Com. v. Jones, M.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MARCUS JONES, : No. 766 WDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, November 24, 2014,
in the Court of Common Pleas of Allegheny County
Criminal Division at Nos. CP-02-CR-0005593-2013,
CP-02-CR-0017261-2013
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 26, 2016
Marcus Jones appeals the judgment of sentence in which the trial court
sentenced him to serve an aggregate sentence of two and one-half to five
years’ imprisonment for possession with intent to deliver a controlled
substance (“PWID”)1 followed by five years’ probation.2
With respect to PWID and the criminal use of a communication facility,
the trial court recounted the following facts:
[O]n April 26, 2012, the Moon Township Police
Department received a call that there was a
* Retired Senior Judge assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30).
2
The probation included five years’ concurrent probation for criminal use of
a communication facility, 18 Pa.C.S.A. § 7512(a), and two years’ concurrent
probation for simple assault, 18 Pa.C.S.A. § 2701(a)(3).
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twenty-five year old deceased male in Room 136 at
the Motel 6 located in Moon Township. Officer
Ian Lucas of the Moon Township Police Department
was dispatched to the Motel 6 and when he arrived
there, he met with the deceased male’s father,
Stewart Brinkley. Brinkley identified the deceased as
his son and Officer Lucas observed numerous
needles and open stamp bags of heroin lying on the
bed and dresser in that room. The stamp bags of
heroin were labeled “new arrival” with a gold eagle
emblem on them.
On April 27, 2012, text messages were located
on the cell phone that the victim, Jeremy Brinkley,
had been using. Jeremy Brinkley’s father, who
authorized the police to search that particular phone,
owned this cell phone. Detective Charles Carr of the
Moon Township Police Department made an
investigation of that phone and determined that
there were a number of text message exchanges
between the Brinkley cell phone and the cell phone
number of 412-[--------]. The nature of these text
messages led him to believe that they were between
a user who was attempting to purchase heroin and a
supplier. Detective Carr was authorized by the
Office of the Attorney General to communicate
through both oral and text messages with the
source’s phone number and this was done on that
date. Detective Carr contacted the source number
and asked him if he was available, told the source
that he was looking to get drugs and wanted to know
if he had any. The response that came back was
yes, that he had drugs and they were the same
ones. Detective Carr then said he had one hundred
eighty to two hundred dollars and they agreed to
meet at the Motel 6 in Moon Township.
Detective Carr went to the Motel 6 and then texted
the source and asked where he was and the source
responded that he was in a red pickup truck that was
parked in the front parking lot of that Motel. The
police approached that vehicle and removed two
young males from the vehicle. The driver was
identified as Anderson Marshall and the passenger
was identified as [appellant]. Detective Carr then
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texted the source’s cell phone number and the phone
rang and displayed the name of Jeremy and that
phone was [appellant’s] phone. [Appellant] was
then arrested and as a result of a pat down search,
was found to be in possession of seven hundred
eight dollars, twenty stamp bags of heroin marked
“new arrival” with a gold eagle emblem, and the cell
phone that had been exchanging messages with Carr
and Brinkley.
Trial court opinion, 2/11/16 at 4-5.
With respect to the charge for simple assault, Julie Capone, Esq., the
Commonwealth’s attorney, summarized the evidence it would have
presented had the case gone to trial:
Had the Commonwealth proceeded on Case
Number 201317261, we would have called Officer
Micah Anthony from the Pittsburgh Police
Department as well as Horace Durham and Frances
Durham, who would have testified . . . that on
December 3rd of 2013, Frances Durham, who was
77 years old at the time, stated that she and her
24-year-old grandson, [appellant], had gotten into
an argument. He had believed that she had taken
his marijuana stash.
[Appellant] told Mrs. Durham that he would
hurt her, his father Horace Durham, and his uncle,
who was not on scene. He had ripped all the phone
cords out of the wall and picked up a television as if
to throw it.
Mrs. Durham stated she was in fear at that
time of injury.
Mr. Horace Durham, who was just operated on
for lung cancer, arrived on scene with his
one-year-old grandson, Marcus Jones, Jr., who is
[appellant’s] son, to make sure his mother was safe.
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She, Frances, would have testified that she
had called her son earlier to tell him about the
threats that were being made. Concerned for her
safety, they called the police.
While officers were searching the area because
[appellant] had left, another call came in while the
officers were looking for [appellant], that [appellant]
had returned back to the scene and at this time got
into a physical altercation with his father
Horace Durham, knocking him to the ground as well
as the baby that Horace Durham was holding.
At this point, Horace Durham reached for his
gun and told [appellant] he was going to get his gun.
They then started to fight over the gun. Mr. Durham
started to lose consciousness because he was
assaulted by [appellant] and proceeded to shoot
[appellant] in the thigh.
[Appellant] left at that time and took his
grandmother’s car and drove himself to Allegheny
General Hospital.
It would be noted . . . that no one asked for
treatment and refused treatment at the scene,
including the infant baby.
Notes of testimony, 8/28/14 at 6-8.
On August 28, 2014, appellant pled guilty to criminal use of a
communication facility, PWID, and simple assault. The Commonwealth
dropped the remaining charges.
In the written plea colloquy, appellant answered “Yes” to the following
questions:
5. Do you understand that if you have been
charged with more than one offense, the Court
may impose a separate, or consecutive,
sentence for each offense? []
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6. Have you discussed with your attorney the
elements of each charged offense? []
7. Have you discussed with your attorney the
factual basis of each charged offense? []
8. Have you discussed with your attorney how the
facts in your case prove the elements of each
charged offense? []
....
44. Have you and your attorney discussed the
maximum possible sentences which this Court
could impose? []
....
61. Are you satisfied with the legal advice and
legal representation of your attorney? []
62. Have you had ample opportunity to consult
with your attorney before entering your plea,
and are you satisfied that your attorney knows
all of the facts of your case and has had
enough time within which to check any
questions of fact or law which either you or
your attorney may have about this case? []
63. Has your attorney gone over with you the
meaning of the terms of this document?
Guilty Plea, explanation of defendant’s rights, 8/28/14 at 2, 8, and 10,
¶¶ 5-8, 44, and 61-63.
At the guilty plea hearing on August 28, 2014, the trial court asked
appellant if he understood the maximum sentences that could be imposed
for each crime for which appellant pleaded guilty. Appellant answered that
he did. Appellant responded in the affirmative when the trial court asked
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him whether he was satisfied with his representation and that his counsel
had explained to him the crimes for which he pled guilty and the elements of
those crimes. (Notes of testimony, 8/28/14 at 4.)
At the sentencing hearing, Stuart Brinkley, the father of
Jeremy Brinkley, testified that appellant was not a friend of his son, but was
an aggressive drug dealer who would continually call and text
Jeremy Brinkley in an effort to sell him heroin. (Notes of testimony,
11/24/14 at 7-8.) The trial court stated that, as a result of appellant’s drug
activity, “somebody died,” and called him a “killer.” (Id. at 11-12.)
On December 4, 2014, appellant filed a post-sentence motion. On the
same date, Brandon Herring, Esq. (Attorney Herring), moved to withdraw as
counsel. On February 13, 2015, the trial court granted the motion to
withdraw and appointed new counsel. On March 17, 2015, appellant filed an
amended post-sentence motion. The trial court denied the motions on April
14, 2015.
Appellant raises the following issues for this court’s review:
1. Whether the trial court erred and abused its
discretion in not granting Appellant’s motion to
withdraw his guilty plea because it was not
knowingly and voluntarily made in that his
counsel was ineffective and did not advise him
(a) that the factual basis for the plea would
include representations that he was the source
of the drugs responsible for an overdose
death; (b) that he had a right to file a motion
to suppress the evidence challenging the
probable cause for the felony stop/arrest; and
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(c) of the maximum possible penalty and
sentence which the court could impose?
2. Whether the trial court erred and abused its
discretion because the sentence was manifestly
excessive, not appropriate under the
Sentencing Code and contrary to the
fundamental norms underlying the sentencing
process in that it was beyond the aggravated
guideline range based on a finding of fact that
Appellant was the source of the drugs for and
was responsible for an overdose death which
was not supported by competent evidence and
which was against the weight of the evidence?
Appellant’s brief at 4.
Appellant asserts that he would not have entered a plea had he known
that the factual explanation of the summary of the evidence would include
references to his presumed responsibility for the death of Jeremy Brinkley.
Appellant adds that his counsel did not advise him that the summary of the
evidence would include this information so that trial counsel was ineffective.
With respect to whether appellant made a knowing and voluntary plea,
this court has held that “[i]n order to permit the withdrawal of a guilty plea
after sentence has been entered, there must be a showing of prejudice that
results in a manifest injustice to the defendant.” Commonwealth v.
Vance, 546 A.2d 632, 635 (Pa.Super. 1988), appeal denied, 557 A.2d 723(Pa. 1989), cert. denied sub nom. Vance v. Horn, 516 U.S. 1060 (1996)
(citations omitted).
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“When reviewing a trial court’s denial of a motion to withdraw a plea of
guilty, we will not disturb the court’s decision absent an abuse of discretion.”
Commonwealth v. Miller, 748 A.2d 733, 735 (Pa.Super. 2000).
The trial court correctly stated that the information concerning
Jeremy Brinkley and appellant’s connection to him was contained in the
affidavit attached to the original criminal complaint. Appellant should have
been aware that the factual summary would contain references to
Jeremy Brinkley’s death. Further, to the extent appellant claims that his
trial counsel was ineffective, a petitioner must wait to raise claims of
ineffective assistance of counsel until collateral review. Commonwealth v.
Grant, 813 A.2d 726, 738 (Pa. 2002).
Appellant next contends that he would not have entered his plea had
he been aware of and effectively advised by counsel of his right to file a
motion to suppress the evidence concerning the stop and arrest in the
parking lot of the Motel 6. Once again, appellant challenges the
effectiveness of counsel which is properly brought in a collateral attack.
Grant.
Appellant next contends that he would not have entered pleas to either
of the two cases had he known and been effectively advised of the maximum
possible sentence as opposed to his belief that there was a plea agreement
for both cases within the standard range of 6 to 14 months followed by a
period of probation. Appellant argues that he did not understand the trial
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court’s explanation of the maximum penalty because he believed that it did
not apply to him.
In the written colloquy, appellant answered “yes” to the questions of
whether he understood that if the plea were accepted, the judge would still
have to sentence him on the charges for which he pled guilty and whether
he and his attorney had discussed the maximum possible sentence which the
trial court could impose. Then, at the plea hearing, the trial court asked
appellant whether he understood the maximum sentences for the charges
for which he was pleading guilty and the maximum total possible sentence.
Appellant replied that he did. (Notes of testimony, 8/28/14 at 2-4.) An
appellant is constrained by the statements made during the plea colloquy
and cannot readily thwart the effect of those statements and attempt to
render the voluntary plea invalid without demonstrating manifest injustice.
See Commonwealth v. Stork, 737 A.2d 789 (Pa.Super. 1999). Appellant’s
claim that he thought that there was a plea agreement for both cases and
that his counsel failed to adequately explain the maximum sentence to him
does not constitute manifest injustice. A review of the written and oral plea
colloquies indicates that the trial court did not abuse its discretion when it
denied the motion to withdraw the plea on the basis that it was not
knowingly and voluntarily given. Once again, to the extent that appellant is
raising the issue of the ineffectiveness of his counsel, that issue is raised in
collateral review.
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Appellant next contends that the trial court erred and abused its
discretion because the sentence was manifestly excessive, inappropriate
under the Sentencing Code, and contrary to the fundamental norms
underlying the sentencing process because it exceeded the aggravated
guideline range of 20 months and was based on an erroneous determination
that appellant was responsible for Jeremy Brinkley’s death.
[T]he proper standard of review when considering
whether to affirm the sentencing court’s
determination is an abuse of discretion. . . . [A]n
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, our Court
recently offered: 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.
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate
review is that the sentencing court is in the best
position to determine the proper penalty for a
particular offense based upon an evaluation of the
individual circumstances before it.
Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)
(citation omitted).
Challenges to the discretionary aspects of sentencing
do not entitle an appellant to review as of right.
Commonwealth v. Sierra, [752 A.2d 910, 912
(Pa.Super. 2000)]. An appellant challenging the
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discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to
determine: (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, 42 Pa.C.S.A.
§ 9781(b).
Moury, 992 A.2d at 170 (citation omitted).
Here, we begin our analysis by determining whether appellant has
complied with the procedural requirements of challenging his sentence.
First, appellant timely filed his notice of appeal pursuant to Pa.R.A.P. 902
and 903. Second, appellant raises the issue that the trial court erred and
abused its discretion when it sentenced appellant beyond the aggravated
guideline range on the basis that appellant was responsible for the death of
Jeremy Brinkley. A review of appellant’s post-trial motions reveals that he
raised this issue.
Third, appellant included a Rule 2119(f) statement in his brief in which
he avers:
[T]he trial court sentenced Appellant beyond the
aggravated guideline range of 20 months based on
findings of facts which are contrary to the weight of
the competent evidence of record and which would
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have required additional charges and a conviction or
plea thereto before same could properly apply as a
basis for Appellant’s sentencing under the
Sentencing Code, 42 Pa.C.S.[A.] § 9732 and § 9752.
This constitutes a colorable argument that the
sentencing judge’s actions were also contrary to the
fundamental norms underlying the sentencing
process – whereby sentencing is based on the crimes
pled to and prior convictions, but not crimes which
were never charged or proven.”
Appellant’s brief at 8.
A claim that a trial court relied on an improper factor when levying a
sentence constitutes a substantial question. See Commonwealth v.
Downing, 990 A.2d 778, 782 (Pa.Super. 2010). We, therefore, will address
his appeal on the merits.
At the sentencing hearing, the trial court explained its sentencing
decision:
[Appellant], I’ve read the presentence report, and
that’s probably to your detriment. I note that there
is currently a pending charge filed against you where
1,055 stamp bags of heroin were found together with
a .380 pistol, also details your prior history through
juvenile court and as an adult, the fact that your
[sic] running around with a firearm got you shot, you
threaten people, and, as a result of your drug
activity, somebody died.
You just told me you have no remorse for that,
and that’s a shame because you are a drug dealer
and a killer.
Notes of testimony, 11/24/12 at 11-12.
In its opinion, the trial court further explained its decision:
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Pursuant to the provisions of the Sentencing Code, if
any individual sentence is entitled to have an
individualized sentence, the Court is required to
consider the impact of the crime on the victim, the
safety of the public and the defendant’s rehabilitative
needs. This Court ordered a presentence report and
that report revealed [appellant’s] continued
involvement in the criminal justice system, beginning
with adjudications in Juvenile Court and his
convictions as an adult. Almost all of his cases
involve drugs and the rest of his cases also have the
gun as part of their factual pattern. As detailed
previously, the facts of [appellant’s] case clearly
indicated that he was a drug dealer and that he had
sold the fatal drugs to one of his users and that he
was in possession of the same batch of drugs labeled
“new arrival” with gold eagle emblem, and in fact,
texted the police that he had the same batch of
drugs as previously sold to the deceased victim.
This Court considered the impact upon the victim
and the impact upon the community in addition to
what would be [appellant’s] rehabilitative needs.
[Appellant] had numerous opportunities in the
Juvenile Court system and adult system to cease his
criminal activity but those periods of probation did
not deter [appellant] from continuing his drug
dealing. The impact upon the victim is obvious since
Brinkley died as a result of the heroin that was sold
to him. The impact upon the community is also
readily apparent since [appellant] was in possession
of a potentially fatal quantity of heroin. The
sentence imposed upon [appellant] took into
consideration all of the factors of the Sentencing
Code and was an appropriate sentence.
Trial court opinion, 2/11/16 at 8-9.
Where the sentencing court had the benefit of
a presentence investigation report (“PSI”), we can
assume the sentencing court “was aware of relevant
information regarding the defendant’s character and
weighed those considerations along with mitigating
statutory factors.” Commonwealth v. Devers, 519
Pa. 88, 101-02, 546 A.2d 12, 18 (1988). See also
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Commonwealth v. Tirado, 870 A.2d 362, 368
(Pa.Super. 2005) (stating if sentencing court has
benefit of PSI, law expects court was aware of
relevant information regarding defendant’s character
and weighed those considerations along with any
mitigating factors).
Moury, 992 A.2d at 171.
Here, the trial court acknowledged that it had read the pre-sentence
investigation report, so it is presumed that it considered all relevant factors.
Further, at the plea hearing, Rachel Newman (“Attorney Newman”), attorney
for the Commonwealth, described the evidence that would be presented by
the Commonwealth regarding the connection between Jeremy Brinkley and
appellant.
After Attorney Newman’s statement, the trial court asked Attorney
Herring, if he had any additions or corrections. Attorney Herring answered,
“No, Your Honor.” (Notes of testimony, 8/28/14 at 11.) The information
that Jeremy Brinkley died as the result of heroin purchased from appellant
was presented to the trial court. The trial court did not abuse its discretion
when it considered the circumstances of Jeremy Brinkley’s death when it
fashioned the sentence for appellant.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/26/2016
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