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                                2019 PA Super 347


 COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 WILLIAM MOISES TORRES                    :
                                          :
                    Appellant             :    No. 1085 EDA 2019

               Appeal from the Order Entered March 14, 2019
               In the Court of Common Pleas of Lehigh County
            Criminal Division at No(s): CP-39-CR-0003055-2008


BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.

OPINION BY OTT, J.:                             FILED NOVEMBER 25, 2019

      William Moises Torres appeals, pro se, from the order of March 14, 2019,

which denied his “Motion to Modify Sentence Nunc Pro Tunc.”        On appeal,

Torres claims that the trial court abused its discretion in denying his motion.

After review, we affirm.

      On February 18, 2009, Torres entered a negotiated guilty plea to two

counts of murder in the third degree.         After receipt of a pre-sentence

investigation report, on March 26, 2009, in accordance with the terms of the

plea agreement, the trial court sentenced him to an aggregate term of 20 to

40 years’ imprisonment. Torres did not file a direct appeal.

      On January 29, 2010, Torres, acting pro se, filed a petition pursuant to

the Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. On March 30,
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2010, following appointment of counsel and counsel’s filing of an amended

PCRA petition, Torres withdrew his petition.

        On July 20, 2016, Torres, acting pro se, filed a second PCRA petition.

The PCRA court denied the petition on August 22, 2016. Torres did not file an

appeal.

        On July 10, 2018, Torres filed a motion for modification of relief. The

trial court denied that motion on July 13, 2018. Torres did not file an appeal.

        On March 13, 2019, Torres filed the instant motion.        The trial court

denied the motion on March 14, 2019. This timely appeal followed.1

        On appeal, Torres contends that he is entitled to modification of his

sentence, as scientifically, his brain was not fully developed when he

committed the murders2 and because of his excellent record in prison.

        Initially, we note Pennsylvania courts have consistently held, so long as

a pleading falls within the ambit of the PCRA, the court should treat any

pleading filed after the judgment of sentence is final as a PCRA petition. See

Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007), appeal




____________________________________________


1 On April 23, 2019, in response to the trial court’s order, Torres filed a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On April 24, 2019, the trial court filed an opinion adopting its March 14, 2019
opinion.

2   Torres was 20 years’ old at the time of the murders.


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denied, 944 A.2d 756 (Pa. 2008) (noting cases); see also 42 Pa.C.S.A.

§ 9542.

      However, we have held claims regarding the discretionary aspects of

sentence are not cognizable under the PCRA. See 42 Pa.C.S.A. § 9543(2)(vii).

A claim the trial court failed to consider mitigating circumstances is a challenge

to the discretionary aspects of sentence. See Commonwealth v. DiClaudio,

210 A.3d 1070, 1075-1076 (Pa. Super. 2019) (treating challenge to trial

court’s failure to consider mitigating factors as challenge to discretionary

aspects of sentence). In Commonwealth v. Wrecks, 934 A.2d 1287, 1289

(Pa. Super. 2007), this Court held the trial court correctly treated a petition

to modify sentence filed years after the imposition of sentence as an untimely

post-sentence motion rather than a PCRA.         See id.    Here, as in Wrecks,

Torres filed a motion to modify sentence many years after the imposition of

sentence, thus, his motion is an untimely post-sentence motion.

      Torres contends, however, extraordinary circumstances justify the late

filing of the motion, namely, the trial court failed to advise him of his appellate

and post-sentence rights as required by Pa.R.Crim.P. 704 and 720. Torres’

Brief, at 7; see also Commonwealth v. Patterson, 940 A.2d 493, 499-500

(Pa. Super. 2007) (finding trial court’s failure to comply with Pa.R.Crim.P. 720

constituted breakdown in court process which excused late filing of post-

sentence motion), appeal denied, 960 A.2d 838 (Pa 2008).            However, the

record belies this claim.


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       On February 18, 2009, Torres executed a Spanish-language written

guilty plea colloquy, which specifically informed him about the limitations on

his right to appeal. See Written Guilty Plea Colloquy, 2/18/2009, at pages 5-

7. Torres stated, on the record, he read and understood the written colloquy.

N.T. Guilty Plea Hearing, 2/18/2009, at 5. Moreover, immediately prior to

sentencing, Torres signed documents, written in Spanish, informing him of his

post-sentence rights.       Post-Sentence Colloquy, 3/26/2009, at unnumbered

pages 1-3. This claim does not merit relief.

       Thus, because Torres filed an untimely post-sentence motion and

because he has not demonstrated any breakdown in the court process

excusing the untimely filing, the trial court correctly dismissed it on that

basis.3 See Patterson, supra at 499-500. Accordingly, we affirm the denial

of his motion.

       Order affirmed.




____________________________________________


3 Even if Torres had timely filed his motion, he waived any discretionary
aspects of sentence claim by entering into a negotiated guilty plea. Generally,
a plea of guilty constitutes a waiver of all defects and defenses excepting the
voluntariness of the plea, the jurisdiction of the court and the legality of the
sentence. Commonwealth v. Stewart, 867 A.2d 589, 591 (Pa. Super.
2005). While this Court has ruled that an appellant may challenge the
discretionary aspects of sentence after pleading guilty without an agreement
to the terms of the sentence, appellants may not raise a discretionary aspects
of sentence claim regarding a negotiated sentence. Id.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/25/19




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