J-S15038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

STEVEN BURNS,

                            Appellant                No. 2223 EDA 2014


             Appeal from the Judgment of Sentence March 26, 2014
              in the Court of Common Pleas of Philadelphia County
               Criminal Division at Nos.: CP-51-CR-0008633-2013
                               CP-51-0008635-2013


BEFORE: BENDER, P.J.E., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                             FILED MARCH 02, 2016

        Appellant, Steven Burns, appeals from the judgment of sentence of

March 26, 2014, entered following his open guilty plea to attempted murder,

aggravated assault, robbery, burglary, criminal conspiracy, possession of a

firearm prohibited, possession of an instrument of crime, and simple

assault.1    Specifically, Appellant challenges the voluntariness of his guilty

plea, the legality of his sentence, and the discretionary aspects of his

sentence. For the reasons discussed below, we affirm in part and vacate in

part.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  18 Pa.C.S.A. §§ 901(a), 2702(a)(1), 3701(a)(1)(ii), 3502(a)(1), 903(c),
and 6105(a)(1), 907(a), and 2701(a), respectively.
J-S15038-16


      We take the underlying facts and procedural history in this matter

from the trial court’s April 23, 2015 opinion and our independent review of

the certified record.

      On March 12, 2013 at approximately 9:25 p.m., [the victim] was
      in her home at 2072 Carver Street in the City and County of
      Philadelphia. [The victim’s] three young children, aged [twelve],
      [four], and [five] days, were also in the home with her. [The
      victim] heard a knock on the front door and, through the closed
      door, asked who it was. Appellant identified himself as Rob and
      stated that he needed to talk to [the victim’s] fiancé. [The
      victim] stated that her fiancé was not home and Appellant told
      her to take down a message, while referring to [the victim] by
      her nickname. [The victim] opened the door, at which point
      Appellant and his codefendant, Rodney Smith, both armed with
      handguns, forced their way into the home. Appellant had a
      small silver handgun that he pointed at [the victim’s] face.

             Both men began asking where the money was, and [the
      victim] stated that she did not have any money.               [The
      codefendant] went upstairs while Appellant forced [the victim]
      upstairs by grasping her ponytail and holding his gun to the back
      of her head. [The victim’s] four year old son was crying and at
      some point Appellant threatened to kill the child if [the victim]
      could not get him to be quiet. [The codefendant] ransacked the
      bedroom and was unable to find anything of value. Appellant
      then forced [the victim] to lie face down and stated, “I guess this
      bitch is willing to die for this money.” Appellant then unloaded
      all but one round from the gun’s chamber and began to play
      Russian roulette. [The victim] heard Appellant pull the trigger
      twice.

            At that point, Philadelphia Police Officers knocked on the
      door responding to a report of screaming inside the residence.
      The two men then ran down the stairs and [the victim] ran to
      the door to allow the officers to enter. Appellant ran into the
      rear alley and attempted to jump a fence, but realized he was
      cornered and threw his gun into the air. Appellant resisted
      arrest and broke loose while only one hand was cuffed. He
      began swinging at the Officers, one of whom received a
      laceration on his face after being struck by the handcuffs.
      Appellant and [the codefendant] were both arrested at the scene

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      and identified as the perpetrators by [the victim]. Appellant had
      a previous robbery conviction and as such, was prohibited from
      possessing a firearm.

(Trial Court Opinion, 4/23/15, at 2-3) (footnote omitted).

      On July 15, 2013, the Commonwealth filed an information charging

Appellant with the aforementioned offenses and other related crimes.           On

January   15,   2014,   Appellant   entered   an   open   guilty   plea   to   the

aforementioned offenses; in return, the Commonwealth nolle prossed the

remaining charges.      On March 18, 2014, the trial court imposed an

aggregate sentence of not less than twenty-one nor more than forty-two

years of incarceration. Appellant did not seek to withdraw his guilty plea.

      On March 20, 2014, the Commonwealth filed a post-sentence motion

explaining that the docket incorrectly showed that it had nolle prossed the

attempted murder charge. The trial court granted the motion.

      On March 26, 2014, the trial court resentenced Appellant to an

identical aggregate sentence. Appellant did not seek to withdraw his guilty

plea. On March 28, 2014, Appellant filed a post-sentence motion challenging

the legality and discretionary aspects of his sentence. (See Defense Post-

Sentence Motion, 3/28/14, at 2-5). Appellant did not seek to withdraw his




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guilty plea. (See id.). The trial court denied the motion by operation of law

on July 21, 2014. The instant, timely appeal followed.2

       On appeal, Appellant raises the following questions for our review:

              1. Was not the voluntariness of [A]ppellant’s guilty plea
       implicated and did not the [trial] court violate [A]ppellant’s
       federal and state constitutional rights to due process, his right to
       a jury trial and Rule 590 of the Rules of Criminal Procedure, by
       coercing [A]ppellant to plead guilty on the brink of trial by telling
       him, inter alia, that if convicted after trial he would remain in
       prison for his “natural lifetime,” but that in a non-negotiated
       guilty plea he would “do better” than the Commonwealth’s offer
       of twenty to forty years?

              2. Did not the trial court err as a matter of law and impose
       an illegal sentence by sentencing [A]ppellant on both attempted
       murder and aggravated assault, charges that merge for
       sentencing purposes?

             3. On the offense of burglary, did not the [trial] court
       violate the Sentencing Code by sentencing [A]ppellant to the
       statutory maximum sentence of ten to twenty years without
       calculating the offense gravity score or the sentencing guidelines
       and by sentencing above the aggravated range of the guidelines
       without stating any contemporaneous reasons for the
       deviations?

             4. On the offense of simple assault, did not the [trial] court
       violate the Sentencing Code by sentencing [A]ppellant to the
       statutory maximum sentence of one to two years without
       calculating the offense gravity score of the sentencing
       guidelines?

              5. For the violation of the Uniform Firearms Act, 18 Pa.C.S.
       § 6105, should not this matter be remanded for the correction of
       a clerical error in the sentencing order?
____________________________________________


2
  Appellant filed a timely statement and supplemental statement of errors
complained of on appeal.        See Pa.R.A.P. 1925(b).    The trial court
subsequently issued an opinion. See Pa.R.A.P. 1925(a).



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(Appellant’s Brief, at 3-4).

      In his first issue, Appellant claims that his guilty plea was not knowing,

intelligent, and voluntary. Specifically, he claims that the trial court coerced

him into pleading guilty.       (See Appellant’s Brief, at 19-26).    However,

Appellant has waived this claim.

       This Court has stated:

             Settled Pennsylvania law makes clear that by entering a
      guilty plea, the defendant waives his right to challenge on direct
      appeal all nonjurisdictional defects except the legality of the
      sentence and the validity of the plea.

                  Indeed, a defendant routinely waives a
            plethora of constitutional rights by pleading guilty,
            including the right to a jury trial by his peers, the
            right to have the Commonwealth prove his guilt
            beyond a reasonable doubt, and his right to confront
            any witnesses against him.            Furthermore, a
            defendant is permitted to waive fundamental
            constitutional protections in situations involving far
            less protection of the defendant than that presented
            herein.

            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. Failure to employ either measure results in waiver.
      Historically, Pennsylvania courts adhere to this waiver principle
      because [i]t is for the court which accepted the plea to consider
      and correct, in the first instance, any error which may have been
      committed. Commonwealth v. Roberts, 237 Pa.Super. 336,
      352 A.2d 140, 141 (1975) (holding that common and previously
      condoned mistake of attacking guilty plea on direct appeal
      without first filing petition to withdraw plea with trial court is
      procedural error resulting in waiver; stating, “(t)he swift and
      orderly administration of criminal justice requires that lower
      courts be given the opportunity to rectify their errors before they
      are considered on appeal”; “Strict adherence to this procedure


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     could, indeed, preclude an otherwise costly, time consuming,
     and unnecessary appeal to this court”).

            Likewise:

                   Normally, issues not preserved in the trial
            court may not be pursued before this Court.
            Pa.R.A.P. 302(a).       For example, a request to
            withdraw a guilty plea on the grounds that it was
            involuntary is one of the claims that must be raised
            by motion in the trial court in order to be reviewed
            on direct appeal. Similarly, challenges to a court’s
            sentencing discretion must be raised during
            sentencing or in a post-sentence motion in order for
            this Court to consider granting allowance of appeal.
            Moreover, for any claim that was required to be
            preserved, this Court cannot review a legal theory in
            support of that claim unless that particular legal
            theory was presented to the trial court. Thus, even
            if an appellant did seek to withdraw pleas or to
            attack the discretionary aspects of sentencing in the
            trial court, the appellant cannot support those claims
            in this Court by advancing legal arguments different
            than the ones that were made when the claims were
            preserved.

     Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super.
     2008), appeal denied, 601 Pa. 696, 972 A.2d 521 (2009).

           Further, 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. Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013),

appeal denied, 87 A.3d 319 (Pa. 2014) (some citations and quotation marks

omitted).

     Here, Appellant did not preserve his challenge to the voluntariness of

his guilty plea by either objecting during the plea colloquy or filing a post-

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sentence motion to withdraw the plea.            See Pa.R.Crim.P. 720(B)(1)(a)(i).

Accordingly, we decline to review Appellant’s challenge to the validity of his

plea.3 See Lincoln, supra at 609-10. Appellant has waived his first issue.

       In his second issue, Appellant claims that his sentence is illegal

because the trial court sentenced him on both attempted murder and

aggravated assault, charges that he              claims merge for    purposes    of

sentencing. (See Appellant’s Brief, at 27-29). While Appellant asks that we

vacate his sentence for aggravated assault, he does not ask that we remand

the matter for resentencing. (See id. at 29).

       In its brief, the Commonwealth agrees that the sentence is illegal

because aggravated assault should have merged with attempted murder for

purposes of sentencing.            (See Commonwealth’s Brief, at 8).            The

____________________________________________


3
  In his reply brief, Appellant acknowledges that “ordinarily” a challenge to
the voluntariness of a guilty plea must be raised in the trial court.
(Appellant’s Reply Brief, at 3). However, he claims, in reliance on this
Court’s decisions in Commonwealth v. Moore, 528 A.2d 1364, 1366 (Pa.
Super. 1987) and Commonwealth v. Faust, 471 A.2d 1263, 1266 (Pa.
Super. 1984), that “extraordinary circumstances” exist which necessitate
this Court’s review of his claim. (Id. at 3-4). We disagree. Both Moore
and Faust are inapposite; they merely note that where an appellant claimed
that he was prevented from attempting to withdraw his guilty plea at the
trial court level because of ineffectiveness of counsel, this court could hear
the merit of the claim on direct appeal. See Moore, supra at 1366; Faust,
supra at 1266. Here, Appellant does not claim he received ineffective
assistance of counsel below, and provides no explanation whatsoever for his
failure to attempt to withdraw his guilty plea during the approximately two-
month period between his guilty plea and his initial sentencing, the
approximately one week period between the initial sentencing and
resentencing, or by raising it in his post-sentence motion.



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Commonwealth states that a resentencing is unnecessary because “the

sentence for aggravated assault was concurrent and thus had no impact on

the sentencing scheme.” (Id.) (citation omitted).

     Both parties agree that the trial court confused the facts underlying

Appellant’s plea to simple assault and aggravated assault, erroneously

believing that the aggravated assault charge arose out of Appellant’s

resisting arrest and injuring one of the police officers. (See id. at 8 n. 2;

Appellant’s Brief, at 28-29). Rather, both parties agree and cite to portions

of the record that demonstrate that the aggravated assault charge arose out

of the same set of facts as the attempted murder charge, namely Appellant’s

firing a gun at the victim, while the simple assault charge arose out of the

separate fracas with the police. (See id. at 8 n. 2; id. at 28-29). We agree.

     “A claim that convictions merge for sentencing is a question of law;

therefore, our standard of review is de novo and our scope of review is

plenary.”   Commonwealth v. Kimmel, 125 A.3d 1272, 1275 (Pa. Super.

2015) (citation omitted). As both parties state (see Appellant’s Brief, at 27-

28; Commonwealth’s Brief at 8), it is long settled that aggravated assault is

a lesser included offense of attempted murder when it arises from a single

criminal act. See Commonwealth v. Anderson, 650 A.2d 20, 23-24 (Pa.

1994), decision modified on denial of reargument, 653 A.2d 615 (Pa. 1994).

     Therefore, for the reasons discussed above, we vacate the March 26,

2014 judgment of sentence for Appellant’s conviction for aggravated assault,


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18 Pa.C.S.A. § 2702(a)(1).            Despite the trial court’s error in sentencing

appellant for aggravated assault, we believe a remand for resentencing is

not necessary.       The court sentenced Appellant to a concurrent term of

incarceration for attempted murder and aggravated assault.                   Under these

circumstances, it is clear that a remand for resentencing would not result in

any change of sentence, so none is necessary. See Commonwealth v.

Thur, 906 A.2d 552, 569-70 (Pa. Super. 2006), appeal denied, 946 A.2d

687 (Pa. 2008).

       In his third and fourth issues, Appellant challenges the discretionary

aspects of sentence.4 (See Appellant’s Brief, at 30-35). The right to appeal

the   discretionary     aspects       of   a    sentence   is    not   absolute.     See

Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004), appeal

denied, 860 A.2d 122 (Pa. 2004).                 When an appellant challenges the

discretionary aspects of the sentence imposed, he must present “a

substantial    question     as   to    the     appropriateness    of   the   sentence[.]”

Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003)

(citations omitted).      An appellant must, pursuant to Pennsylvania Rule of

Appellate Procedure 2119(f), articulate “a colorable argument that the

sentence violates a particular provision of the Sentencing Code or is contrary

____________________________________________


4
  We note that Appellant preserved his discretionary aspects of sentence
claim by filing a timely post-sentence motion for reconsideration of
sentence. See McAfee, infra at 275.



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to     the   fundamental       norms     underlying   the   sentencing     scheme.”

Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super. 2005)

(en banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation omitted). If

an appellant’s Rule 2119(f) statement meets these prerequisites, we have

found that a substantial question exists. See Commonwealth v. Goggins,

748 A.2d 721, 727 (Pa. Super. 2000) (en banc), appeal denied, 759 A.2d

920 (Pa. 2000).       “Our inquiry must focus on the reasons for which the

appeal is sought, in contrast to the facts underlying the appeal, which are

necessary only to decide the appeal on the merits.”             Id. (emphases in

original).

        Here, Appellant has included a Rule 2119(f) statement in his brief.

(See Appellant’s Brief, at 15-18). It states that the sentencing court failed

to calculate the offense gravity score and sentencing guidelines for the

offenses of aggravated assault,5 burglary, and simple assault; and failed to

consider the guidelines ranges in imposing those sentences.              (See id. at

16).    Further, Appellant claims that the sentencing court failed to state

sufficient reasons on the record for imposing a sentence outside the range of

the guidelines. (See id. at 17). We disagree.



____________________________________________


5
   Because we have vacated the judgment of sentence for aggravated
assault, we need not consider Appellant’s contentions with respect to the
discretionary aspects of that sentence.



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      Appellant first claims that the trial court failed to consider the offense

gravity and guidelines ranges for burglary and simple assault. A claim that

the sentencing court failed to consider the sentencing guidelines raises a

substantial question. See Commonwealth v. Twitty, 876 A.2d 433, 438

(Pa. Super. 2005), appeal denied, 892 A.2d 823 (Pa. 2005). Therefore, we

will address the merits of Appellant’s claim.

      Our standard of review is settled.

              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. In this context, an
      abuse of discretion is not shown merely by 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.

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015),

appeal denied, 125 A.3d 1198 (Pa. 2015) (citation omitted).

      In the instant matter, the sentencing court had the benefit of a Pre-

Sentence Investigation Report. We have stated that:

             [w]hen imposing a sentence, a court is required to
      consider the particular circumstances of the offense and the
      character of the defendant. . . . Where the sentencing court had
      the benefit of a [PSI], we can assume the sentencing court was
      aware of relevant information regarding the defendant’s
      character and weighed those considerations along with
      mitigating statutory factors.

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010)

(quotation marks and citations omitted). Here, the sentencing court stated




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that it had reviewed the PSI, as well as the mental health evaluation. (See

N.T. Sentencing, 3/18/14, at 4-5, 9-10, 19).

      In Commonwealth v. Rodda, 723 A.2d 212 (Pa. Super. 1999) (en

banc), this Court held that, when the trial court sentences outside the

guidelines, the court “need not recite the numeric ranges of sentences within

the guidelines so long as the record demonstrates the court’s recognition of

the applicable sentencing range and the deviation of sentence from that

range.”   Id. at 213.       In so doing, we noted that this Court has generally

vacated sentences in those instances where the record suggested that,

although the trial court considered the guidelines, it “applied an incorrect

sentence based on a misconception of the applicable sentencing range.” Id.

at 215.   We further noted that, “where the record has reflected that the

court acted on a sound understanding of the sentencing range and imposed

sentence accurately, we have affirmed the judgment of sentence even in the

absence of a guidelines recitation.” Id. at 216.

      Appellant here has not alleged that the sentencing court misconceived

or in other ways erroneously applied the sentencing guidelines.             (See

Appellant’s   Brief,   at     30-35).     Although,   he   attempts   to   argue,

unconvincingly, that he is not, in actuality, claiming the sentence is not valid

because the sentencing court did not say the “magic words;” that is, in fact,

the essence of his argument. (See id. at 31; see id at 30-35). This is the

very theory that we rejected in Rodda.


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     As discussed above, the sentencing court reviewed Appellant’s prior

record score, the pre-sentence investigation report, the mental health

evaluation and the Commonwealths’ sentencing memorandum.           (See N.T.

Sentencing, 3/18/14, at 4-5, 9-10, 19).      Further, there was extensive

argument at sentencing regarding the general, aggregate guideline ranges.

(See id. at 9-16). Thus, it was evident at the sentencing hearing, that all

parties, including Appellant, focused on the aggregate sentence, rather than

the individual guideline ranges for burglary and simple assault.   (See id.).

We have thoroughly reviewed the sentencing transcript and find the

sentencing court understood the sentencing guidelines, considered them,

and indicated its awareness of the offense gravity scores and guidelines by

choosing to impose the statutory maximum sentence for burglary and simple

assault while declining to do so for attempted murder. (See id. at 40-42).

This is all that is required under Rodda. Appellant’s claim lacks merit. See

Commonwealth v. Griffin, 804 A.2d 1, 8 (Pa. Super. 2002), appeal

denied, 868 A.2d 1198 (Pa. 2005), cert. denied, 545 U.S. 1148 (2005)

(affirming judgment of sentence where court had reviewed PSI and

demonstrated that it considered sentencing guidelines and chose to depart

from them even though court did not enunciate specific guideline ranges).

     Appellant next claims that the sentencing court did not sufficiently

state its reasons for the sentence.    This claim also raises a substantial




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question and we will therefore address the merits of this claim. See Rodda,

supra at 214.

      Our review of the record belies the claim that the sentencing court

failed to place sufficient reasons for the sentence on the record.        Prior to

announcing the sentence, in a lengthy statement, the sentencing court

noted: (1) utter lack of mitigating factors with the exception of Appellant’s

troubled   childhood;   (2)   the   multiple   prior   unsuccessful   attempts   to

rehabilitate Appellant; and (3) that the crime took place within four months

of Appellant being released from supervision for a similar offense. (See N.T.

Sentencing, 3/18/14, at 40-42). Further, as discussed above the sentencing

court had previously indicated that it considered the PSI and Appellant’s

mental health evaluation. (See id. at 4-5, 9-10, 19). Thus, the sentencing

court adequately stated its reasons for sentencing Appellant to the statutory

maximum, and we find that the record substantiates the trial court’s

sentencing determinations. See Commonwealth v. Walls, 926 A.2d 957,

961-66 (Pa. 2007) (so long as the trial court imposed individualized

sentence that was reasonable there is no abuse of discretion); see also

Commonwealth v. Lawson, 650 A.2d 876, 882 (Pa. Super. 1994), appeal

denied, 655 A.2d 985 (Pa. 1995) (trial court did not abuse its discretion in

sentencing outside guidelines where Appellant had lengthy criminal history,

did not respond well to probation or parole, and was unlikely to be

rehabilitated). Appellant’s third and fourth claims lack merit.


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        In his fifth and final claim, Appellant contends that this Court needs

to remand this matter to correct an alleged error in the sentencing order.

(See Appellant’s Brief, at 36-37). Appellant did not raise this claim in either

his Rule 1925(b) statement or his supplemental Rule 1925(b) statement.

(See   Statement    of   Errors   Complained     of   on   Appeal,   10/30/14,   at

unnumbered pages 1-3; Supplemental Statement of Errors Complained of on

Appeal, 1/21/15, at unnumbered pages 1-4).                 As amended in 2007,

Pennsylvania Rule of Appellate Procedure 1925 provides that issues that are

not included in the Rule 1925(b) statement or raised in accordance with Rule

1925(b)(4)    are   waived.       See    Pa.R.A.P.    1925(b)(4)(vii);   see   also

Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998), superseded by

rule on other grounds as stated in Commonwealth v. Burton, 973 A.2d

428, 431 (Pa. Super. 2009). Accordingly, we find that because Appellant did

not raise this issue in his Rule 1925(b) statements, he waived this claim.

       Accordingly, for the reasons discuss above we affirm the judgment of

sentence in part and vacate the judgment of sentence for aggravated

assault.

       Judgment of sentence AFFIRMED in part and VACATED in part.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/2/2016




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