Com. v. McNeil, T.

J-S06012-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYREEK MCNEIL :
:
Appellant : No. 1586 EDA 2018
Appeal from the Order Entered May 3, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008634-2014
BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BOWES, J.: FILED JUNE 06, 2019
Tyreek McNeil appeals pro se from the May 3, 2018 order dismissing his
PCRA petition.1 We affirm.
The PCRA court summarized the facts underlying Appellant’s conviction
as adduced at the guilty plea hearing:
On September 26, 2013, the Appellant robbed two men as
they exited a bakery on the corner of 8th and Watkins Street in
the City of Philadelphia. The Appellant approached both men on
a bike, held the two men at gunpoint, and demanded money. The
Appellant took money and a cell phone from the first victim, and
then demanded that the second victim hand over his backpack.
The second victim and the Appellant then struggled over the
backpack. During the struggle, the Appellant shot the victim,
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1 Appellant maintained that he was appealing from his January 19, 2017
judgment of sentence. If we were to treat it as such, we would quash his
appeal as untimely. However, since Appellant filed the instant appeal within
thirty days of the May 3, 2018 order denying PCRA relief, and stated on the
cover of his brief that he was appealing from the order denying post-conviction
relief, we will treat it as a timely appeal from that order.
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Josegabino Aparicio-Jeranimo, three times in the torso. Then the
Appellant fled the area with the backpack, money, and cell phone.
The victim died as a result of the gunshot wounds.
PCRA Court Opinion, 8/3/18, at unnumbered 2-3 (citations omitted
Appellant was charged by criminal information with fifteen counts,
including murder. On May 27, 2015, he entered a negotiated guilty plea to
third-degree murder, two counts of first-degree felony robbery, and three
firearms offenses, and the Commonwealth nolle prossed the remaining nine
charges. Sentencing was deferred to permit a presentence investigation. On
January 19, 2017, Appellant was sentenced as negotiated and agreed upon to
an aggregate term of fifteen to thirty years of imprisonment.2
Appellant did not seek to withdraw his plea or file a direct appeal.
Instead, he filed a timely pro se PCRA petition in which he checked the boxes
alleging ineffective assistance of counsel and imposition of a sentence greater
than the lawful maximum. He also represented therein that his sentence
exceeded the guidelines since he had a prior record score of one and no prior
violent offenses.
Counsel was appointed, and he filed a motion to withdraw and a Finley3
no-merit letter. In his no-merit letter, counsel explained that Appellant
misunderstood the sentencing guidelines and that the sentence imposed was
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2 The negotiated sentence was fifteen to thirty years of imprisonment at Count
1 (third-degree murder); five to ten years of incarceration on each of the
robbery counts, Counts 2 and 9; three to six years at Count 3 (possession of
firearm prohibited-F2). No further penalty was imposed at Counts 4 and 7,
and all sentences were to run concurrently.
3 Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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a guideline sentence and did not exceed the statutory maximum. Moreover,
counsel pointed out that it was a negotiated sentence and that counsel had
performed ably in handling the negotiations. After conducting an independent
review of the record, counsel concluded that the issues raised in Appellant’s
pro se petition had no arguable merit and that there were no other potentially
meritorious issues to advance on Appellant’s behalf. Counsel represented that
he sent Appellant a copy of the no-merit letter/brief, a copy of his motion to
withdraw, and that he advised Appellant of his right to proceed pro se or to
obtain new counsel.
The PCRA court issued a Rule 907 notice of its intent to dismiss the
petition on April 3, 2018, and Appellant did not file a response. Accordingly,
the court dismissed the petition on May 3, 2018 and granted counsel’s request
to withdraw.
Appellant timely filed the within appeal, and both Appellant and the
PCRA court complied with Pa.R.A.P. 1925. Appellant raises one issue for our
review:
A) Whether the lower court abused it’s [sic] discretion when it
impermissibly relied on the aggregated [sic] circumstances and
or factors, and failed to consider mitigating factors and
imposed an aggregate sentence of 15 to 30 years which was
manifestly excessive under the circumstances.
Appellant’s brief at 4.
When reviewing the propriety of an order granting or denying PCRA
relief, we consider the record “in the light most favorable to the prevailing
party at the PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872
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(Pa.Super. 2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20
(Pa.Super. 2014) (en banc)). We are limited to determining whether the
evidence of record supports the conclusions of the PCRA court and whether
the ruling is free of legal error. Id.Appellant alleges that the trial court abused its discretion when it failed
to consider mitigating factors and imposed a manifestly excessive sentence.4
As the PCRA court correctly noted, however, since Appellant received a
negotiated sentence, he is precluded from challenging the discretionary
aspects of his sentence. PCRA Court Opinion, 8/3/18, at 8 (citing
Commonwealth v. Baney, 860 A.2d 127, 131 (Pa.Super. 2004)); see also
Commonwealth v. Brown, 982 A.2d 1017, 1019 (Pa.Super. 2009) (holding
that “where a defendant pleads guilty pursuant to a plea agreement specifying
particular penalties, the defendant may not seek a discretionary appeal related
to those agreed upon penalties”). This claim fails.
In his pro se PCRA petition, Appellant alleged that his sentence was
excessive because it was a departure from the sentencing guidelines.
Although he does not argue illegality of sentence on appeal, we may address
it sua sponte in a timely PCRA petition. See Commonwealth v. Ballance,
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4 We note that the trial court deferred sentencing to allow time for a pre-
sentence investigation report. As we held in Commonwealth v. Ventura,
975 A.2d 1128, 1135 (Pa.Super. 2009), “where the sentencing judge had the
benefit of a presentence investigation report, it will be presumed that he or
she was aware of the relevant information regarding the defendant’s character
and weighed those considerations along with mitigating statutory factors.”
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203 A.3d 1027 (Pa.Super. 2019) (recognizing that legality of sentence is
always subject to review within the PCRA providing the court has jurisdiction,
which is tied to the filing of a timely petition).
We find that Appellant did not receive an illegal sentence. In the classic
sense, an illegal sentence is one that exceeds the statutory maximum.
Although the agreed-upon sentence for third-degree murder was in the
aggravated range, it did not exceed the statutory maximum. The individual
sentences imposed on the two robbery counts and the firearms violation also
did not exceed the statutory maximum, and, moreover, the negotiated guilty
plea provided that those sentences would run concurrent to the sentence
imposed on the count of third-degree murder. As the PCRA court noted at the
guilty plea hearing, and again in its opinion, Appellant faced a maximum
aggregate penalty of fifty-one to 102 years of imprisonment. PCRA Court
Opinion, 8/3/18, at 7. Pursuant to the negotiated guilty plea, he was
sentenced in the aggregate to fifteen to thirty years imprisonment, well below
the statutory maximum.5
Finally, Appellant alleges for the first time on appeal that counsel
induced him to enter an involuntary guilty plea by providing incorrect advice
about the potential sentence he could receive if he went to trial and was found
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5 Additionally, as the Commonwealth correctly points out, Appellant’s sentence
was not based on an unconstitutional sentencing statute, and thus, it was not
illegal on that basis.
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guilty. In addition, he avers that counsel failed to file a motion to withdraw
the plea. These ineffectiveness claims are waived as Appellant did not present
them in his PCRA petition, nor seek leave to amend his petition to assert them.
See Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa. 2004) (holding
that a claim not raised in a PCRA petition cannot be raised for the first time
on appeal). No relief is due.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/19
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