Com. v. Verducci, S. ( 2018 )

J-A28023-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SAMUEL ANTHONY VERDUCCI :
:
Appellant : No. 349 EDA 2017
Appeal from the Judgment of Sentence December 16, 2016
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000319-2016
BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J.
MEMORANDUM BY PANELLA, J. FILED MAY 29, 2018
Samuel Anthony Verducci appeals from the judgment of sentence
entered on December 16, 2016, in the Court of Common Pleas of Monroe
County. Verducci argues on appeal that the court imposed an illegal sentence,
as the factual basis for his guilty plea to violating 18 Pa.C.S.A. § 4953(a),
retaliation against a witness, established a misdemeanor of the second
degree, not a felony of the third degree. We affirm.
We assume the parties’ familiarity with the facts and procedural history
underlying this appeal. We provide the following brief recitation of the
pertinent factual and procedural background. Verducci sent a series of
threatening text messages to Deborah Berrigan, his mother’s guardian. See
Affidavit of Probable Cause, dated 4/30/15. Verducci had numerous issues
with her, see id., and she had testified against him previously in another
matter.
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The Commonwealth charged Verducci with one count of retaliation
against a witness, 18 Pa.C.S.A. § 4953(a), graded as a felony of the third
degree, and ten counts of harassment, 18 Pa.C.S.A. § 2709(a)(4). The parties
later reached an agreement whereby the Commonwealth agreed to drop all
ten harassment counts if Verducci entered an open plea of guilty to the one
felony count of retaliation.
The written guilty plea colloquy lists the offense as “Retaliation against
Witness or Victim (F-3).” The form provides the sentencing guideline ranges
for the offense. And it further states that Verducci “understand[s] all of the
elements” of the offense and states that “[o]n December 29, 2014 in POCONO
Township, Monroe County, Pennsylvania[,] I repeatedly threatened and
harassed Deborah Berrigan an appointed guardian of my mother’s person and
estate.” Verducci initialed each page of the written plea colloquy and signed
the last page.
At the guilty plea hearing, Verducci’s attorney informed the court that
he was “pleading guilty to count one, retaliation against a witness or victim.
It is a felony of the third degree. The facts are that on or about December 29
in Pocono Township, he repeatedly threatened to harass Deborah Berrigan, an
appointed guardian of, I believe, his mother’s person and estate.” Verducci
answered, “Yes, sir, your Honor,” when asked by the court if he wanted to
plead guilty to that offense. The court later imposed a sentence of forty to
eighty months, a sentence at the very beginning of the standard range of the
guidelines. This appeal followed.
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“Generally, a plea of guilty amounts to a waiver of all defects and
defenses except those concerning the jurisdiction of the court, the legality of
the sentence, and the validity of the guilty plea.” Commonwealth v.
Morrison, 173 A.3d 286, 290 (Pa. Super. 2017) (citation omitted). Verducci
does not contest the validity of the guilty plea itself; he has never alleged the
plea was not knowingly, voluntarily, and intelligently entered. Indeed, he
never moved to withdraw the plea. Instead, Verducci argues the court
imposed an illegal sentence, as the factual basis for the plea does not support
grading the offense as a third-degree felony. “[T]he proper grading of an
offense pertains to the legality of the sentence.” Commonwealth v. Aikens,
139 A.3d 244, 245 (Pa. Super. 2016) (citation omitted).
To understand Verducci’s argument we must consider 18 Pa.C.S.A. §§
4953(b) and 4952(b)(1). Section 4953(b) provides that “[t]he offense is a
felony of the third degree if the retaliation is accomplished by any of the means
specified in section 4952(b)(1) through (5) (relating to intimidation of
witnesses or victims). Otherwise the offense is a misdemeanor of the second
degree.” The applicable subsection of § 4952 is (b)(1)(i): “The actor employs
force, violence or deception, or threatens to employ force or violence, upon
the witness or victim or, with the requisite intent or knowledge upon any other
person.”
Before accepting a plea, “the court must determine whether there is a
factual basis for the plea: i.e., whether the facts acknowledged by the
defendant constitute a prohibited offense.” Commonwealth v. Fluharty, 632
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A.2d 312, 314 (Pa. Super. 1993) (citation omitted). See also Pa.R.Crim.P.
590, Comment. This “factual basis” requirement, however, “does not mean
that the defendant must admit every element of the crime.” Fluharty, 632
A.2d at 315 (internal quotation marks and citation omitted). The key is that
the “circumstances surrounding the entry of the plea indicate that the
defendant understood the nature of the charge against him.”
Commonwealth v. Schultz, 477 A.2d 1328, 1330 (Pa. 1984) (emphasis
omitted). And absent an assertion that the defendant did not actually
understand the nature of the offenses charged, we can presume the defendant
had notice of the crimes in sufficient detail to support the guilty plea. See
Commonwealth v. Anthony, 475 A.2d 1303, 1306 (Pa. 1984).
Here, Verducci was twice informed that he was pleading guilty to
felonious retaliation. And he twice affirmatively responded that he understood
that fact. He was also informed, twice, of the underlying circumstances—that
he threatened, via text message, the victim. Again, he affirmatively
responded, two times, that he understood. “[T]he plea of guilt admits that the
facts and intent occurred….” Id., at 1307. And here that is a felonious intent.
So, there was an established factual basis for the plea.
As the factual basis for the plea supported the application of §
4952(b)(1), we find the court imposed a legal sentence—and one which, as
mentioned, is at the very beginning of the standard guideline range.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/29/18
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