       Yes.
                               THE COURT:                       You could also get the 8 1/2 to 17, but I'm not being bound by any of
                                                                that, any of the discussions that you're having because you're
                                                                pleading open. That means I'll hear from [defense counsel] what the
                                                                sentence would be. I'll hear from [the prosecutor] as to what the
                                                                sentence would be and then I decide what is reasonable and
                                                                appropriate, given the guidelines and everything else we talked
                                                                about. Is that clear?
                               DEFENDANT:                       Yes.
                               THE COURT:                       You're not going in there thinking there's some promise or guarantee
                                                                that I'm making to you as to what the sentence would be.
                               DEFENDANT:                       No. You already explained to me that my sentence would be
                                                                anywhere from eight -
                               THE COURT:                       8 1/2.
                               DEFENDANT:                       8 1 /2 and 10 years and you said.
                               THE COURT:                       As a minimum.
                               DEFENDANT:                       As a minimum sentence. You said, anything else that I wou]d get
                                                                sentenced to could be run concurrent, along with [Judge] Schulman's
                                                                probation and you said if I didn't plead guilty, I guess I get 25, 30,
                                                                whatever you said, it was one of them big numbers.
                               THE COURT:                       That is not a threat. Do you understand that?
                               DEFENDANT:                       No. It sounds like a threat.
                               THE COURT:                       It is not a threat. It is just, I'm telling you that if you were to be
                                                                convicted of the attempted murder, it is a different charge of
                                                                aggravated assault, carries with it a much higher penalty. It is not a
                                                                threat. It is the sentence guidelines. Do you understand that?
                               DEFENDANT:                       Yes.
                               THE COURT:                       Do you understand -- am I threatening you in some way?
                               DEFENDANT:                       No, no.

                       Id. at 10-12.

                               During the sentencing hearing, the trial court allowed Defendant to consult with his

                       defense attorney twice. After Defendant's second consultation with his defense attorney, the trial

                       court confirmed that there were no promises or threats for Defendant to enter into a guilty plea:

                               THE COURT:                       Anyone promise you anything in exchange for you to give up your
                                                                right to a trial?
                               DEFENDANT:                       No.
                               THE COURT:                       Anyone threaten you to give up your right to a trial?
                               DEFENDANT:                       No.




                                                                                                -7-
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                                              THE COURT:               You've heard -- be given the guideline low end of 8 1 /2 to 17, on the
                                                                       upper end 10 to 20. You heard me say that could be a starting point
                                                                       for me to consider those guidelines. Do you understand that?
                                              DEFENDANT:               Yes.
                                              THE COURT:               I'm not promising you whether it would be 8 1/2 to 17 or 10 to 20.
                                                                       Do you understand that?
                                              DEFENDANT:               Yes.

                                  Id. at 14, 16.

                                              Given this extensive colloquy, Defendant's responses and the trial court's observation of

                                  Defendant's demeanor as he was giving those responses, the trial court was satisfied that

                                  Defendant understood the potential range of sentences that he could receive as well as that he

                                  was not induced, promised, coerced or threatened to plead guilty. As such, Defendant's claim

                                  that his guilty plea was not voluntary fails. 1

                                              2.           The Trial Court Did Not Abuse Its Discretion In
                                                           Denying Defendant's Motion To Withdraw His Guilty Plea

                                              Defendant argues that the trial court abused its discretion by refusing to allow him to

                                  withdraw his guilty plea after sentencing because his plea was not voluntary. See Statement of

                                  Errors Complained of on Appeal, at 1 5(8). 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 plea rises to the level of manifest injustice when it was entered into involuntarily,

                                  unknowingly, or unintelligently."' Commonwealth v. Pantalion, 957 A.2d 1267, 1271-72 (Pa.

                                  Super. Ct. 2008) (quoting Commonwealth v. Muhammad, 794 A.2d 378, 383 (Pa. Super. Ct.

                                  2002).




                                  1 Somewhat surprisingly, Defendant claims that the trial court erred or induced Defendant to plead guilty when it
                                  informed Defendant of the maximum sentences that could be imposed ifhe was convicted at trial of the attempted
                                  murder charge and that the trial court could impose consecutive sentences. In fact the opposite is true: if the trial
                                  court failed to advise Defendant of the maximum period of incarceration or that the sentences could be imposed
                                  consecutively, that would likely be a basis for withdrawal of the plea. See generally Commonwealth v. Persinger,
                                  615 A.2d 1305, 1306-07 (Pa. 1992) (sentencing court must advise defendant of the maximum sentence imposable
                                  for each conviction as well as that the sentences can be imposed consecutively).
                                                                                            -8-
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                                    Here, Defendant did not request to withdraw his plea based upon a claim that his plea

                      was not voluntary. To the contrary, Defendant sought to withdraw his plea only on the mere

                      assertion that he was innocent, which does rise to the level of manifest injustice. See

                       Supplemental Post Sentence Motion To Withdraw Guilty Plea, at ,i 6. Thus, there is no merit to

                      Defendant's claim that he sought to withdraw his guilty plea because his plea was not voluntary,

                      and, even if he did properly preserve this claim for appellate review, Defendant's plea was

                      knowing, intelligent and voluntary, supra at 5-8.2

                                   3.           The Trial Court Did Not Abuse Its Discretion In Imposing A Guideline Sentence

                             In his third claim of error, Defendant argues that the trial court erred in imposing a "manifestly

                      excessive" sentence by considering "evidence of conduct that [Defendant] was never charged with

                      nor convicted of, namely that [Defendant] shot someone, and where the court impermissibly based

                      the sentence imposed on the severity of the offense and [Defendant's] prior record, both of which

                      are already accounted for in the Sentencing Guidelines." See Concise Statement of Errors

                      Complained of on Appeal, at ,i 5(C).

                                                a.      Defendant Fails To Raise A Substantial Question Regarding The Sentence

                                   As an initial matter, defendants do not have an automatic right to an appeal in regards to

                      the discretionary aspects of sentencing. Commonwealth v. Mastromarino, 2 A.3d 581, 585 (Pa.

                      Super. Ct. 20 l 0). Thus, when challenging a discretionary aspect of sentencing, a defendant must

                      present a substantial question that forms the basis for grounds to appeal. Commonwealth v.

                      Malovich, 903 A.2d 1247, 1250 (Pa. Super. Ct. 2006). A substantial question "exists 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



                      2
                        Additionally, it was not error for the trial court to have not scheduled a hearing on Defendant's motion to withdraw
                      his guilty plea. See generally Commonwealth v. Stork, 737 A.2d 789, 791 (Pa. Super. Ct. 1999); Pa.R.Crim.P.
                      720(8)(2) (hearings on post-sentence motions are at the discretion of the trial court).
                                                                                                -9-
.....   ----···---·----------··---·-··-· _ .. ·---.. --·--�·-··---
                                              ...                    '   --··---...· .· ..   •···---· ... ...:._.   -   ..   ·.   -   -�-�-.�'-----"---'--




                       norms which underlie the sentencing process." Commonwealth v. Austin, 66 A.3d 798 (Pa.

                       Super. Ct. 2013).

                                Here, Defendant presents no substantial question regarding the discretionary aspects of

                       his sentence (e.g., whether to impose a concurrent or consecutive sentence) and, as a result, he

                       has no automatic right to appeal. Defendant cannot present a substantial question because there is

                       no allegation that the sentence was inconsistent with a specific provision of the sentencing code

                       or contrary to the fundamental norms that underlie the sentencing process. As such, the appellate

                       court should deny consideration of any alleged error in Defendant's sentence because he cannot

                       identify a substantial question regarding his sentence.

                                         b.         The Trial Court Did Not Impose An Unduly Excessive Sentence

                                The "proper standard of review when considering whether to affirm the sentencing

                       court's determination is an abuse of discretion." Commonwealth v. Walls, 926 A.2d 957, 961 (Pa.

                       2007). An "abuse of discretion is more than a mere error of judgment; thus, a sentencing court

                      will not have abused its discretion unless 'the record discloses that the judgment exercised was

                      manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will."' Id. ( quoting

                       Commonwealth v. Smith, 673 A.2d 893, 895 (Pa. 1996)). Moreover, an abuse of discretion will

                      not be found "merely because an appellate court might have reached a different conclusion." Id

                       (quoting Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1046 (Pa. 2003)).

                                In sentencing a defendant, the sentencing 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. Con. Stat.§ 9721(b).

                      Additionally, the sentencing court should consider "(1) (t]he nature and circumstances of the

                      offense and the history and characteristics of the defendant, (2) [t]he opportunity of the


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sentencing court to observe the defendant including any presentence investigation, (3) [t]he

findings upon which the sentence was based, and (4) [t]he guidelines promulgated by the

[sentencing] commission." 42 Pa. Cons. Stat. § 9781(d).

        Here, Defendant's prior record score was a RFEL, and the offense gravity score for the

aggravated assault conviction was an 11. Under the Pennsylvania Sentencing Guidelines, the

standard range for the aggravated assault conviction with the deadly weapon enhancement was

102 months to 120 months, plus or minus 12 months. The trial court sentenced Defendant to a

sentence of 120 months to 240 months for the aggravated assault conviction with concurrent

sentences for the VUF A and PIC convictions. The trial court also sentenced Defendant to a

concurrent sentence of 3 years to 6 years for his violation of Judge Schulman's probation.

        In imposing the sentence, the trial court considered, inter alia, Defendant's pre-sentence

investigation, its opportunity to observe Defendant during his guilty plea and the sentencing

hearing, counsels' arguments, testimony from Defendant's witnesses during the sentencing

hearing, Defendant's statement to the trial court during the sentencing hearing, and Defendant's

psychological evaluation. The trial court considered the following mitigating and aggravating

factors: (1) Defendant's extensive family support; (2) Defendant's acceptance ofresponsibility

by pleading guilty; (3) the abuse Defendant suffered during childhood, (4) Defendant's mental

health issues, (5) the fact that some of Defendant's prior convictions were for specific violent

offenses including robbery, sexual assault and witness intimidation, and (6) Defendant's

previous violations of probation and parole. See N.T. 10/02/2015 at 4-5, 12-16, 21-24.

        Based upon the foregoing, the trial court's sentence was consistent with the protection of

the public, the gravity of the offense, the impact of the crime on the victim, and Defendant's

rehabilitative needs. Although the trial court imposed the maximum statutory sentence for

aggravated assault, the sentence imposed was at the top of the standard range of the sentencing

                                                            -11-
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                           guidelines due to Defendant's prior record score, the offense gravity score for the aggravated

                           assault conviction, and the deadly weapon enhancement. For these reasons, Defendant's sentence

                           was reasonable and an appropriate exercise of its discretion.

                                      Defendant's argument that the trial court based its sentencing on a fact not in evidence -

                           that Defendant shot the victim - is without merit. During the guilty plea and the sentencing

                           hearings, Defendant admitted that he possessed a firearm, that he fired three shots at Charles

                       · King and that one of the shots struck King at his hip. N.T. 10/21/2015 at 17-18; N.T. 04/01/2016

                           at 21-22. Additionally, Defendant's argument that the sentence was impermissibly based on the

                           severity of the offense and Defendant's prior record - both of which are already accounted for in

                           the Sentencing Guidelines - is also without merit because the trial court considered the prior

                           convictions only to the extent to which they were for specific violent convictions. The specific

                           violent offenses for which Defendant was previously convicted is not already included in the

                           prior record score and is a permissible consideration under Sections 9721(b) and 9781 (d). See

                           generally Commonwealth v. Simpson, 829 A.2d 334, 337-38 (Pa. Super. Ct. 2003) (sentencing

                           court "permitted to use prior conviction history and other factors already included in the

                           guidelines if they are used to supplement other extraneous sentencing information;" affirming

                           trial court's aggravated sentence where - in part- sentence was imposed based upon defendant's

                           prior conviction for aggravated assault as a crime of violence); Commonwealth v. Mills, 496

                           A.2d 752, 754 (Pa. Super. Ct. 1985) (sentencing court properly considered seven prior

                           convictions for burglary when sentencing defendant).




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                                                                                                                                                                      _,__




                     CONCLUSION

                                  For the foregoing reasons, the appellate court should affirm the judgment of sentence.




                                                        '
                     Dated: November 14, 2016




                                                                                                -13-
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Comm. v. Mark Jenkins
CP-51-CR-0011317-2014
2208 EDA 2016

                                                               PROOF OF SERVICE

I hereby certify that I am this day caused to be served the foregoing Order upon this person(s):


Attorney for Appellant:                                        Karl Baker, Esquire
                                                               Defender Association of Philadelphia
                                                               1441 Sansom Street
                                                               Philadelphia, PA 19102


Type of Service:                                               CJC Mailbox


Appellee:                                                      Hugh J. Bums, Jr., Esquire
                                                               Philadelphia District Attorney's Office
                                                               3 S. Penn Square
                                                               Philadelphia, PA 19107

Type of Service:                                               CJC Mailbox
