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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                    v.                      :
                                            :
ERIBERTO GONZALEZ,                          :           No. 203 EDA 2014
                                            :
                         Appellant          :


        Appeal from the Judgment of Sentence, November 19, 2013
             in the Court of Common Pleas of Lehigh County
            Criminal Division at No. CP-39-CR-0005179-2012


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND STABILE, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED DECEMBER 12, 2014

      Eriberto   Gonzalez    appeals    from    the    judgment   of   sentence   of

November 19, 2013, following a plea of nolo contendere to one count of

possession with intent to deliver (“PWID”) (heroin). We affirm.

      On September 9, 2012, at approximately 3:15 p.m., Officer David

Howells was on routine patrol when he observed a black Mercedes SUV.

(Notes of testimony, 11/19/13 at 11.) Officer Howells ran the license plate

number and discovered that the vehicle’s registration was suspended for

insurance cancellation.     (Id.)    Officer Howells executed a traffic stop and

approached the vehicle.      (Id.)    Officer Howells observed appellant in the

driver’s seat.   (Id.)   When he asked appellant for identification, appellant

produced a driver’s license with the name “Angel Cintron.” (Id. at 12.) It
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was clear to the officer that appellant was not the same man pictured on the

driver’s license. (Id.)

        At that time, Officer Howells asked appellant to step out of the vehicle.

(Id.)     Appellant consented to a search of his person, at which time

Officer Howells recovered a packet of synthetic marijuana in appellant’s

pocket. (Id.) During a subsequent inventory search of appellant’s vehicle,

Officer Howells found a black plastic bag filled with rice in the center console.

(Id.)     Inside the bag were nine bundles of heroin containing a total of

69 stamp bags of heroin.        (Id.)    When Officer Howells placed appellant

under arrest, he asked whether he used any drugs such as cocaine or

heroin.     (Id.)     Appellant denied using any drugs except for synthetic

marijuana. (Id. at 13.)

        On November 19, 2013, appellant entered a plea of nolo contendere

to count 1, PWID (heroin).              In exchange for appellant’s plea, the

Commonwealth agreed to withdraw the remaining charges including two

counts     of   possession,   possession   of   drug   paraphernalia,   and   false

identification.     In addition, the Commonwealth agreed to waive the 3-year

mandatory minimum sentence and cap appellant’s minimum sentence at the

bottom of the standard range of the sentencing guidelines, or 24 months.

(Id. at 3.)       Appellant was also RRRI eligible.       (Id.)1   There was no




1
  Recidivism Risk Reduction Incentive (“RRRI”) program, 61 Pa.C.S.A. § 4501
et seq.


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agreement as to the maximum sentence appellant could receive. (Id. at 6-

7.)

        The trial court accepted the plea and imposed a sentence of 24 months

to 7 years’ imprisonment.     (Id. at 21.)   Under RRRI, appellant would be

eligible for release on parole after 18 months.        (Id. at 22-23.)     On

December 2, 2013, appellant filed a post-sentence motion for modification of

sentence, requesting a sentence of 2 to 5 years’ imprisonment or, in the

alternative, to withdraw his plea.2      Appellant’s motion was denied on

December 18, 2013.       A timely notice of appeal was filed on January 14,

2014.     On January 15, 2014, appellant was ordered to file a concise

statement of errors complained of on appeal within 21 days pursuant to

Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A.        Appellant filed his Rule 1925(b)

statement on February 14, 2014, and the trial court has filed a Rule 1925(a)

opinion.3


2
  The 10th day following sentencing was Friday, November 29, 2013. As this
was the day after Thanksgiving, presumably the courthouse was closed. No one
suggests that appellant’s post-sentence motion was untimely and failed to toll
the appeal period. Therefore, we conclude that appellant’s post-sentence
motion filed the following Monday, December 2, 2013, was timely.         See
1 Pa.C.S.A. § 1908 (excluding weekends and holidays from the computation of
time).
3
  Appellant’s Rule 1925(b) statement was due on February 5, 2014. Therefore,
it was filed late. However, the trial court addressed the issues raised in its
Rule 1925(a) opinion and it is unnecessary to remand. See Commonwealth
v. Thompson, 39 A.3d 335, 340 (Pa.Super. 2012) (“When counsel has filed an
untimely Rule 1925(b) statement and the trial court has addressed those issues
we need not remand and may address the merits of the issues presented.”),
citing Commonwealth v. Burton, 973 A.2d 428, 433 (Pa.Super. 2009)
(en banc).


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      Appellant has presented the following issues for this court’s review:

            A.    Did the lower court err by denying
                  [appellant]’s request to withdraw his nolo
                  plea, post-sentence, as [appellant]’s plea was
                  not entered knowingly or voluntarily or that
                  [appellant] was innocent of the charge?

            B.    Whether the length of the maximum sentence
                  imposed by the court is manifestly excessive
                  given the totality of the circumstances,
                  [appellant]’s rehabilitative needs, and the
                  disproporti[o]nate reliance upon the need to
                  protect the community?

Appellant’s brief at 7 (capitalization omitted) (emphasis added).

      “Preliminarily, we note that in terms of its effect upon a case, a plea of

nolo contendere is treated the same as a guilty plea.” Commonwealth v.

Leidig, 850 A.2d 743, 745 (Pa.Super. 2004), citing Commonwealth v.

Miller, 748 A.2d 733, 735 (Pa.Super. 2000).

                   Our law is clear that, to be valid, a guilty plea
            must be knowingly, voluntarily and intelligently
            entered.      Commonwealth v. Shekerko, 432
            Pa.Super. 610, 639 A.2d 810, 813 (1994). There is
            no absolute right to withdraw a guilty plea, and the
            decision as to whether to allow a defendant to do so
            is a matter within the sound discretion of the trial
            court. Commonwealth v. Muhammad, 794 A.2d
            378, 382 (Pa.Super.2002). To withdraw a plea after
            sentencing, a defendant must make a showing of
            prejudice amounting to “manifest injustice.” Id.,
            794 A.2d at 383. “A plea rises to the level of
            manifest injustice when it was entered into
            involuntarily,   unknowingly,     or    unintelligently.”
            Commonwealth v. Ingold, 823 A.2d 917, 920
            (Pa.Super.2003). A defendant’s disappointment in
            the sentence imposed does not constitute “manifest
            injustice.” Muhammad, 794 A.2d at 383.



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                 A court accepting a defendant’s guilty plea is
           required to conduct an on-the-record inquiry during
           the plea colloquy. Ingold, 823 A.2d at 920. The
           colloquy must inquire into the following areas:

           (1)   Does the defendant understand the
                 nature of the charges to which he or she
                 is pleading guilty or nolo contendere?

           (2)   Is there a factual basis for the plea?

           (3)   Does the defendant understand that he
                 or she has the right to trial by jury?

           (4)   Does the defendant understand that he
                 or she is presumed innocent until found
                 guilty?

           (5)   Is   the    defendant    aware  of the
                 permissible range of sentences and/or
                 fines for the offenses charged?

           (6)   Is the defendant aware that the judge is
                 not bound by the terms of any plea
                 agreement tendered unless the judge
                 accepts such agreement?

           Id. at 920-21. Our law presumes that a defendant
           who enters a guilty plea was aware of what he was
           doing. Commonwealth v. Stork, 737 A.2d 789,
           790 (Pa.Super.1999).     He bears the burden of
           proving otherwise. Id.

Commonwealth v. Pollard, 832 A.2d 517, 522-523 (Pa.Super. 2003).

     Instantly, the trial court conducted a thorough, probing on-the-record

plea colloquy with appellant.    (Notes of testimony, 11/19/13 at 6-13.)

Appellant also completed a written plea colloquy which was explained to him

by his attorney. (Id. at 7.) Appellant was clearly informed that under the

terms of the plea agreement, his minimum sentence could be no greater


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than 2 years but that there was no agreement as to the maximum sentence

he could receive. (Id. at 6-7.) Appellant indicated he understood that the

maximum sentence was 30 years’ incarceration.             (Id. at 10.)    Appellant

stated that no one had coerced or threatened him to enter the plea, and

other than the plea agreement, no promises had been made to entice a plea.

(Id. at 9.)

      As the trial court states, it appears that appellant is simply

disappointed in his sentence.     (Trial court opinion, 3/12/14 at 5.)         This

conclusion is supported by appellant’s post-sentence motion, in which he

stated, “[Appellant] has indicated to his undersigned counsel that he is

dissatisfied with the above-referenced sentence and, if this Honorable Court

denies his Motion to Modify Sentence, has requested that the undersigned

counsel   request   the   withdrawal   of    his   plea   of   nolo   contendere.”

(Post-sentence motion, 12/2/13 at 5 ¶22; docket #28.)

              A showing of manifest injustice is required after
              imposition of sentence since, at this stage of the
              proceeding,    permitting     the  liberal standard
              enunciated in [the presentence setting] might
              encourage the entrance of a plea as a sentence
              testing device. We note that disappointment by a
              defendant in the sentence actually imposed does not
              represent manifest injustice.

Commonwealth v. Byrne, 833 A.2d 729, 737 (Pa.Super. 2003), quoting

Muhammad, 794 A.2d at 383. Appellant failed to demonstrate a manifest

injustice. To the contrary, the record shows that appellant entered his plea

knowingly, voluntarily, and intelligently. There is no merit here.


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      Next, appellant presents a challenge to the discretionary aspects of his

sentence, claiming that his sentence is manifestly excessive and disregards

his rehabilitative needs. Appellant concedes the sentence complied with the

express terms of the plea agreement and was within the standard range of

the guidelines, but argues that the maximum sentence of 7 years was

unjustified.

               A challenge to the discretionary aspects of
               sentencing is not automatically reviewable as a
               matter of right. Commonwealth v. Hunter, 768
               A.2d 1136 (Pa.Super.2001)[,] appeal denied, 568
               Pa. 695, 796 A.2d 979 (2001). When challenging
               the discretionary aspects of a sentence, an appellant
               must invoke the appellate court’s jurisdiction by
               including in his brief a separate concise statement
               demonstrating that there is a substantial question as
               to the appropriateness of the sentence under the
               Sentencing Code. Commonwealth v. Mouzon, 571
               Pa. 419, 812 A.2d 617 (2002); Commonwealth v.
               Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987);
               42 Pa.C.S.A. § 9781(b); Pa.R.A.P. 2119(f). “The
               requirement that an appellant separately set forth
               the reasons relied upon for allowance of appeal
               ‘furthers the purpose evident in the Sentencing Code
               as a whole of limiting any challenges to the trial
               court’s evaluation of the multitude of factors
               impinging on the sentencing decision to exceptional
               cases.’”     Commonwealth v. Williams, 386
               Pa.Super. 322, 562 A.2d 1385, 1387 (1989)
               (en banc) (emphasis in original).

Commonwealth v. McNear, 852 A.2d 401, 407-408 (Pa.Super. 2004).

               To demonstrate that a substantial question exists, “a
               party must articulate reasons why a particular
               sentence raises doubts that the trial court did not
               properly consider [the] general guidelines provided
               by the legislature.” Commonwealth v. Mouzon,
               571 Pa. 419, 812 A.2d 617, 622 (2002), quoting,


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              Commonwealth v. Koehler, 558 Pa. 334, 737 A.2d
              225, 244 (1999). In Mouzon, our Supreme Court
              held that allegations of an excessive sentence raise a
              substantial question where the defendant alleges
              that the sentence “violates the requirements and
              goals of the Code and of the application of the
              guidelines . . . .” Id. at 627. A bald allegation of
              excessiveness will not suffice. Id.

Commonwealth v. Fiascki, 886 A.2d 261, 263 (Pa.Super. 2005), appeal

denied, 897 A.2d 451 (Pa. 2006).

        Instantly,   appellant   has   complied    with    the   requirements   of

Rule 2119(f) by including such a statement in his brief. (Appellant’s brief at

10.) Therein, appellant contends that his sentence is “manifestly excessive,

disproportionate to the actions of [appellant] and his rehabilitative needs.”

(Id.)    Initially, we note that appellant’s sentence fell within the standard

range of the sentencing guidelines. See Commonwealth v. Maneval, 688

A.2d 1198, 1199-1200 (Pa.Super. 1997) (“Generally, if the sentence

imposed falls within the sentencing guidelines, no substantial question

exists.”), citing Commonwealth v. Johnson, 666 A.2d 690, 692 (Pa.Super.

1995).

        Appellant had a prior record score of 5, including prior drug offenses.

(Notes of testimony, 11/19/13 at 13-14.)          At the time he committed this

offense, appellant was on parole.        (Id. at 4-5.)    PWID carries an offense

gravity score of 7.      (Id. at 2-3.)    Appellant faced a maximum term of

30 years and a mandatory minimum term of 3 years; however, in

accordance with the terms of the plea agreement, the Commonwealth


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waived the mandatory minimum and agreed to a minimum sentence of no

more than 24 months, which falls at the bottom end of the standard range of

the sentencing guidelines. (Id. at 2-3, 5-6.) In exchange for his plea, the

Commonwealth withdrew the remaining charges. Appellant waived his right

to a pre-sentence investigation and asked to proceed directly to sentencing.

(Id. at 13.) Appellant indicated he understood that there was no agreement

on the maximum sentence he could receive and the trial court’s 2-7 year

sentence complied with the terms of the plea bargain and was well within

the guidelines. Appellant falls far short of raising a substantial question for

our review.

      Even if we were to review appellant’s sentence on the merits,

appellant would have to demonstrate that “the sentencing court sentenced

within the sentencing guidelines but the case involves circumstances where

the   application   of   the    guidelines   would   be   clearly   unreasonable.”

42 Pa.C.S.A. § 9781(c)(2). Appellant has a lengthy history of dealing drugs,

and previous attempts at rehabilitation were unsuccessful.             (Trial court

opinion, 3/12/14 at 4.)        It is clear that the trial court imposed a 7-year

maximum sentence to ensure that if appellant is paroled at the expiration of

his minimum sentence, which could be as soon as 18 months, he receives

the appropriate treatment and supervision.           (Id.; notes of testimony,

11/19/13 at 22.) Appellant’s sentence was not clearly unreasonable.

      Judgment of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.


Prothonotary

Date: 12/12/2014




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