J-S17043-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                       v.

NATHAN TERRY,

                            Appellant               No. 3006 EDA 2017


           Appeal from the Judgment of Sentence, August 18, 2017,
            in the Court of Common Pleas of Montgomery County,
             Criminal Division at No(s): CP-46-CR-0005665-2016


BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                           FILED MAY 14, 2018

        Nathan Terry appeals from the judgment of sentence, imposed after a

bench trial, where he was convicted of aggravated assault and related

offenses.1 After careful review, we affirm.

        Terry was arrested on June 21, 2016, after attacking and injuring his

girlfriend.   The case was scheduled for trial on February 2, 2017.    Before

trial began, Terry signed a form, waiving his right to a jury trial.     This

document informed Terry of all the “essential ingredients” of a jury trial.

After Terry signed this waiver, but before the bench trial started, the trial

court conducted an oral jury waiver colloquy during which the trial judge

asked the assistant district attorney what the standard sentencing guidelines
____________________________________________


1   18 Pa.C.S.A. § 2702.
J-S17043-18



were for aggravated assault.       The district attorney responded that the

standard range was thirty (30) to forty-two (42) months. Notably, the court

mentioned that aggravated assault is a first-degree felony, which carries a

maximum sentence of ten (10) to twenty (20) years of imprisonment, and

cautioned Terry that he could receive this statutory maximum if convicted.

      The trial court ultimately accepted Terry’s waiver and the case

proceeded to a non-jury trial. Terry was found guilty of aggravated assault.

At sentencing, as a result of the Probation Department discovering Terry’s

out of state convictions, he was subject to enhanced sentencing of fifty-four

(54) to seventy-two (72) months imprisonment.          The court imposed a

sentence in accordance with these increased sentencing guidelines of five (5)

to ten (10) years of imprisonment.

      On appeal, Terry raises one issue:

         Did the trial court err by not finding [Terry] did not
         knowingly, intelligently or voluntarily waive his right to a
         jury trial when he was erroneously informed by the by the
         assistant district attorney during the waiver colloquy that
         the sentencing guidelines for the most serious offense for
         which he was convicted were significantly lower than the
         correct guidelines which were imposed by the court at
         sentencing?

Terry’s Brief at 2 (excess capitalization omitted).

      We employ an abuse of discretion standard when we review a trial

court’s decision that a jury waiver was knowingly, intelligently, and

voluntarily made. Commonwealth v. Byng, 528 A.2d 983, 985 (Pa. Super.

1987).

                                      -2-
J-S17043-18


         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. In more expansive
         terms, an abuse of discretion may not be found merely
         because an appellate court might have reached a different
         conclusion,     but   requires    a    result   of   manifest
         unreasonableness, or partiality, prejudice, bias, or ill-will,
         or such lack of support so as to be clearly erroneous.

Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. Super. 2004).

      The Commonwealth argues that Terry waived this claim by failing to

preserve the issue for appeal.     Issues not raised in the lower court are

waived and cannot be raised for the first time on appeal. Pa.R.A.P. 302(a).

During the sentencing hearing, Terry’s counsel stated that he took issue with

the enhanced sentencing guidelines and requested that the standard

sentence, which the prosecutor advised the court was the applicable range

during the jury waiver colloquy, should be imposed. Defense counsel further

stated that it was under these lesser sentencing standards that Terry

“knowingly, intelligently and voluntarily entered” his jury waiver.

      According to the Commonwealth, this colloquy was a simple request

rather than a valid objection.    We disagree.    Further, the trial court also

qualified defense counsel’s exchange with the court as a proper objection.

The trial court analyzed the merits of Terry’s jury waiver claim, noting that

“[Terry] raised an objection at the sentencing hearing to the application of

the correct guidelines and requested the mis-stated be used.”         Trial Court

Opinion, 10/31/17, at 4. Under these circumstances, we conclude that Terry


                                     -3-
J-S17043-18



preserved a challenge to the validity of his jury waiver, and thus we can

decide the merits of the claim.

      We have previously held:      “The validity of a defendant’s jury waiver

can be compromised in certain contexts where a defendant is informed of a

range of sentences that is shorter than the sentence later imposed.”

Commonwealth v. Houck, 948 A.2d 780, 781 (Pa. 2008).                 However, a

defendant must show that he relied on the shorter sentencing guidelines

that were relayed to him in coming to his decision to waive a jury trial.

Houck, 948 A.2d at 781.

      We cannot presume Terry’s reliance. Id. at 788. The burden falls on

Terry to establish “that [his] understanding of the length of the potential

sentence was a material factor in making the decision to waive a jury trial.”

Id. at 787.      In his brief, Terry acknowledges the Houck precedent.

However, he complains that it is virtually impossible to prove that he relied

on the lesser sentence relayed to him by the prosecutor.

      Instead of offering proof to show that he relied on the lesser sentence,

Terry asserts that the change in his sentence, approximately a twenty-four

(24) to thirty (30) month increase, was “substantial and significant.” Terry’s

Brief at 9.   According to Terry, the fact that a “substantial and significant

change” occurred in his sentencing, should, by itself, invalidate his jury trial

waiver and afford him a new trial. Terry urges this Court to substitute his

‘‘substantial change rule’’ in place of his burden to establish his reliance.




                                      -4-
J-S17043-18



      Our Supreme Court has made clear that in instances where a

defendant receives a greater sentence than he initially was informed of, he

must show that he relied on the lesser sentencing standards when deciding

to waive his jury trial in order to invalidate an otherwise valid waiver. On

appeal, Terry essentially requests that this Court reconsider the standard of

proof set forth in Houck.            This claim necessarily fails, as we have no

authority    to    overrule    our   Supreme    Court.         See,     e.g.,    Preiser    v.

Rosenzweig, 614 A.2d 303, 306 (Pa. Super. 1992) (“as an intermediate

appellate court, we are not free to disregard the existing law of this

Commonwealth and the decisions of our Supreme Court”).

      We evaluate this case through the Houck guidelines promulgated by

our Supreme Court.         Terry fails to offer any evidence to suggest that he

relied on the sentencing guidelines that the prosecutor initially relayed

during the jury waiver colloquy.            The exchange regarding the wrong

sentencing        guidelines   occurred   between        the    trial    court     and     the

Commonwealth, and was not directed at Terry. Indeed, Terry concedes in

his brief that he “could not have possibly remembered how significant and

material the mistake was in his decision to waive his right to a jury trial.”

Terry’s Brief at 10.      Thus, by his own admission, Terry has failed to show

that his jury waiver was not knowingly, intelligently, or voluntarily made.

We therefore affirm Terry’s judgment of sentence.

      Judgment of sentence affirmed.




                                          -5-
J-S17043-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/14/18




                          -6-
