Com. v. Medelo, E. ( 2015 )

J-S24030-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDWARD JOSEPH MEDELO,
Appellant No. 2896 EDA 2014
Appeal from the Judgment of Sentence entered October 28, 2013
in the Court of Common Pleas of Lehigh County,
Criminal Division, at No(s): CP-39-CR-0003579-2012,
CP-39-CR-0005310-2012 and CP-39-CR-0005314-2012
BEFORE: GANTMAN, P.J., ALLEN, and MUSMANNO, JJ.
MEMORANDUM BY ALLEN, J.: FILED APRIL 14, 2015
Edward Joseph Medelo (“Appellant”) appeals from the judgment of
sentence imposed after he pled nolo contendere to twelve counts of
burglary, two counts of attempted burglary and one count of criminal
conspiracy to commit burglary.1 We affirm.
The trial court summarized the pertinent facts as follows:
[Between May 8, 2012 and June 11, 2012], [A]ppellant and his
confederate burglarized or attempted to burglarize various
convenience stores and/or gas stations throughout Lehigh and
Northampton Counties. ... The modus operandi for this burglary
spree was the use of a rock or brick to break windows in order to
gain entry into these businesses. Once inside, primarily cartons
of Newport and/or Marlboro cigarettes were stolen. The spree
ended on June 11, 2012, when they attempted to enter a store
____________________________________________
1
18 Pa.C.S.A. §§ 3502(a), 901 and 903(a).
J-S24030-15
named the Binny Mart by smashing a front window. A passerby
observed two males wearing hooded sweatshirts running from
the store and called 9-1-1. The vehicle that the suspects used to
depart the scene was stopped a short time later, and
[A]ppellant’s involvement in all of these burglaries was
uncovered.
Trial Court Opinion, 10/23/14, at 1-2.
Appellant was arrested and charged with the aforementioned offenses,
and on May 14, 2013, he entered an open plea of nolo contendere.
Following a hearing on October 28, 2013, the trial court sentenced Appellant
to an aggregate term of imprisonment of fourteen to twenty-eight years,
with eligibility for the Recidivism Risk Reduction Incentive Program (“RRRI”).
Appellant filed a post-sentence motion on November 5, 2013, amended on
November 7, 2013, which the trial court denied.
On March 25, 2014, Appellant filed a pro se petition for relief pursuant
to the Post Conviction Relief Act (“PCRA”) 42 Pa.C.S.A. §§ 9541-46. Counsel
was appointed and on July 3, 2014, filed an amended PCRA petition on
Appellant’s behalf seeking, inter alia, the reinstatement of Appellant’s direct
appeal rights nunc pro tunc. On September 23, 2014, the trial court granted
Appellant’s PCRA petition in part, and granting him leave to file a notice of
appeal nunc pro tunc. This appeal followed. Both Appellant and the trial
court have complied with Pa.R.A.P. 1925.
Appellant presents a single issue for our review:
WERE THE SENTENCES IMPOSED EXCESSIVE BECAUSE THE
COMMONWEALTH HAD ALREADY OFFERED A MINIMUM
SENTENCE OF SEVEN YEARS WHICH IT FELT WAS SUITABLE.
-2-
J-S24030-15
Appellant’s Brief at 4.
Although Appellant frames his argument as a challenge to the trial
court’s sentencing discretion, the basis of Appellant’s argument is a claim of
trial counsel ineffectiveness. Specifically, Appellant asserts that prior to
trial, the Commonwealth informed his trial counsel that it would agree to a
negotiated plea agreement to cap the minimum sentence at no more than
seven years. Appellant’s Brief at 9-11. Appellant claims that his trial
counsel did not tell him about the Commonwealth’s offer until it had expired,
thus precluding Appellant from accepting the offer, contemporaneous with
counsel rendering ineffective representation. Id. Appellant maintains that
he should have received the benefit of the Commonwealth’s offer to cap the
minimum sentence at seven years, that he was deprived of the benefit of a
seven year minimum sentence because his trial counsel did not inform him
of the offer, and that in light of the foregoing, it was an abuse of discretion
for the trial court to sentence him to fourteen to twenty-eight years of
imprisonment. Id.
Although Appellant raised the underlying ineffectiveness claim in a
PCRA petition and developed it at the September 22, 2014 PRCA hearing, we
decline to review it in this direct appeal. Specifically, in his PCRA petition, in
addition to seeking reinstatement of his direct appeal rights, Appellant also
raised allegations that trial counsel was ineffective for failing to inform him
of the Commonwealth’s seven-year plea deal. See Amended PCRA Petition,
-3-
J-S24030-15
6/3/14. At the PCRA hearing, the trial court heard evidence regarding
whether trial counsel was ineffective for failing to preserve Appellant’s direct
appeal rights, and also whether trial counsel failed to inform Appellant of the
Commonwealth’s seven-year plea offer.2 However, at the conclusion of the
hearing, the trial court did not make any findings as to whether trial counsel
was ineffective with regard to communicating the Commonwealth’s plea
offer to Appellant. Instead, the trial court ruled solely on whether
Appellant’s direct appeal rights should have been reinstated.
Although the issue of trial counsel’s ineffectiveness was developed at
the PCRA hearing, we decline to address it here on direct appeal. Our
Supreme Court in Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa.
2013), has reaffirmed the general rule that “claims of ineffective assistance
of counsel are to be deferred to PCRA review; trial courts should not
entertain claims of ineffectiveness upon post-verdict motions; and such
claims should not be reviewed upon direct appeal.” In Holmes, the
Supreme Court “specifically disapproved of expansions of the exception [of]
general rule recognized in Commonwealth v. Bomar, 826 A.2d 831 (Pa.
2003),” which held that if a claim of ineffectiveness of trial counsel had been
fully developed at a hearing devoted to the question of ineffectiveness, such
____________________________________________
2
Appellant’s trial counsel was called as a witness and testified extensively
that he had informed Appellant of the Commonwealth’s plea offer. N.T.,
9/22/14, at 11-60.
-4-
J-S24030-15
claim could be reviewed on direct appeal. Commonwealth v. Burno, 94
A.3d 956, 970 (Pa. 2014) citing Holmes, supra.
The High Court recognized only two exceptions to the general rule
requiring deferral of ineffectiveness claims to PCRA review, both of which fall
within the discretion of the trial judge. In this regard, the Supreme Court
explained:
First, we appreciate that there may be extraordinary
circumstances where a discrete claim (or claims) of trial counsel
ineffectiveness is apparent from the record and meritorious to
the extent that immediate consideration best serves the
interests of justice; and we hold that trial courts retain their
discretion to entertain such claims.
Second, with respect to other cases and claims, including
cases such as Bomar ..., where the defendant seeks to litigate
multiple or prolix claims of counsel ineffectiveness, including
non-record-based claims, on post-verdict motions and direct
appeal, we repose discretion in the trial courts to entertain such
claims, but only if (1) there is good cause shown,1 and (2) the
unitary review so indulged is preceded by the defendant's
knowing and express waiver of his entitlement to seek PCRA
review from his conviction and sentence, including an express
recognition that the waiver subjects further collateral review to
the time and serial petition restrictions of the PCRA.2 In other
words, we adopt a paradigm whereby unitary review may be
available in such cases only to the extent that it advances (and
exhausts) PCRA review in time; unlike the so-called Bomar
exception, unitary review would not be made available as an
accelerated, extra round of collateral attack as of right. This
exception follows from the suggestions of prior Court majorities
respecting review of prolix claims, if accompanied by a waiver of
PCRA review.
1
[I]n short sentence cases the trial court's
assessment of good cause should pay
particular attention to the length of the
sentence imposed and the effect of the length
of the sentence will have on the defendant’s
-5-
J-S24030-15
realistic prospect to be able to avail himself of
collateral review under the PCRA.
2
Unitary review describes the defendant's ability
to pursue both preserved direct review claims
and collateral claims of trial counsel
ineffectiveness on post-sentence motions and
direct appeal, and could aptly describe both
exceptions we recognize today. However, for
purposes of this appeal, we intend the term
only to describe the second exception, i.e.,
that hybrid review which would encompass
full-blown litigation of collateral claims
(including non-record-based claims).
Holmes, 79 A.3d at 563–64 (citations omitted) (footnotes in original).
Here, although Appellant’s ineffectiveness claim was developed at the
PCRA hearing, it does not fall into either of the Holmes exceptions which
would permit this Court to address it on direct appeal. Appellant does not
argue — nor do we find — that his ineffectiveness claim is of such
extraordinary magnitude warranting immediate consideration as to fall
within the first exception. The second exception likewise does not apply, as
Appellant made no express waiver of future PCRA review. Accordingly, we
deny relief without prejudice for Appellant to raise any cognizable
ineffectiveness claims in a timely PCRA petition. See 42 Pa.C.S. §§ 9543,
9545.
To the extent Appellant claims that the trial court abused its discretion
when it imposed a sentence in excess of the seven-year plea deal offered by
the Commonwealth, before we reach the merits of such a discretionary
claim, we must engage in a four part analysis to determine: (1) whether the
-6-
J-S24030-15
appeal is timely; (2) whether Appellant preserved his issue; (3) whether
Appellant's brief includes a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of sentence;
and (4) whether the concise statement raises a substantial question that the
sentence is appropriate under the sentencing code. If the appeal satisfies
each of these four requirements, we will then proceed to decide the
substantive merits of the case. Commonwealth v. Austin, 66 A.3d 798,
808 (Pa. Super. 2013) (citations omitted).3
Appellant has adequately preserved his claim in his post-sentence
motion and filed a timely notice of appeal. Appellant has additionally
included in his brief a concise statement pursuant to Pa.R.A.P. 2119(f). See
Appellant’s Brief at 9. Therefore, we proceed to determine whether
Appellant has presented a substantial question for our review.
“A substantial question exi[s]ts only when the appellant advances a
colorable argument that the sentencing judge’s actions were either: (1)
inconsistent with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.”
Commonwealth v. Clarke, 70 A.3d 1281, 1286-1287 (Pa. Super. 2013)
(citation omitted). Here, Appellant claims that his sentence of fourteen to
____________________________________________
3
See Commonwealth v. Dalberto, 648 A.2d 16 (Pa. Super. 1994)
(holding that a defendant who enters an open plea which does not involve
an agreement as to sentence to be imposed, can raise a discretionary
challenge to the trial court’s sentence).
-7-
J-S24030-15
twenty-eight years was excessive because it exceeded the Commonwealth’s
plea offer to cap the minimum sentence at seven years. We note, however,
that Appellant entered into an open plea by which there was no agreement
to restrict the Commonwealth’s right to seek the maximum sentences
applicable to the charges. See Dalberto, 648 A.2d at 20 (citations omitted)
(“In an open plea agreement, there is an agreement as to the charges to be
brought, but no agreement at all to restrict the prosecution's right to seek
the maximum sentences applicable to those charges.”); Commonwealth v.
Parsons, 969 A.2d 1259, 1267 (Pa. Super. 2009). At the time Appellant
entered his nolo contendere plea, the trial court expressly informed
Appellant:
[T]here’s always a minimum and maximum sentence imposed.
The minimum is when you’re eligible for parole, the maximum is
when you are no longer on parole supervision. ... Under the
terms of this plea, your minimum sentence could not be
more than seventy-five years in jail, your maximum
sentence could not be more than a hundred and fifty years
in jail.
N.T., 5/14/13, at 9-10 (emphasis added).
Thereafter, at the sentencing hearing, the trial court reiterated that
Appellant faced a minimum sentence of up to seventy-five years and a
maximum of up to one hundred and fifty years. N.T., 10/28/13, at 7-8.
Thus, Appellant was well aware that the trial court had the discretion to
sentence him to a minimum sentence of up to seventy-five years.
-8-
J-S24030-15
Appellant nevertheless claims that the trial court abused its sentencing
discretion by failing to take into consideration the fact that he could have
potentially entered into a negotiated plea agreement with the
Commonwealth that would cap the minimum sentence at seven years. This
claim does not present a substantial question for our review. Because
Appellant entered into an open plea, his sentence was left to the discretion
of the trial court. See Dalberto, 648 A.2d at 20. The fact that the trial
court, in fashioning its sentence, declined to impose a sentence
commensurate with a failed negotiated plea agreement is neither
inconsistent with a specific provision of the Sentencing Code nor contrary to
the fundamental norms which underlie the sentencing process.
The record reflects that at the sentencing hearing, Appellant’s counsel
stated that Appellant “turned down [a Commonwealth offer of] five to ten
[and] [there’s] an indication that he turned down a seven year offer, and he
ended up with an open plea.” N.T., 11/28/13, at 13-14. Based on this
information, the trial court reasoned that Appellant had rejected the
Commonwealth’s offers for a negotiated plea in favor of an open plea, and
that Appellant understood that there was no agreement as to his sentence.
As the trial court explained:
[Appellant’s] claim of excessiveness provides no basis for
relief because the sentencing court is not bound by plea
agreements which are rejected.
***
-9-
J-S24030-15
[A]ppellant received standard range sentences for each of
the fifteen (15) counts. In fact, the sentences imposed were at
the bottom end of the standard range of the Sentencing
Guidelines. All of the offenses were graded as Felonies of the
second degree, and carried a statutory maximum of ten (10)
years. If the statutory maximum was imposed for each offense,
and ordered to run consecutively, [A]ppellant faced a potential
sentence of not less than seventy-five (75) years nor more than
one hundred and fifty (150) years in a state correctional
institution.
[A]ppellant, a compulsive burglar, received consecutive
standard range sentences for fourteen (14) distinct burglaries or
attempted burglaries. However, those sentences were far less
than what was permitted under the parameters of [A]ppellant’s
pleas. The sentence of not less than fourteen (14) years or
more than twenty-eight (28) years, while severe, fails to raise a
substantial question.
Furthermore, the decision to impose the sentences for
each of the burglaries consecutively to each other does not
present a substantial question. It has frequently been explained
that the imposition of consecutive rather than concurrent
sentences lies within the sound discretion of the sentencing
court. Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa.
Super. 2008). A challenge to the imposition of consecutive
rather than concurrent sentences generally does not present a
substantial question regarding the discretionary aspects of
sentence. Id. ...
The one limited exception to this conclusion is when the
imposition of a consecutive sentence “raises the aggregate
sentence to, what appears upon its face to be, an excessive level
in light of the criminal conduct at issue in the case.”
Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa.
Super. 2010)....
[A]ppellant’s lifework is committing burglaries. A review of
his prior criminal history discloses that, including the fourteen
(14) burglaries in this case, [A]ppellant was convicted of
committing six (6) burglaries in 2006 and one (1) in 2000. In
light of that history alone, the aggregate sentence in this case is
not excessive and no substantial question exists.
- 10 -
J-S24030-15
Trial Court Opinion, 10/23/14, at 4, 8-9 (footnotes omitted). We agree with
the trial court’s assessment. For the foregoing reasons, we affirm the
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/14/2015
- 11 -