Opinion
J-S55014-18 No. 3217 EDA 2017
12-17-2018
COMMONWEALTH OF PENNSYLVANIA v. ANGEL RAMOS, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence June 13, 2017
In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0005790-2016 BEFORE: OLSON, J., STABILE, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY OLSON, J.:
Appellant, Angel Ramos, appeals from the judgment of sentence entered on June 13, 2017, as made final by the denial of his post-sentence motion on September 11, 2017. We affirm, in part, vacate, in part, and remand for further proceedings consistent with this memorandum.
The trial court aptly summarized the factual background and procedural history in this case as follows.
[On March 6, 2017, Appellant appeared before the trial court to enter a guilty plea at docket number 5790-2016. At that docket number,] Appellant pled guilty to two counts of aggravated assault, possession of an instrument of crime, two counts of
indecent assault, and terroristic threats. [] In the course of Appellant's guilty plea [at] criminal information No. 5790-2016, he agreed that the following recitation of the facts was accurate:
On June 7th of 2016, [B.D.] went to the Planet Fitness located at the Center Point Shopping Center on Street Road in Warminster, Bucks County.
Following her workout, she walked alone to her car and got into it to leave. Her car door was suddenly opened and an unknown male, subsequently identified as [Appellant] forced his way [into the vehicle]. He was holding a knife with a 4 to 5 inch blade. He held the knife to her neck. [B.D.] began to scream[,] to which [Appellant] stated he would kill her if she did not stop screaming.
With the knife to her throat, [Appellant] began to kiss [B.D.] on the face and neck and he ripped her shirt. He then placed his hand on her breast and started to rub her on the outside of her clothing. [B.D.] began to scream for help. She attempted to grab the knife from him. The defendant then yelled, you are going to die, bitch, and told her he would kill her. He began making stabbing motions towards her as she struggled under him.
The knife then struck the back of [B.D.'s] head and neck area. She was able to get away from under [Appellant] and ran bleeding towards the Planet Fitness. She was taken to Abington Hospital and treated for lacerations to the back of her neck and to her hand.
Several witnesses from the Planet Fitness parking lot observed [Appellant] run from the area of the victim's car towards Street Road. Warminster Police were flagged down by the pedestrians after they observed [Appellant] in the shopping area.
Police detained [Appellant] and observed blood on his hands and shirt. Swabs of this blood were sent to Bode Cellmark DNA Lab along with reference samples from [] [B.D.]. The blood on [Appellant's] hands and clothing matched that of [] [B.D.].
N.T. [Guilty Plea], 3/6/17, pp. 30-34.
During the presentation of the factual basis for the plea, [the trial court] asked Appellant if there was anything he wished to correct or add, and he declined. Id. at 31-32. He advised the [trial c]ourt that he had previously discussed the facts with counsel. Id. At the conclusion of Commonwealth's summary, [Appellant] also confirmed that the district attorney had accurately stated the facts. Id. at 31-32, 34.
[Prior to the entry of Appellant's guilty plea on March 6, 2017, the trial court] administered an oral colloquy to all defendants present on that date, including Appellant. In the course of this initial colloquy, Appellant acknowledged that he was entering his plea voluntarily and of his own free will, and that he did not receive any promises as to sentence or threats from anyone meant to force a guilty plea. Id. at 2-3. Appellant was advised of his right to a jury trial and the presumption of innocence throughout trial. Id. at 3-6. Following this initial colloquy, [the trial c]ourt discussed the nature of the charges to which [] Appellant was pleading guilty. Id. at 11-20. During this discussion, Appellant interjected that he was "angry [and] enraged" because he did not remember the night of the incident due to being intoxicated. Id. at 14-15. Appellant further stated that he wanted to "get it over with." Id. at 16. In light of these statements, [the court] recessed and instructed Appellant's counsel to review the evidence with Appellant an additional time and answer any further questions Appellant may have had. Id. at 17-18. When [the court] reconvened, Appellant acknowledged that he still wished to plead guilty after going over the evidence with his attorney. Id. at 18-19. Prior to the proceeding, Appellant answered questions on his guilty plea colloquy form. Id. at 29. He reviewed the form with counsel, initialed each page, signed the form, and acknowledged that he answered all of counsel's questions honestly. Id. The form was admitted into evidence. Id. at 30.
Further, th[e trial c]ourt discussed the range of possible sentences for each offense with Appellant. Id. at 11-13, 20-23. The
maximum sentence for each offense was as follows: 20 years' incarceration for aggravated assault causing serious bodily injury, ten years' incarceration for aggravated assault causing bodily injury with a deadly weapon, and five years' incarceration each for possession of an instrument of crime, indecent assault [by] forcible compulsion, indecent assault by threat of forcible compulsion, and terroristic threats. Id. [The court] also discussed the sentencing guidelines for Count 2, aggravated assault causing serious bodily injury, which called for 78 to 90 months in the standard range, 102 months in the aggravated range, and 66 months in the mitigated range. Id. at 23. After finding that Appellant entered a knowing, voluntary and intelligent plea, [the court] deferred sentencing for an assessment before the Sexual Offender Assessment Board ("SOAB") pursuant to the Sexual Offender Registration and Notification Act ("SORNA"). 42 Pa.C.S.[A.] § 9799 et seq.
On June 13, 2017, [the trial court] held a sentencing hearing. N.T. [Sentencing,] 6/13/17, [at] 3. Prior to the hearing, the SOAB submitted an evaluation finding that Appellant met the criteria for classification as a sexually violent predator ("SVP"). Id. at 4. The report additionally diagnosed Appellant with anti-social personality disorder. Id. At the hearing, Appellant waived his right to an SVP hearing, and th[e trial c]ourt found that Appellant met the criteria to be classified as an SVP. Id. at 7-8.
Additionally, th[e trial c]ourt heard testimony from Appellant, who apologized to the victim and described his past struggles with drug addiction and criminal behavior that began after the death of his one-year old son in 1987 or 1988. Id. at 24-26. Despite his expressed frustration with "not knowing" what happened during the prior proceeding, Appellant again admitted his responsibility for the crime:
And I am so sorry to the victim. I wish she was here. I'm really, really sorry. I am responsible for that because as the DNA shows I'm responsible, and when they showed me, the detectives showed me that the DNA was mine, so I am - I
want to take responsibility for that because my DNA would have never been in that place when this happened if I was not there.
Id. at 24.
[Evidence introduced at Appellant's sentencing hearing established that he] has an extensive criminal history. In July 1987, Appellant was convicted of possession with intent to deliver a controlled substance and received two years' probation. [ Id. at] 10. In July 1988, Appellant was convicted of receiving stolen property, graded as a felony of the third degree, and received a sentence of time-served to 23 months' probation. Id. at 10-11. In January 1991, Appellant was convicted in three separate cases for possession with intent to deliver a controlled substance. Id. at 11. Appellant received a one- to two-year sentence on the first charge, and a concurrent four- to eight-year sentence on the second and third charges. Id. In February 1991, Appellant was convicted of possession with intent to deliver a controlled substance and received a sentence of 18 to 36 months [of incarceration]. Id. In October 1995, Appellant was convicted of possession with intent to deliver a controlled substance and received a sentence of [11 1/2] to 23 months. Id. In April 2002, Appellant was convicted of possession with intent to deliver a controlled substance and received a three- to seven-year sentence. Id. On that same date, Appellant pled guilty to receiving stolen property and carrying a firearm without a license, and received a concurrent three-to seven-year sentence. Id. Additionally, on March 3, 2015, [an order granting] a petition for protection from abuse [was entered] against Appellant[.]
Following testimony, [the trial court] sentenced Appellant as follows: ten to 20 years' incarceration on Count 2, aggravated assault causing serious bodily injury; two and one-half to five years' incarceration on Count 6, possession of an instrument of crime; two and one-half to five years' incarceration on Count 9, indecent assault by forcible compulsion; and two and one-half to five years' incarceration on Count 11, terroristic threats. Id. at 33. [The court] ordered that the above sentences run consecutively with one-another, resulting in an aggregate sentence of [17½] to 35 years' incarceration. [The court] imposed no further penalty for Counts 3 and 10, and granted the Commonwealth's request to nol pros Counts 1, 4, 5, 7 and 8. Id. at 33-34.
In sentencing Appellant, [the trial court] departed from the above-referenced sentencing guidelines due to the gravity of the offense, its effect on the victim, the need for community protection, and the Appellant's rehabilitative needs. [The court] considered Appellant's "history not only of convictions but of violence" and the fact that Appellant served state sentences and had opportunities for treatment. Id. at 32. Regarding the nature of the offense, [the court] considered that the victim was "not only physically assaulted, these were knife blows to the head. In addition to that there were multiple verbal—violent, verbal threats. And furthermore she was sexually assaulted." Id. [The court] summarized Appellant's crimes and [its] reasoning as follows:
This is a violent and cruel episode, and that anything less than a significant sentence, given the fact that [Appellant] has already served lengthy sentences, will not only fail to protect the community, but it will not address [Appellant's] rehabilitative needs[,] as identified in the assessment, meaning the diagnoses of anti-social traits—personality. Id. at 32-33. Further, [the court] considered [] Appellant's age and the impact that his son's death had on his life. Id. at 31. Finally, in discussing the SOAB report, [the court] specified that [it] would consider the report in imposing sentence, but would specifically disregard any allegations in the report that did not amount [to] a conviction.
Trial Court Opinion, 12/26/17, at 1-7 (order of recitation amended; miscellaneous capitalization omitted).
Id. at 8-9, 32.
On July 23, 2017, Appellant filed a [post-sentence motion] for reconsideration of sentence. On September 11, 2017, [the trial c]ourt held a hearing and denied Appellant's motion.
Count 2: 18 Pa.C.S. § 2702(a)(1); Count 3: 18 Pa.C.S. § 2702(a)(4).
Count 6: 18 Pa.C.S. § 907(a).
Count 9: 18 Pa.C.S. § 3126(a)(2); Count 10: 18 Pa.C.S. § 3126(a)(3).
Count 11: 18 Pa.C.S. § 2706(a)(1).
During victim impact testimony offered at a separate docket number, Appellant interrupted the sentencing proceedings and expressed his desire to withdraw his guilty plea to that offense. Id. at 17-20. Appellant, however, did not withdraw his guilty plea at criminal information 5790-2016.
Appellant's brief presents the following issues for our consideration.
Whether [] Appellant's guilty plea was knowing, intelligent and voluntary?
Whether the trial court abused its discretion in sentencing [Appellant] to a sentence of [not less than] 17½ to [not more than] 35 years, which exceeded the standard and aggravated guideline ranges for the crimes [to which Appellant pled guilty?]Appellant's Brief at 7.
Whether the Sexual Violent Predator (SVP) designation as provided under 42 Pa.C.S.A. § 9799 is unconstitutional pursuant to Commonwealth v. Butler , [173 A.3d 1212 (Pa. Super. 2018), appeal granted, 190 A.3d 581 (Pa. 2018)] and Commonwealth v. Muniz , 164 A.3d 189 (Pa. 2017)?
We have carefully reviewed the certified record, the submissions of the parties, and the opinion of the trial court. Based upon our review, we conclude that the trial court correctly held that Appellant entered a valid guilty to the charges lodged at CP-09-CR-0005790-2016. Moreover, because the trial court has adequately and accurately addressed the validity of Appellant's guilty plea, we adopt the trial court's opinion on this issue as our own. See Trial Court Opinion, 12/26/17, at 9-10. In addition, we conclude that the trial court did not abuse its discretion in fixing Appellant's sentence and we again adopt the trial court's apt discussion of this claim. See Id. at 11-13. As a final matter, we concur in the trial court's conclusion that Appellant's SVP designation and registration requirements are unconstitutional under this Court's decision in Commonwealth v. Butler , 173 A.3d 1212 (Pa. Super. 2018), appeal granted, 190 A.3d 581 (Pa. 2018). Accordingly, we vacate Appellant's SVP designation and remand this case for the purpose of issuing appropriate notice under 42 Pa.C.S.A. § 9799.23 as to Appellant's tier-based registration obligations. Because we have adopted the trial court's opinion as our own, we direct the parties to include a copy of the trial court's opinion with all future filings regarding our disposition of this appeal. The victim's name shall be redacted from any copy of the trial court's opinion that is filed in the future.
To the trial court's conclusion that Appellant was well aware of both the nature and consequences of his guilty plea, we add only that, unlike the situation before this Court in Commonwealth v. Hart , 174 A.3d 660 (Pa. Super. 2017), in which we invalidated a guilty plea where the defendant was not advised of SORNA's registration requirements either at the time of his plea or at sentencing, Appellant here was thoroughly colloquied, both orally and in writing, as to the sex offender registration requirements that attached to his convictions.
For the record, we note that Appellant properly invoked our jurisdiction to consider his challenge to the discretionary aspects of his sentence by filing a timely notice of appeal, preserving his claims through a post-sentence motion and a concise statement, and raising a substantial question for our review. See Commonwealth v. Allen , 24 A.3d 1058, 1064 (Pa. Super. 2011) (listing four-part inquiry for preserving discretionary sentencing challenges); see also Commonwealth v. Felmlee , 828 A.2d 1105, 1108 (Pa. Super. 2003) (claim that trial court erred by imposing aggravated range sentence without consideration of mitigating circumstances raises a substantial question).
We note that, on July 31, 2018, the Pennsylvania Supreme Court granted a petition for allowance of appeal in Butler to address the following issue:
Whether the Superior Court of Pennsylvania erred in vacating the trial court's Order finding [Respondent] to be [a Sexually Violent Predator ("SVP") ] by extrapolating the decision in [ Commonwealth v. Muniz , 640 Pa. 699, 164 A.3d 1189 (2017),] to declare SVP hearings and designations unconstitutional under 42 Pa.C.S. § 9799.24(e)(3).Commonwealth v. Butler , 2018 WL 3633945, at *1 (Pa. 2018).
Judgment of sentence affirmed, in part, and vacated, in part. Case remanded for further proceedings consistent with this memorandum. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/17/18
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