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Commonwealth v. Broaden

August 3, 2009

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
RICHARD BROADEN, JR., APPELLANT



Appeal from the Judgment of Sentence September 20, 2007 In the Court of Common Pleas of Allegheny County Criminal at No. CP-02-CR-0013894-2006.

The opinion of the court was delivered by: Freedberg, J.

Petition for Reargument Filed August 12, 2009

BEFORE: LALLY-GREEN*fn1, POPOVICH, and FREEDBERG, JJ.

OPINION

¶ 1 This is an appeal from judgment of sentence entered by the Court of Common Pleas of Allegheny County after Appellant, Richard Broaden, Jr., pleaded guilty to a myriad of charges. We affirm.

¶ 2 On June 20, 2006, Appellant led police on a high speed chase, in the process forcing several cars off the road. Because of the danger that Appellant was causing to other drivers, the police slowed down and backed off the chase. Shortly thereafter, Appellant caused a multi-vehicle accident resulting in serious injuries to two victims. Appellant was arrested and charged with two counts of aggravated assault, 18 Pa.C.S.A. § 2702(a)(2), three counts of aggravated assault, 18 Pa.C.S.A. § 2702(a)(1), two counts of accidents involving death or personal injury, 75 Pa.C.S.A. § 3742(a), one count of fleeing or attempting to elude an officer, 75 Pa.C.S.A. § 3733, two counts of accident involving death or injury while not properly licensed, 75 Pa.C.S.A. § 3742.1(a), five counts of recklessly endangering another person ("REAP"), 18 Pa.C.S.A. § 2705, one count of accident involving damage to attended vehicle or property, 75 Pa.C.S.A. § 3742(a), one count of turning movements and required signals, 18 Pa.C.S.A. § 3334(a), one count of reckless driving, 75 Pa.C.S.A. § 3736(a), one count of one way roadways and rotary traffic islands, 75 Pa.C.S.A. § 3308(a), one count of driving while operating privileges suspended or revoked, 75 Pa.C.S.A. § 1543(a), and one count of unnecessary noise, LO § 601.04.

¶ 3 On June 21, 2007, Appellant entered into an open plea agreement in which the Commonwealth agreed to nolle pros two counts of aggravated assault and one count of REAP.*fn2 Appellant pleaded guilty to the remaining charges. There was no agreement regarding sentencing. Sentencing was deferred pending the completion of a pre-sentence report.

¶ 4 On August 16, 2007, the Commonwealth filed formal notice of its intent to seek a ten year mandatory minimum sentence for each of the aggravated assault counts pursuant to 42 Pa.C.S.A. § 9714.*fn3 The Commonwealth also filed formal notice of its intent to seek a mandatory two year sentence for committing an aggravated assault against an elderly person pursuant to 42 Pa.C.S.A. § 9717.*fn4

¶ 5 On September 20, 2007, Appellant was sentenced to two concurrent terms of ten to twenty years incarceration for the aggravated assault counts. Appellant was ordered to pay $18,638.46 in restitution and $200 in fines. No further penalty was imposed. During the sentencing hearing, Appellant objected to the imposition of the ten year mandatory sentence. See Notes of Testimony ("N.T. Sentencing"), 09/20/2007, at 12, 17-18.

¶ 6 On September 27, 2007, Appellant filed a motion to withdraw guilty plea, asserting that he was not aware that the Commonwealth would seek the mandatory minimum sentence and that his plea was not knowing, intelligent and voluntary. On August 27, 2008, Appellant's motion was denied by operation of law pursuant to Pa.R.Crim.P. 720(B)(3).

¶ 7 Appellant filed a notice of appeal on September 18, 2008. On October 15, 2008, the sentencing court ordered Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal within 25 days. Appellant timely filed a statement on November 3, 2008. On November 19, 2008, Appellant filed a supplemental statement. On December 8, 2008, Appellant filed a motion for leave of court to file a second supplemental statement. On December 9, 2008, the sentencing court denied Appellant's motion and filed a Pa.R.A.P. 1925(a) opinion.

¶ 8 On both December 16, 2008, and December 19, 2008, Appellant filed petitions with this Court seeking remand to the sentencing court in order for him to properly preserve the issues raised in his supplemental and second supplemental statements. This Court denied Appellant's petitions without prejudice. On March 2, 2009, Appellant filed his brief to this Court and reasserted his request for remand in order that he might properly preserve his appellate rights. On May 15, 2009, this Court granted Appellant's request and remanded this matter for Appellant to file a Pa.R.A.P. 1925(b) statement nunc pro tunc within 21 days and directed the sentencing court to file a Pa.R.A.P. 1925(a) opinion within 30 days thereafter.

¶ 9 On May 20, 2009, Appellant filed a Pa.R.A.P. 1925(b) statement nunc pro tunc, preserving the following issues: (1) whether the sentencing court abused its discretion in not granting Appellant's oral pre-sentence motion requesting to withdraw his guilty plea; and (2) whether the sentencing court abused its discretion in not granting Appellant's post-sentence motion to withdraw his guilty plea. The sentencing court filed a Pa.R.A.P. 1925(a) opinion on June 12, 2009 ("Supplemental Opinion").

ΒΆ 10 A decision regarding whether to accept a defendant's pre-sentence motion to withdraw a guilty plea is left to the discretion of the sentencing court. ...


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