Com. v. Cotto, G. ( 2020 )

J-A08037-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GIOVANNY COTTO :
:
Appellant : No. 2218 EDA 2018
Appeal from the Judgment of Sentence Entered February 27, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001586-2016
BEFORE: LAZARUS, J., KUNSELMAN, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED MAY 20, 2020
Giovanny Cotto (Appellant) appeals from the judgment of sentence1
entered in the Philadelphia County Court of Common Pleas, following a
negotiated guilty plea for numerous offenses. Appellant challenges the
discretionary aspects of his sentencing and the voluntariness of his negotiated
guilty plea. We affirm.
Appellant was 17 years old at the time of the underlying incident. On
November 24, 2015, shortly before 9:00 a.m., Pennsylvania State Police
Troopers Timothy Jeter and William Evans stopped Appellant’s vehicle on the
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1 While Appellant purported to appeal from purported to appeal from the July
6, 2018 order denying his post-sentence motion, the appeal lies properly from
the judgment of sentence entered February 27, 2018. See Commonwealth
v. Borovichka, 18 A.3d 1242, 1245 n.1 (Pa. Super. 2010). Accordingly, we
have amended the caption.
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Interstate 76 ramp, in Philadelphia, for an expired registration. N.T.
Sentencing H’ring, 6/7/17, at 36. Appellant was the driver and three
passengers occupied the vehicle. After providing troopers with his name and
date of birth, the troopers discovered Appellant was an unlicensed driver. Id.
at 36-37. Trooper Patrick Casey shortly arrived thereafter as backup.
Troopers then removed the three passengers from the vehicle and placed
them in police cars.
Upon arrival of a tow truck, Appellant sped off in his vehicle, weaving
his way in and out of morning rush hour traffic onto Interstate 76. The
troopers immediately returned to their vehicles, activated lights and sirens,
and pursued Appellant. Troopers unsuccessfully tried to box Appellant’s
vehicle in to prevent harm to other drivers, but Appellant intentionally
slammed his car into Trooper Casey’s vehicle, causing it to lose power. N.T.
at 38. As he pulled away, Appellant crashed into the back of a school bus and
his vehicle became wedged underneath. Trooper Casey’s vehicle drifted
towards Appellant’s vehicle so that they were almost side by side. Appellant
then pointed a firearm directly at Trooper Casey and fired a bullet, which
entered the left side of the trooper’s neck and became lodged in his right
shoulder. Id. As Troopers Jeter and Evans arrived onto the scene in their
vehicles, Appellant began shooting at them. Both troopers, including the
injured Trooper Casey, returned fire. Trooper Casey then ran from his car to
Trooper Evan’s police vehicle where he was then rushed to the hospital. Id.
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at 39. Appellant ignored commands, from the troopers and Philadelphia police
officers who arrived at the scene, to put his hands in the air. As troopers and
Philadelphia Police converged, Appellant jumped over the center median on
Interstate 76 and fled on foot in the opposite travel lanes. Police detained
Appellant and took him into custody. Id.
During this chase, Appellant’s vehicle caught fire and within minutes,
both his vehicle and the school bus were engulfed in flames. It took the
Philadelphia Fire Department over 20 minutes to extinguish the flames. N.T.
at 39.
The Commonwealth charged Appellant with 23 charges: three counts
each of attempted murder2, simple assault, aggravated assault, assault of a
law enforcement officer, recklessly endangering another person3 (REAP); two
counts each of criminal mischief and fleeing or attempting to elude an
officer.;4 and one count each of possessing instruments of crime, causing
catastrophe, firearms not to be carried without a license, carrying firearms on
public streets or public property in Philadelphia, and possession of firearm by
minor.5
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2 18 Pa.C.S. §§ 901(a), 2501(a).
3 18 Pa.C.S. §§ 2701(a)(1), 2702(a), 2702.1, 2705.
4 18 Pa.C.S. § 3304(a)(4); 75 Pa.C.S. § 3733(a).
5 18 Pa.C.S. §§ 907(a), 3302(a), 6106(a)(1), 6108, 6110.1(a).
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On March 3, 2016, Appellant filed a motion for decertification to juvenile
court, but subsequently waived decertification. Appellant initially entered a
non-negotiated guilty plea on June 7, 2017, to three counts of attempted
murder, two counts of aggravated assault, and one count each of “aggravated
assault of a law enforcement officer”, See Written Guilty Plea Colloquy,
6/7/17, REAP, causing catastrophe, carrying a firearm without a license, and
fleeing or attempting to elude an officer. The remaining charges were nolle
prosequied. The trial court ordered a presentence investigation and mental
health evaluation. On November 13, 2017, Appellant filed a motion to
withdraw his plea. The trial court continued the sentencing hearing seven
times over five months, while Appellant’s counsel negotiated with the
Commonwealth and conferred with Appellant regarding a plea agreement.
At his sentencing hearing on February 27, 2018, Appellant was
permitted to enter into a new, negotiated guilty plea to the same 10 charges
as he did in his non-negotiated guilty plea, but with a negotiated sentence.
Per the parties’ agreement, the trial court sentenced Appellant to an aggregate
term of 35 to 70 years’ incarceration.
On March 8, 2018, Appellant filed a counseled post-sentence motion
challenging his 35 to 70 year sentence as an unconstitutional de facto life
sentence. Counsel also filed a motion to withdraw from representation and
requested a delayed decision on the post-sentence motion pending the
appointment of new counsel. Current counsel entered his appearance on April
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5, 2018. Appellant’s post-sentence motion was denied by operation of law on
July 6, 2018. Appellant timely filed a notice of appeal. Although the court did
not require one, Appellant filed a Pa.R.A.P. 1925(b) statement of issues
complained on appeal. Appellant’s sole challenge is to the sentence imposed.
Appellant then filed a motion for remand to supplement the Rule 1925(b)
statement, which the trial court granted on May 28, 2019. Appellant filed an
amended supplemental Rule 1925(b) statement on June 17, 2019.
Appellant presents two issues for our review:
1. Did the court impose a manifestly excessive sentence de facto
life sentence on a direct file juvenile case?
2. Did the trial court violate Rule 590 of the Pa.R.Crim.Proc.?
Appellant’s Brief at 3.
In his first issue, Appellant claims that his sentence is manifestly
excessive. Appellant avers he was a juvenile when he committed the crimes
and his sentence constitutes a de facto life sentence in violation of the United
States Supreme Court decision in Miller v. Alabama, 567 U.S. 460 (2012).
Miller held that mandatory life sentences without possibility of parole (LWOP)
for juveniles are unconstitutional and, instead, courts must consider certain
factors when sentencing a juvenile. These factors include: consideration of
the defendant’s age at the time of the offense, impulsivity and failure to
appreciate the risks and consequences of his actions, home environment,
circumstance of the offense, likelihood of being charged with a lesser crime
had the youth been able to deal with police officers, prosecutors, and his
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attorney, and potential for rehabilitation. Appellant claims the trial court
violated Miller and 18 Pa.C.S. § 1102.16 because it ignored sentencing
guidelines and did not consider certain mitigating factors that it must account
for when sentencing him, such as his age and psychological evaluation.
Appellant challenges the discretionary aspects of his sentence.
Generally, where a defendant enters into a negotiated plea agreement that
includes the terms of the sentence, the defendant may not seek a
discretionary appeal relating to those agreed-upon terms. See
Commonwealth v. Brown, 982 A.2d 1017, 1019 (Pa. Super. 2009); see
also, id., (explaining where defendant pleads guilty without agreement as
to sentence, i.e. an open plea, defendant retains right to seek review of
discretionary aspects of sentencing).
Here, it is clear that Appellant’s plea on February 27, 2018 was
negotiated. Thus, Appellant may not seek a discretionary aspects of
sentencing appeal relating to those agreed upon sentencing terms. See
Brown, 928 A.2d at 1019.
Further, this Court has determined that a “sentence of 30 years to life
imprisonment does not constitute a de facto LWOP sentence which entitles a
defendant to the protections of Miller.” Commonwealth v. Foust, 180 A.3d
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6 18 Pa.C.S. § 1102.1, enacted following Miller, listed factors a sentencing
court must consider when determining whether to impose a sentence of life
without parole for juvenile convicted of first or second degree murder.
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416, 438 (Pa. Super. 2018); see also, Commonwealth v. Bebout, 186 A.3d
462, 469 (Pa. Super. 2018) (holding minimum sentence of 45 years’
incarceration for murder committed by a 15-year-old did not constitute
impermissible de facto sentence of life in prison without parole for juvenile).
Accordingly, Miller would not be applicable to Appellant’s sentence. Here, the
trial court thoroughly explained:
Appellant’s constitutional claim is without merit because his
sentence is not of the type addressed in Miller, as it is neither a
life sentence nor was Appellant denied the possibility of parole.
* * *
. . . The Supreme Court of Pennsylvania interpreted Miller
in a 2017 homicide case. Commonwealth v. Batts, 163 A.3d
410 (Pa. 2017) (where a 14-year-old committed first–degree
murder for initiation into the Bloods gang). The court in Batts
held that Miller did not create a categorical ban on life sentences
without parole for juveniles, only that “a sentencing court has no
discretion to sentence a juvenile offender to life without parole
unless it finds that the defendant is one of the ‘rare’ and
‘uncommon’ children” whose personality is immune to therapeutic
intervention and completely incorrigible. Id. at 444. Should a
juvenile offender fall into that category, the sentencing court is
free to use its discretion and sentence that offender to life. ld. at
444.
The types of sentences analyzed in Miller and Batts and
the type of sentence Appellant received after entering into a
negotiated guilty plea are easily distinguishable. [Miller, 567 U.S
at. 460; Batts, 163 A.3d at 410]. Appellant was not convicted of
any offense that would require a mandatory life sentence without
parole. . .
* * *
The [t]rial [c]ourt is sympathetic to Appellant’s age even
though he was three years older at the time of the incident than
were the 14-year-old defendants in Miller and Batts. [See
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Miller, 567 U.S. at 460; Batts, 163 A.3d at 410]. Appellant was
17 years old on November 24,2015 and young people make
mistakes. N.T. 06/07/2017 at 8-9. What happened that morning
during rush-hour traffic, however, cannot be characterized as a
youthful indiscretion. After leading police officers on a dangerous
chase in and out of traffic on 1-76 and onto 1-676 in Philadelphia,
Appellant hit a school bus that then caught on fire. Id. at 38.
Appellant continued running from the police before opening fire in
the middle of rush-hour traffic, shooting a State Trooper in the
neck. Id. Given how busy the highway was at that time and how
many officers had confronted Appellant, it is remarkable that no
one aside from Trooper Casey was injured or killed.
Trial Ct. Op. 8/2/19. If Appellant’s sentencing issue were properly before this
Court, we would agree with the trial court that Miller would not apply.
In his second issue, Appellant contends that his negotiated guilty plea
was not voluntary because the trial court failed to determine on the record
whether he understood the negotiated plea agreement, and the court failed
to advise him of the permissible range of sentence. Appellant avers that this
failure to provide a proper colloquy violated Pa.R.Crim.P. 590.
Pennsylvania Rule of Appellate Procedure 302(a) provides, “Issues not
raised in the lower court are waived and cannot be raised for the first time on
appeal.” Pa.R.A.P. 903. Further, an appellant wishing to challenge the
voluntariness of a guilty plea on direct appeal must either object during the
plea colloquy or file a motion to withdraw the plea within ten days of
sentencing; failure to employ either measure results in waiver.
Commonwealth. v. Lincoln, 72 A.3d 606, 609 (Pa. Super. 2013); see
Pa.R.A.P 720(A)(1), (B)(1)(a)(i).
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At no point in the proceedings before the trial court did Appellant
challenge the voluntariness of his plea or seek to withdraw it. Appellant raised
no such issue in his post-sentence motion and instead, raises it for the first
time on appeal. Thus, this issue is waived. See Pa.R.A.Ap. 302(a).
Moreover, even if Appellant’s claim were preserved, he would not be
entitled to relief. To ensure that a plea is voluntary, knowing, and intelligent,
Rule 590 of the Pennsylvania Rules of Criminal Procedure requires that a trial
court conduct a separate inquiry of the defendant before accepting a guilty
plea. The comment to Rule 590 provides the trial court should determine,
inter alia, whether the defendant understands the permissible range of
sentences. Commonwealth v. Hart, 174 A.3d 660, 667-68 (citations
omitted). “The purpose of [Rule 590] is to insure that the defendant fully
understands the nature of the crimes to which he or she is pleading guilty and
the rights that are being waived by the plea.” Commonwealth v. Carter,
656 A.2d 463, 465 (Pa. 1995). The comment to Rule 590 further states that
“nothing in the rule would preclude the use of a written colloquy that is read,
completed, signed by the defendant, and made part of the record of the plea
proceedings. [However, t]his written colloquy would have to be supplemented
by some on the-record oral examination.” Pa.R.Crim.P. 590, cmt.
Here, the trial court explained:
. . .Throughout the plea and in sentencing, the [t]rial [c]ourt gave
Appellant ample time to speak to his attorney and his family about
the best path forward in the face of extremely serious charges.
N.T. at 9. A negotiated guilty plea by nature requires both parties
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to come together to reach an agreement. Appellant’s attorney
went to great lengths to ensure that his client understood
everything that was happening around him in court. Id. at 19-
20, 32. Appellant’s attorney, with the permission of the [t]rial
[c]ourt, also clarified anything that might confuse Appellant
throughout the sentencing process. Id. It follows that Appellant’s
attorney would have also made Appellant aware of the terms of
his plea. Appellant was also present in court when counsel
presented the negotiated guilty plea and its sentencing terms.
N.T. 2/27/18 at 4.
Finally, the [t]rial [c]ourt detailed the terms of Appellant’s
sentence and his appellate rights to confirm that Appellant
understood all of the information that had been presented. Id. at
39-44. It is clear that Appellant entered into both the prior non-
negotiated guilty plea and the negotiated guilty plea knowingly,
intelligently, and voluntarily. Id. at 35. The [t]rial [c]ourt
complied with Pa.R..Crim.P 590.
Trial Ct. Op. at 6-7.
Here, Appellant and the Commonwealth negotiated the length of
Appellant’s sentence. The Commonwealth agreed to nolle pros certain
charges in exchange for a guilty plea to 10 charges for an aggregate sentence
of 35 to 70 years. Appellant completed a written guilty plea colloquy for the
non-negotiated guilty plea on June 7, 2017. Eight months later, on February
27, 2018, at his sentencing hearing, the trial court, as well as Appellant’s
attorney, explained to Appellant the charges that he would plead guilty to, the
rights he was waiving, and the length of his sentence. See Pa.R.Crim.P.
590, cmt. Appellant stated on the record that he understood. Accordingly,
Appellant is not entitled to any relief.
As discussed above, Appellant's initial, June 7, 2017, open plea to ten
charges did not include any agreement as to the sentence he would receive.
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We emphasize that he completed a written guilty plea colloquy, which set forth
the permissible range of sentences for each offense. See Written Guilty Plea
Colloquy, 6/7/17. Eight months later, on February 27, 2018, Appellant
entered guilty pleas to the same ten charges, this time with an agreement
with the Commonwealth for a recommended sentence of 35 to 70 years'
incarceration. At this sentencing hearing, the trial court, as well as Appellant’s
attorney, explained to Appellant the charges that he would plead guilty to, the
rights he was waiving, and the length of his sentence. See Pa.R.Crim.P.
590, cmt. Appellant stated on the record that he understood. The trial court
accepted his pleas and imposed the sentence negotiated by the parties.
Although the transcript for this hearing does not indicate that the permissible
range of sentences was again stated on the record, we would find no merit to
Appellant's claim that he was not aware of, or ever apprised of, the permissible
range of sentences as required by Rule 590. Accordingly, Appellant would not
be entitled to any relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/20/2020
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