Com. v. Mendez-Acevedo, R. (memorandum)
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J-S11037-16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA v. RICARDO MENDEZ-ACEVEDO, Appellant : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1654 EDA 2015 Appeal from the Judgment of Sentence April 10, 2015 in the Court of Common Pleas of Northampton County, Criminal Division, No(s): CP-48-CR-0003861-2014 BEFORE: FORD ELLIOTT, P.J.E., OTT and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: Ricardo Mendez-Acevedo FILED APRIL 19, 2016 (“Mendez-Acevedo”) appeals from the judgment of sentence imposed following his negotiated guilty plea to attempted homicide.1 We affirm. Mendez-Acevedo was charged with attempted homicide and two counts of aggravated assault2 after shooting Michael Rivera in the face. On February 5, agreement. 2015, Mendez-Acevedo entered into a negotiated plea Mendez-Acevedo pled guilty to attempted homicide, and in exchange, the Commonwealth withdrew the aggravated assault charges. Mendez-Acevedo and the Commonwealth also agreed to a recommended sentence of 9 to 20 years in prison. The trial court deferred sentencing and ordered a pre-sentence investigation report (“PSI”). On April 10, 2015, after 1 18 Pa.C.S.A. § 901(a). 2 18 Pa.C.S.A. § 2702(a)(1), (4). J-S11037-16 reviewing the PSI, the trial court sentenced Mendez-Acevedo to the agreedupon prison term. On April 20, 2015, Mendez-Acevedo filed a Motion for Reconsideration of Sentence, which the trial court denied. Mendez-Acevedo subsequently filed a timely Notice of Appeal.3 On appeal, Mendez-Acevedo raises the following question for our review: “Did the trial [court] abuse [its] discretion by imposing an excessive sentence that failed to consider [Mendez-Acevedo’s] age, [] lack of prior record, family background and [] rehabilitative needs?” Brief for Appellant at 4. Mendez-Acevedo’s claim challenges the discretionary aspects of his sentence. See Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). “It is well-settled that, with regard to the discretionary aspects of sentencing, there is no automatic right to appeal.” Commonwealth v. Mastromino, 2 A.3d 581, 585 (Pa. Super. 2010). Here, Mendez-Acevedo entered into a negotiated plea agreement. Therefore, he cannot challenge the discretionary aspects of his sentence on appeal. See Commonwealth v. Reid, 117 A.3d 777, 784 (Pa. Super. 3 The trial court contends that the appeal is untimely, as the Notice of Appeal was filed over 30 days after the imposition of sentence. Trial Court Opinion, 7/1/15, at 5. However, Mendez-Acevedo filed a timely postsentence motion. See Pa.R.Crim.P. 720 720(A)(1). Mendez-Acevedo had 30 days from the denial of his Motion for Reconsideration of Sentence in which to file his Notice of Appeal. See Pa.R.Crim.P. 720(A)(2)(a); Commonwealth v. Capaldi, 112 A.3d 1242, 1244 (Pa. Super. 2015). Thus, Mendez-Acevedo’s appeal is timely. -2- J-S11037-16 2015) (holding that a challenge to the discretionary aspects of a negotiated sentence is unreviewable); see also Commonwealth v. Dalberto, 648 A.2d 16, 21 (Pa. Super. 1994) (stating that “in a negotiated plea agreement, where a sentence of specific duration has been made part of a plea bargain, it would clearly make a sham of the negotiated plea process for courts to allow defendants to later challenge their sentence….”).4 Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 4/19/2016 4 Furthermore, the trial court considered all relevant factors, and had the benefit of a PSI. Where a sentencing court is informed by a PSI, “it is presumed that the court is aware of all appropriate sentencing factors and considerations, and that where the court has been so informed, its discretion should not be disturbed.” Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009). -3-
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