J-S53026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JULIO ANGEL BERNARD

                            Appellant                 No. 2487 EDA 2016


             Appeal from the Judgment of Sentence June 30, 2016
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0001274-2016
                            CP-39-CR-0001275-2016
                            CP-39-CR-0001276-2016


BEFORE: BENDER, P.J.E., OLSON, J. and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                        FILED SEPTEMBER 11, 2017

       Appellant, Julio Angel Bernard, appeals from the judgment of sentence

entered on June 30, 2016, as made final by the denial of his post-sentence

motion on July 12, 2016, following his guilty pleas to the charges of escape,

fleeing or attempting to elude police officer, and resisting arrest.1 We deny

Appellant’s petition for permission to appeal the discretionary aspects of his

sentence.2

       The trial court summarized the facts of this case as follows:
____________________________________________


1
   18 Pa.C.S.A. § 5121, 75 Pa.C.S.A. § 3733, and 18 Pa.C.S.A. § 5104,
respectively.
2
 “The right to appellate review of the discretionary aspects of a sentence is
not absolute, and must be considered a petition for permission to appeal.”
Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014).
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     On June 9, 2015, while an inmate and incarcerated in the Lehigh
     County Community Corrections Center, located in Lehigh County,
     Pennsylvania [] Appellant failed to return to the Corrections
     Center after being authorized for a two-hour leave from the
     center to pick up his personal property.

     On February 21, 2016, Officer Kenneth Stevens of the Whitehall
     Township Police Department was in the parking lot of the
     WalMart, located on MacArthur Road, Whitehall, Lehigh County,
     Pennsylvania. At that time, he spoke with a driver of a Chrysler
     minivan that was parked in the fire lane at WalMart. The van
     was driven by [] Appellant. [] Appellant moved his vehicle and
     started to drive away.     The officer observed [] Appellant’s
     vehicle operating at an unsafe speed through the parking lot and
     leave the lot quickly.

     Officer Stevens followed the vehicle as it headed towards
     MacArthur Road. As the same vehicle approached Sutler Drive
     and MacArthur Road, it encountered a red light. Officer Stevens
     observed the vehicle proceed without hesitation through the
     steady red light and watched as it turned left onto southbound
     MacArthur Road. The officer activated his emergency lights and
     sirens and attempted to stop the vehicle. The minivan did not
     stop and continued southbound on MacArthur Road at a high
     rate of speed.

     The officer observed his own speedometer, which indicated that
     he and the vehicle he was following were traveling in excess of
     80 miles [per] hour. The vehicle failed to stop at two more red
     lights. At the intersection of Mickley Road and North Sixth
     Street, Officer Stevens terminated his pursuit because []
     Appellant had left the officer’s jurisdiction and had entered the
     City of Allentown.

     As the vehicle entered the City of Allentown, Officer Brian Best of
     the Allentown Police Department noticed a light-colored blue
     minivan traveling southbound while being pursued by a marked
     Whitehall Police vehicle. Officer Best also heard communication
     from the county radio regarding the pursuit by Whitehall police
     of a Hispanic male driver. The officer followed the Whitehall
     Police vehicle and trailed the light colored van, observing the
     vehicle as [it] proceeded through a stoplight at Seventh and
     Greenleaf streets. The vehicle continued on Greenleaf Street

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      until it went in the wrong direction on Eighth Street, then
      westbound on Cedar Street, nearly striking several pedestrians.

      Officer Best lost sight of the blue van near the 1000 block of
      Cedar Street. Officer Zachary Bubnis of the Allentown Police
      Department located the van near the 300-block of Fourteenth
      Street and noticed a Hispanic male driver and a female walk into
      320 North Fourteenth Street, Apartment 1, Allentown, Lehigh
      County, Pennsylvania. The communication center advised the
      officers that the male driver, later identified as [] Appellant, had
      an active warrant for his arrest. Officers made contact with the
      tenants in the apartment. The tenants stated that [] Appellant
      was not inside but offered [to allow] the officers to check. The
      officers were able to locate [] Appellant under a bed near the
      kitchen area. They advised [] Appellant to show his hands.

      When [] Appellant got up from under the bed, he clenched both
      fists together. Again he was advised to show his hands, but []
      Appellant refused to comply. A struggle ensued. During the
      struggle, [] Appellant tried to grab one of the officer’s service
      weapons. After several minutes, officers were able to place []
      Appellant into custody.

Trial Court Opinion, 9/20/2016, at 3-5.

      On June 30, 2016, Appellant pled guilty to the three aforementioned

charges.   In exchange, the Commonwealth agreed to the imposition of

standard range consecutive sentences on two of the convictions, with the

final sentence running concurrently to the others. The trial court accepted

the agreement and imposed sentences of one to two years of incarceration

for escape, one to two years of imprisonment for fleeing or attempting to

elude police (to run consecutively to escape), and six months to two years’

incarceration for resisting arrest to run concurrently to the other two

convictions.   In sum, the trial court sentenced Appellant to an aggregate

term of two to four years’ imprisonment.



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       On July 8, 2016, Appellant filed a motion for reconsideration of his

sentence arguing that, although the trial court imposed a legal sentence

within the standard guideline range, he was entitled to a reduction of his

sentence to allow him to serve it in a county correctional facility or

treatment center, rather than in state prison.     Appellant also averred that

the trial court failed to consider his remorse and erroneously relied upon his

prior record score, which consisted of remote and non-violent offenses. The

trial court denied relief on July 12, 2016. This timely appeal resulted. 3

       On appeal, Appellant presents the following issues for our review:

       1. Whether [the trial c]ourt erred in imposing a harsh and
          excessive sentence and failed to impose a [c]ounty-served
          sentence rather than a [s]tate-served sentence. [Appellant]
          believes he was guaranteed a [c]ounty[-]served sentence as
          part of, or as an expectation of, his plea agreement, and that
          the [trial] court abused its discretion by failing to give that
          sentence.

       2. Whether the sentence, as imposed, was harsh and excessive
          [and] the [trial] court failed to set forth appropriate reasons
          for the length and nature of the sentence.

Appellant’s Brief at 6.


____________________________________________


3
  Appellant filed a notice of appeal on August 9, 2016, within 30 days of the
denial of his motion for reconsideration. See Pa.R.Crim.P 720(a)(2)(a); see
also Pa.R.A.P. 903(a). On August 16, 2016, the trial court issued an order
directing Appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied on September 6,
2016. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
September 20, 2016.




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        Appellant contends that his “sentence was excessively and unduly

harsh given [his] long-standing addiction,” and that county prison facilities

are better suited at dealing with his addiction. Id. at 9, 12-13. He avers

that the trial court failed to place its reasons on the record for the imposition

of his state prison sentence. Id. at 12. Appellant also implicitly challenges

the imposition of consecutive sentences. Id.

      Initially we note that Appellant concedes that “the court sentenced

within the sentencing guidelines under a negotiated guilty plea which

bound the court to do so[.]” Id. at 5 (emphasis added); see also id. at 9

(“[T]he sentencing court sentenced [] [A]ppellant within the guidelines and

in conformity with the negotiated plea agreement[.]”). “[A] guilty plea which

includes sentence negotiation ordinarily precludes a defendant from

contesting the validity of his or her sentence other than to argue that the

sentence is illegal or that the sentencing court did not have jurisdiction[.]”

Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa. Super. 2005)

(emphasis in original; citations omitted); see also Commonwealth v.

Dalberto, 648 A.2d 16, 21 (Pa. Super. 1994) (“[I]n a ‘negotiated’ plea

agreement, where a sentence of specific duration has been made part of a

plea bargain, it would clearly make a sham of the negotiated plea process

for courts to allow defendants to later challenge their sentence; this would,

in effect, give defendants a second bite at the sentencing process.”). Here,

all of the terms of Appellant’s negotiated plea agreement were set forth on

the record prior to the trial court accepting the plea.        See Trial Court

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Opinion, 9/20/2016, at 8, citing N.T., 6/30/2016, at 2-4. The trial court set

forth the standard guidelines for each offense prior to accepting Appellant’s

guilty plea. Appellant then agreed to standard range consecutive sentences

for escape and fleeing or attempting to elude police officer, with a standard

range sentence for resisting arrest to be served concurrently to the other

two convictions. Appellant agreed, on the record, that there were no other

promises made to him about sentencing other than those included in the

negotiated agreement.      Because the terms of Appellant’s plea agreement

were negotiated, he is now precluded from challenging the discretionary

aspects of his sentence.

      Appellant also claims “the [sentencing] guidelines themselves were

based on prior convictions all related to [Appellant’s] addiction and most of

which are of significant age thus creating guidelines that overrepresented

[Appellant’s] criminal proclivity.” Appellant’s Brief at 5.    However, prior to

accepting the plea, the Commonwealth set forth the grades of each of the

enumerated felonies, the offense gravity scores, the standard ranges for

each of the sentences, and Appellant’s prior record score of five.         N.T.,

6/30/2016, at 2-4. Appellant did not object to the use of “five” as his prior

record score in calculating the sentencing guidelines.        “The absence of a

contemporaneous objection below constitutes a waiver of appellant's current

claim.” Commonwealth v. Powell, 956 A.2d 406, 428, (Pa. 2008), citing

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.”). Moreover, Appellant did not

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raise this claim in his post-sentence motion as required to preserve a

discretionary aspect of sentencing issue.     See Commonwealth v. Zirkle,

107 A.3d 127, 132 (Pa. Super. 2014) (an appellant must demonstrate that

the issue was properly preserved at sentencing or in a motion to reconsider

to invoke this Court's jurisdiction when challenging the discretionary aspects

of a sentence). Further, Appellant failed to challenge the computation of his

prior record score in his Rule 1925(b) concise statement of errors

complained of on appeal.      Failure to raise issues specifically in a Rule

1925(b) concise statement also results in waiver. See Commonwealth v.

Melvin, 103 A.3d 1, 39 (Pa. Super. 2014).             Thus, we conclude that

Appellant failed to challenge the computation of his prior record score before

the trial court and he cannot do so for the first time on appeal. Accordingly,

Appellant waived his claim that the trial court failed to use his proper prior

record score in applying the sentencing guidelines.

      Because    Appellant   entered    a    negotiated    guilty   plea,   which

contemplated bargained-for sentences, he cannot challenge the trial court’s

discretion in imposing those sentences.       Moreover, Appellant waived his

current challenge to the computation of his prior record score. Hence, we

deny Appellant’s petition for permission to appeal.

      Petition for permission to appeal denied.           Judgment of sentence

affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/11/2017




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