Com. v. Aquino, D.

J-S41024-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DEMETRIUS AQUINO :
:
Appellant : No. 613 MDA 2020
Appeal from the Judgment of Sentence Entered June 10, 2019
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0005024-2017
BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STRASSBURGER, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED DECEMBER 23, 2020
Demetrius Aquino appeals the judgment of sentence entered following
his guilty plea to Second-Degree Murder, Robbery, Conspiracy, and Possession
of a Firearm with Altered Manufacturer’s Number.1 Aquino argues that the trial
court abused its discretion in denying his request to withdraw his plea and
challenges the discretionary aspects of his sentence. We affirm.
On June 10, 2019, Aquino pled guilty to killing the victim while
attempting to rob him. Additionally, at the time of the robbery, Aquino was
with two other people who had agreed to commit the robbery with him. At the
guilty plea hearing, the Commonwealth inquired as to Aquino’s understanding
of what it meant to plead guilty to the charges. See N.T., Guilty Plea Hearing,
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2502(b), 3701(a)(1)(i), 903, and 6110.2(a), respectively.
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6/10/19, at 2-3. It explained to Aquino that the Second-Degree Murder charge
required a sentence of life without parole that was non-negotiable. Id. at 2.
The Commonwealth also informed Aquino of the rights he was giving up by
pleading guilty, his limited appellate rights, and asked whether anyone had
forced or threatened him to plead guilty. He responded that no one had made
any such threat. Id. at 4-5. The trial court then explained to Aquino each
charge to which he was pleading guilty. Id. at 6-9. The court inquired whether
Aquino agreed with the facts to which he was pleading guilty:
THE COURT: That’s the allegation. Okay. Now, as far as the
criminal homicide, do you admit that you participated in a
felony of robbery and that Dion Walker was killed during
that felony?
[Aquino]: Yes, Your Honor.
THE COURT: And do you admit that you participated in the
felony of robbery, that you were actually committing a
robbery or attempting to commit a robbery when the death
of Mr. Walker occurred?
[Aquino]: Yes, Your Honor.
THE COURT: And do you admit that there was an agreement
between you and at least one of the other individuals, either
Chiara Snyder Harvey or Ricardo McClure, to commit this
robbery?
[Aquino]: Yes, Your Honor.
THE COURT: And do you admit that you had possession of
that particular firearm?
[Aquino]: Yes, Your Honor.
THE COURT: For the record, what was the firearm?
[Commonwealth]: It was a .45-caliber handgun.
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THE COURT: You had possession of the .45-caliber handgun
that had an altered or obliterated manufacturer’s number or
serial number. Do you admit that?
[Aquino]: Yes, Your Honor.
Id. at 9-10.
Following the above interaction between Aquino and the court, Aquino’s
counsel told the court that he was fine with going directly to sentencing and
had nothing additional to offer. Id. at 11. The trial court then gave Aquino an
opportunity to speak, and Aquino apologized to the victim’s family:
I wanted to apologize to the family. I mean, right is right
and wrong is wrong. I shouldn’t have did what I did. I
shouldn’t have been there. I can’t bring your son back, but
I just wanted to let y’all know I’m sorry for what happened,
whether you take it or leave it, it’s on y’all. I just wanted to
let you know that I am sorry.
Id. at 12.
After hearing from the victim’s family the trial court expressed its
opinion about the case prior to sentencing Aquino.
THE COURT: Very well. I wish to thank the members of the
[victim’s] family who are present today. I know it was very
difficult for mother and grandmother to get up and speak at
an occasion like this, but I think it’s important that they did
because I think it’s important for [Aquino] to hear how [the
victim’s] death has affected [the victim’s] family. It’s one
thing to imagine what the affect is. It’s another thing to hear
it described in person and the affect it has on parents,
grandparents, siblings, and so forth. There’s no doubt that
this case causes an emotional loss and an emotional --
severe emotional impact. Not only for Dion’s family but for
[Aquino’s] family as well.
We have one young man whose life has been lost, taken
needlessly. There’s no question about that. But we have
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another young man who is now faced with the prospect of
spending the rest of his life in a state correctional institution.
Not pleasant for either side, obviously. So there is a lot of
pain and a lot of sorrow on both sides of the courtroom. So
I have sympathy for both families that suffer because of the
events that occurred on that street corner a year and a half,
two years ago, and played out here in court today in terms
of a sentencing. So it is sad all the way around. It is
emotional all the way around. It is a devastating loss all the
way around.
And to [the victim’s] family, I can only offer my deepest
sympathy for your loss, and I hope that being here today
and seeing the case resolved in some fashion -- it will never
be 100 percent resolved in your minds. I know that. You’ll
live with this loss of [the victim] for the rest of your lives,
and I understand that and I appreciate that. But I hope
today brought you at least some closure in this case and will
allow you to continue to grieve as you will for the rest of
your life, I know, but to move forward in all your family
matters in raising the family and so forth. So, again, I very
much appreciate the fact that you’re here today.
And, Mr. Aquino, I'm not sure what else I can say other than
you made a terrible decision that day to engage in this
felony and to commit a robbery, whether it was for drugs or
money or a combination of both, it still was a senseless act.
The shooting of [the victim] was just -- it was just
unnecessary. It was needless, didn’t have to happen. And
the robbery didn’t have to happen in the first place. And so
whatever motivation you had to even arrange this particular
criminal episode was just a very bad and a very wrong
decision that has had tremendous consequences to [the
victim’s] family and to you and your family as well.
Id. at 16-18. The trial court then imposed the following sentence: life
imprisonment without parole for Second-Degree Murder; a concurrent terms
of six to 12 years’ incarceration for Robbery and Conspiracy; and a consecutive
term of four to eight years’ incarceration for the firearms charge. Aquino did
not file a post-sentence motion or a direct appeal.
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In December 2019, Aquino filed a Post Conviction Relief Act (“PCRA”)2
petition requesting that the court grant him a nunc pro tunc direct appeal.
See PCRA Petition, filed 12/27/19, at ¶ 1. The trial court appointed counsel,
and following an evidentiary hearing, reinstated Aquino’s right to file a direct
appeal on March 9, 2020, and gave him 30 days to file a notice of appeal. The
court did not reinstate his post-sentence motions rights.
Even though the court did not grant him renewed post-sentence motion
rights, Aquino filed a post-sentence motion asking to withdraw his guilty plea.
His motion also contended that his sentence for the firearm charge was
excessive and unreasonable because the trial court did not consider his
rehabilitative needs. See Post-Sentence Motion, filed 4/7/20. The trial court
denied the motion and Aquino appealed. See Order, dated 4/9/20. Although
he filed his appeal more than 30 days after the order reinstating his direct
appeal rights, we treat the appeal as timely pursuant to the Pennsylvania
Supreme Court’s April 28, 2020 order extending filing deadlines due to the
coronavirus pandemic. See In re Gen. Statewide Judicial Emergency, 230
A.3d 1015, 1017 (Pa. 2020) (per curiam order).3
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2 42 Pa.C.S.A. §§ 9541-9546.
3 The order provides, in relevant part: “In all events, legal papers or pleadings
(other than commencement of actions where statutes of limitations may be in
issue) which are required to be filed between March 19, 2020, and May 8,
2020, generally SHALL BE DEEMED to have been filed timely if they are filed
by close of business on May 11, 2020.” In re Gen. Statewide Judicial
Emergency, 230 A.3d at 1017.
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Aquino presents the following issues:
1. Whether the trial court abused its discretion when it
denied [Aquino’s] post-sentence motion to withdraw his
guilty plea?
2. Whether the trial court abuse[d] its discretion when it
imposed a sentence contrary to the fundamental norms
underlying the sentencing process when it imposed a
sentence without consideration of the factors set forth in
42 Pa.C.S. [§] 9721(B)?
Aquino’s Br. at 8 (suggested answers omitted).
In his first issue, Aquino claims that the trial court erroneously denied
his request to withdraw his guilty plea. He maintains that the trial court should
have granted his request because there was no written guilty plea colloquy
and alleges that he did not know that the hearing was for purposes of pleading
guilty until he arrived in the courtroom. This claim is meritless as Aquino failed
to preserve this issue below, because his post-sentence motion was untimely.
Following the imposition of sentence, a defendant has 10 days to file a
post-sentence motion. Pa.R.Crim.P. 720(A)(1). A post-sentence motion filed
beyond this deadline is untimely. See Commonwealth v. Patterson, 940
A.2d 493, 498 (Pa.Super. 2007). A defendant may ask the trial court for leave
to file a post-sentence motion nunc pro tunc, but the defendant must seek
such relief within 30 days from the imposition of sentence and the court must
expressly grant such relief. Commonwealth v. Capaldi, 112 A.3d 1242,
1244 (Pa.Super. 2015). In other words, the fact that the trial court may have
entertained a late post-sentence motion is insufficient – the trial court must
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explicitly grant the defendant permission to file the late post-sentence motion.
“The trial court’s resolution of the merits of the late post-sentence motion is
no substitute for an order expressly granting nunc pro tunc relief.”
Commonwealth v. Dreves, 839 A.2d 1122, 1129 (Pa.Super. 2003) (en
banc).
Here, Aquino pled guilty on June 10, 2019, and therefore had until June
20, 2019, to file a timely post-sentence motion. After that time, Aquino had
until July 10, 2019, to request nunc pro tunc relief to file his post-sentence
motion. He did not file the instant post-sentence motion until April 7, 2020,
and it therefore was patently untimely. The fact that the trial court addressed
Aquino’s motion does not change our conclusion. See Dreves, 839 A.2d at
1129. The record is clear that Aquino’s request for nunc pro tunc relief in his
PCRA petition was limited solely to his direct appeal rights. Aquino’s post-
sentence motion is untimely and therefore we do not address the merits of his
claim alleging that the trial court erred in denying Aquino’s motion to withdraw
his plea. See Patterson, 940 A.2d at 498.
Next, Aquino claims that the trial court imposed an excessive sentence
when it sentenced him to four to eight years in prison for the firearms offense.
He argues that the trial court failed to consider his rehabilitative needs.
Aquino’s issue is a challenge to the discretionary aspects of his sentence,
and there is no automatic right to appellate review of such a claim. See
Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa.Super. 2013). Rather,
before we may consider such a challenge, we must first determine whether:
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(1) the appeal is timely; (2) the appellant preserved the issue; (3) the
appellant's brief includes a Pa.R.A.P. 2119(f) statement; and (4) the appellant
has raised a substantial question. See id. To preserve a challenge to
discretionary aspects of sentence, the defendant must raise the challenge
either at the sentencing hearing or in a post-sentence motion.
Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa.Super. 2005). A failure to
do so results in waiver of the issue. Id.In the instant case, Aquino’s appeal is timely but he did not preserve
the challenge to his sentence below. He did not challenge his sentence at the
sentencing hearing or in a timely post-sentence motion. He therefore has
waived review of this issue.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2020
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