J-S26007-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JOSEPH REED,

Appellant No. 1122 EDA 2013

Appeal from the Judgment of Sentence Entered March 22, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000173-2012 CP-51-CR-0004312-2010

BEFORE: BENDER, P.J.E., SHOGAN, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 10, 2014

Appellant, Joseph Reed, appeals from the judgment of sentence of five to ten years’ incarceration. On appeal, Appellant challenges the voluntariness of his plea, as well as the discretionary aspects of his sentence. After careful review, we affirm.

On March 22, 2013, Appellant entered pleas of nolo contendere in two separate cases to two counts each of aggravated assault and possessing an instrument of crime. At Appellant’s plea hearing, the Commonwealth stated that the following facts would have been established at trial:

On February 13, 2010 Complainant resided with her minor children at 2031 Beyer Avenue, Philadelphia, PA. Appellant, ______

* Former Justice specially assigned to the Superior Court. J-S26007-14

Complainant's former boyfriend, sent Complainant Renee Marini a text message saying that he was coming to her apartment to blow it up. Marini was preparing to leave the apartment with her baby and was in her bath[]room when Appellant entered her apartment without permission, barged into the bathroom, and punched Complainant in the face multiple times. Appellant threatened to cut Complainant from her vagina to her throat, and to cut her face off. Appellant told Complainant that he would have her buried in places that no one knew about and that she would never be found. He also threatened their two year old son, who was screaming and crying while witnessing this incident.

Appellant retrieved a knife from the kitchen, threw Complainant to the floor, threatening that he was going to slice Complainant's throat first, then the baby's, and then his own. For four hours Appellant held Complainant in the apartment against her will.

Complainant's older daughter called Complainant for several hours without success and became concerned. Eventually Appellant answered the cell phone and permitted Complainant to speak after which her daughter [] called police. Appellant fled.

On September 18, 2011[,] Complainant Carrie DeVenuto and Appellant[,] who had been in a romantic relationship for six months[,] were engaged in an argument while en route to 8117 Large Street, Philadelphia, PA[,] where they lived. Appellant stopped the vehicle in a parking lot located at 8200 Roosevelt Boulevard, Philadelphia, PA, where he wrapped the car's seat belt around Complainant's neck, pulling her towards the seat and then he released her. Upon arriving home, Appellant choked and twisted [] [C]omplainant's neck, threatening to snap it. He also pulled her by her hair, slammed her head on a table, put a knife to her forehead, threw a candle at her back, twisted a pillow case around her neck, and told her that he was going to kill her. When Complainant was able to run out of the house Appellant followed her and tried to pull her back inside, unsuccessfully. Complainant sustained multiple injuries to the face and extremities.

Trial Court Opinion (TCO), 8/9/13, at 2 – 3 (citations to the record omitted).

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On March 22, 2013, Appellant was sentenced to an aggregate term of five to ten years’ incarceration, and a concurrent term of five years’ probation. He filed a timely notice of appeal, as well as a timely concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant now presents the following questions for our review:

I. DID [] THE SENTENCING COURT ERR AS A MATTER OF LAW, ABUSE ITS DISCRETION, AND VIOLATE GENERAL SENTENCING PRINCIPLES WHEN [IT] SENTENCED APPELLANT TO TWO AND ONE HALF [] TO FIVE [] YEARS OF INCARCERATION [] FOLLOWED BY A CONSECUTIVE TERM OF TWO AND ONE HALF [] TO FIVE [] YEARS OF INCARCERATION [] FOLLOWED BY FIVE [] YEARS OF PROBATION … AFTER APPELLANT PLED NOLO CONTENDERE TO TWO COUNTS OF AGGRAVATED ASSAULT … AND POSSESSION OF AN INSTRUMENT OF CRIME … ?[1]

II. WAS APPELLANT’S PLEA OF NOLO CONTENDERE NOT KNOWING, VOLUNTARY, AND WILLFUL?

Appellant’s brief at 4.

Before turning to the merits of Appellant’s briefed arguments, we note that the Commonwealth has argued that Appellant’s claims were not raised in the trial court. Commonwealth’s brief at 6 – 7; 14 – 15. We agree.

Appellant filed a “Petition for Withdrawal of Nolo Contendere Plea” and a “Petition for Reconsideration of Sentence” on March 25, 2013. In the former, Appellant moved to withdraw his plea because he had “maintained

______

1 For the sake of clarity, citations and clear typographical errors have been omitted.

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‘prejudice on the order of manifest injustice.’” Motion to Withdraw Plea,

3/25/13, at 2. Appellant did not challenge his plea on the grounds that it was involuntary because he was not informed that he could be sentenced to consecutive terms of incarceration, as he argues herein. Moreover, no objection was made on this basis at the time of Appellant’s sentencing. In his “Petition for Reconsideration of Sentence,” Appellant moved for reconsideration because his incarceration would be “an extreme hardship, both mentally and physically” on himself and his family. Motion to

Reconsider Sentence, 3/25/13, at 1. Appellant did not challenge the imposition of consecutive sentences in this motion, nor did he raise an objection on this basis at sentencing. Accordingly, Appellant’s issues were not raised in the trial court, and are waived, as this Court may not address issues raised for the first time on appeal. See Pa.R.A.P. 302(a).

Moreover, Appellant’s boilerplate Rule 1925(b) statement fails to preserve the issues he now attempts to raise before this Court. The precise issues raised in Appellant’s 1925(b) statement were “[t]hat the sentence of

2 ½ to 5 years of incarceration, followed by 5 years of probation, for convictions of [a]ggravated [a]ssault and [p]oss[essing] [i]nstruments of

[c]rime was excessive,” and “[t]hat Appellant’s [n]olo [c]ontendere [p]lea was neither knowingly nor voluntarily made.” Rule 1925(b) Statement,

5/10/13, at 1 (internal citations omitted).

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We note that Appellant failed to state why his sentence was excessive, or why his plea was involuntary. This Court has stated that

[a]n appellant's concise statement must properly specify the error to be addressed on appeal. In other words, the Rule 1925(b) statement must be “specific enough for the trial court to identify and address the issue [an appellant] wishe[s] to raise on appeal.” “[A] [c]oncise [s]tatement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no [c]oncise [s]tatement at all.” The court's review and legal analysis can be fatally impaired when the court has to guess at the issues raised. Thus, if a concise statement is too vague, the court may find waiver.

Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super. 2011) (internal citations omitted). Accordingly, we conclude that this issue as raised in

Appellant’s Rule 1925(b) is waived for vagueness. See Hansley, supra.

Even assuming that Appellant had properly preserved his claims, however, he would not be entitled to relief, as these claims are meritless.

In the instant case, the trial court informed Appellant of “the maximum penalties that you face, which as to each case would be a combined total of 15 to 35 years.” N.T. Guilty Plea, 3/29/12, at 8 – 9

(emphasis added). Moreover, Appellant filled out two separate plea colloquies, and on each colloquy, he was informed that he faced a potential sentence of incarceration of ten to twenty years for the crime of aggravated assault. Written Nolo Contendere Plea Colloquies, 3/29/12, at 1. Appellant signed both colloquies. Id. Appellant was repeatedly informed that he was subject to being sentenced at each case.

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Appellant was also informed, by both written and oral colloquies, of the statutory maximum of thirty years’ incarceration at each case. Appellant received an aggregate sentence of five to ten years of incarceration. Our

Supreme Court has declined to permit the withdrawal of pleas in such circumstances, concluding that a plea is voluntary where an Appellant is “not sentenced to a term of imprisonment that exceeded his expectations of imprisonment so as to make his plea involuntary or unknowing.”

Commonwealth v. Carter, 656 A.2d 463, 466 (Pa. 1995). In Carter, the appellant “was advised that on each count of burglary he risked a term of imprisonment of up to twenty years. However, [A]ppellant's total prison sentence failed to meet even the maximum permissible sentence for a single count of burglary.” Id. As such, the Supreme Court concluded he was not entitled to withdraw his plea. The facts of Carter are indistinguishable from the instant case, and so Appellant’s claim that this his plea was involuntary is meritless.

We likewise conclude that Appellant’s sentencing claim would be without merit. Initially, we note that there is “no absolute right to appellate review of the discretionary aspects of a sentence.” Commonwealth v.

Mouzon, 812 A.2d 617, 621 (Pa. 2002). An appellant must present a

“substantial question” to this Court for review by submission of a statement as required by Pa.R.A.P. 2119(f). See id. Rule 2119(f) states that an appellant must include in his brief “a concise statement of the reasons relied

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upon for allowance of appeal with respect to the discretionary aspects of the sentence.” Pa.R.A.P. 2119(f).

[T]he Rule 2119(f) statement must specify where the sentence falls in relation to the sentencing guidelines and what particular provision of the Code is violated (e.g., the sentence is outside the guidelines and the court did not offer any reasons either on the record or in writing, or double-counted factors already considered). Similarly, the Rule 2119(f) statement must specify what fundamental norm the sentence violates and the manner in which it violates that norm (e.g., the sentence is unreasonable or the result of prejudice because it is 500 percent greater than the extreme end of the aggravated range). If the Rule 2119(f) statement meets these requirements, we can decide whether a substantial question exists.

Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000).

“Generally, ‘in order to establish a substantial question, appellant must show actions by the sentencing court inconsistent with the Sentencing Code or contrary to the fundamental norms underlying the sentencing process.’”

Commonwealth v. Sims, 728 A.2d 357, 359 (Pa. Super. 1999) (quoting

Commonwealth v. Gaddis, 639 A.2d 462, 469 (Pa. Super. 1994)).

Appellant’s Rule 2119(f) statement, in its entirety, is as follows:

In its imposition of consecutive sentences, the Trial Court did not properly consider the general sentencing guidelines provided by the legislature of Pennsylvania. The Trial Court sentenced Appellant based solely on the seriousness of the offenses and failed to consider all relevant factors, including the PSI and the testimony of Appellant's witnesses. The sentence imposed is not consistent with the gravity of the offense as it relates to the impact on the life of the victim and the community, as well as the rehabilitative needs of Appellant. Furthermore, Appellant's sentence is manifestly excessive in that it is grossly disproportionate to his crime, particularly in light of the facts surrounding the criminal episode and his background.

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In addition, the sentencing judge failed to provide adequate reasons on the record for the sentence.

Appellant’s brief at 8. We note that the statement contains no citations to authority. In addition, two of Appellant’s contentions are merely bald claims of excessiveness. Appellant contends that the sentence is inconsistent with the gravity of the offense, and that the sentence is manifestly excessive.

Neither of these claims raises a substantial question for our review. See

Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002) (bald claims of excessiveness do not raise a substantial question).

However, a claim that a trial court failed to place its reasons for a sentence on the record is reviewable by this Court. Commonwealth v.

Antidormi, 84 A.3d 736, 760–761 (Pa. Super. 2014). See also 18 Pa.C.S.

§ 9721(b) (“In every case in which the court imposes a sentence for a felony or misdemeanor … the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed.”) Likewise, a claim that a court

“sentenced Appellant based solely on the seriousness of the offenses and failed to consider all relevant factors, including the PSI and the testimony of

Appellant's witnesses” raises a substantial question for our review. See

Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (holding reviewable the question of “[w]hether the sentencing [c]ourt erred in disregarding factors mandated under the Sentencing Code, such as rehabilitation and the nature and circumstances of the offenses”).

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Appellant claims in his briefed argument that the trial court failed to adequately consider mitigating evidence when fashioning his sentence, but this claim is belied by the record. The court heard the extensive sworn testimony of Appellant’s mother, and Appellant’s wife, regarding his relationship with his family. The court also heard testimony from Appellant’s two victims. Appellant spoke on his own behalf regarding his employment and his family. Prior to imposing sentence, the trial judge “considered the

Sentencing Guidelines, the victims[’] impact statements, and the arguments of counsel,” as well as Appellant’s allocution. TCO at 4. Significantly, the trial judge also had the opportunity to observe Appellant’s demeanor throughout the proceedings. The trial judge noted on the record, “I also saw the anger seething when [the victims] gave their testimony. You were ready to pounce at them.” N.T. Sentencing, 3/22/13, 55. As noted by the trial court:

It is well settled that sentencing is a matter vested in the sound discretion of the sentencing judge and that a sentence will not be disturbed on appeal absent a manifest abuse of discretion. Commonwealth v. Reynolds, 835 A.2d 720 (Pa. Super. 2003). See also, Commonwealth v. Gould, 912 A.2d 869 (Pa. Super. 2006). In Reynolds, the Superior Court of Pennsylvania elucidated that:

"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. An abuse of discretion is more than just an error in judgment and, on appeal, the trial court will not in found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, bias, or ill-will…[.]”

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TCO at 3 (citing Reynolds, 835 A.2d at 733-734). Based on this record, we would conclude the trial court’s sentence is not a manifest abuse of discretion, and we would not disturb the trial court’s discretion, had

Appellant preserved this claim for our review.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/10/2014

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