Com. v. Terry, N. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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1 18 Pa.C.S.A. § 2702.
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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).
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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
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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.
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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.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/14/18
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