Com. v. Renteria, E.

J-S40012-17-J-S40013-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EMMANUEL RENTERIA :
:
Appellant : No. 2656 EDA 2016
Appeal from the Judgment of Sentence July 15, 2016
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0003746-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EMMANUEL RENTERIA :
:
Appellant : No. 2657 EDA 2016
Appeal from the Judgment of Sentence July 15, 2016
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0003898-2015
BEFORE: OTT, DUBOW, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 02, 2017
In this consolidated appeal, Appellant, Emmanuel Renteria, appeals at
2657 EDA 2016 from the judgment of sentence entered in the Court of
Common Pleas of Chester County after a jury convicted him of multiple
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S40012-17-J-S40013-17
counts of theft, robbery, aggravated assault, simple assault, recklessly
endangering another person, terroristic threats and conspiracy. In the
companion case at 2656 EDA 2016, Appellant appeals from the judgment of
sentence entered following his guilty plea to three counts of robbery and one
count of conspiracy.
The trial court imposed consecutive sentences in both cases, with an
aggregate sentence of 14 ½ to 29-year sentence applying to the case at
2657 EDA 2016, and a 14 to 28-year sentence at 2656 EDA 2016. The total
aggregate sentence for the two cases, therefore, was 28 ½ to 57 years’
incarceration.
In the present appeals, Appellant challenges the discretionary aspects
of his sentence in both cases. He also contends that his guilty plea at 2657
EDA 2016 was the invalid product of the court’s failure to advise him
beforehand of the possibility of consecutive sentences. We decline to review
these challenges, however, because Appellant has failed to preserve them in
accordance with our rules of criminal procedure and interpretive decisional
law. We, therefore, affirm.
Pennsylvania law on issue preservation with respect to guilty pleas and
discretionary aspects of sentencing requires an appellant to have first raised
the claim with the trial court:
A defendant 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. Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). Failure to
employ either measure results in waiver. Commonwealth v.
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Tareila, 895 A.2d 1266, 1270 n. 3 (Pa.Super. 2006).
Historically, Pennsylvania courts adhere to this waiver principle
because “[i]t is for the court which accepted the plea to consider
and correct, in the first instance, any error which may have been
committed.” Commonwealth v. Roberts, 237 Pa.Super. 336,
352 A.2d 140, 141 (1975) (holding that common and previously
condoned mistake of attacking guilty plea on direct appeal
without first filing petition to withdraw plea with trial court is
procedural error resulting in waiver; stating, “(t)he swift and
orderly administration of criminal justice requires that lower
courts be given the opportunity to rectify their errors before they
are considered on appeal”; “Strict adherence to this procedure
could, indeed, preclude an otherwise costly, time consuming,
and unnecessary appeal to this court”).
Likewise:
Normally, issues not preserved in the trial court may
not be pursued before this Court. Pa.R.A.P. 302(a).
For example, a request to withdraw a guilty plea on
the grounds that it was involuntary is one of the
claims that must be raised by motion in the trial
court in order to be reviewed on direct appeal.
Similarly, challenges to a court's sentencing
discretion must be raised during sentencing or in a
post-sentence motion in order for this Court to
consider granting allowance of appeal. Moreover, for
any claim that was required to be preserved, this
Court cannot review a legal theory in support of that
claim unless that particular legal theory was
presented to the trial court. Thus, even if an
appellant did seek to withdraw pleas or to attack the
discretionary aspects of sentencing in the trial court,
the appellant cannot support those claims in this
Court by advancing legal arguments different than
the ones that were made when the claims were
preserved.
Commonwealth v. Rush, 959 A.2d 945, 949 (Pa.Super. 2008),
appeal denied, 601 Pa. 696, 972 A.2d 521 (2009).
Commonwealth v. Lincoln, 72 A.3d 606, 609–10 (Pa.Super. 2013).
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Furthermore, it is well-settled that “[c]hallenges to the discretionary
aspects of sentencing do not entitle a petitioner to review as of right.”
Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super. 2011). Before
this Court can address such a discretionary challenge, an appellant must
satisfy the following four-part test:
(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant's brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
Allen, 24 A.3d at 1064.
Where the appellant’s brief does not include a statement of reasons
relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f), and the
Commonwealth objects in its brief to the omission, the appellant’s technical
noncompliance represents a fatal defect within appellant’s appeal.
Commonwealth v. Karns, 50 A.3d 158, 166 (Pa.Super. 2012) (“If a
defendant fails to include an issue in his Rule 2119(f) statement, and the
Commonwealth objects, then the issue is waived and this Court may not
review the claim.”); see also Commonwealth v. Brougher, 978 A.2d 373,
375 (Pa.Super. 2009) (“[C]laims relating to the discretionary aspects of a
sentence are waived if an appellant does not include a Pa.R.A.P. 2119(f)
statement in his brief and the opposing party objects to the statement's
absence.”); Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987)
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(failure to comply with procedural requirements for review of discretionary
aspects of sentence claims is fatal to claim).
In the case sub judice, the record confirms that Appellant neither
lodged an objection during the guilty plea colloquy nor filed a subsequent
motion with the trial court to withdraw the plea. In accordance with
established precedent cited above, therefore, we decline to review
Appellant’s challenge to the validity of his plea.
Likewise, we agree with the Commonwealth’s objection raised in each
appeal that Appellant’s discretionary aspects of sentencing claim therein is
waived for his failure to include a Rule 2119(f) statement in his brief.
For the foregoing reasons, we affirm judgments of sentence entered in
the above-captioned matters.
Judgments of sentence are AFFIRMED.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/2/2017
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