J-S43005-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

MICHAEL VINCENT FERRARA

Appellant No. 1187 WDA 2017

Appeal from the Judgment of Sentence Entered July 11, 2017

In the Court of Common Pleas of Erie County

Criminal Division at No.: CP-25-CR-0002883-2016

BEFORE: STABILE, DUBOW, NICHOLS, JJ.

MEMORANDUM BY STABILE, J.: FILED OCTOBER 22, 2018

Appellant Michael Vincent Ferrara appeals from the July 11, 2017 

judgment of sentence entered in the Court of Common Pleas of Erie County 

(“trial court”), following his guilty plea to aggravated indecent assault, criminal 

trespass and possession of an instrument of crime.

1

 Upon review, we affirm

in part and vacate in part.

The facts and procedural history of this case are uncontested. As 

summarized by the trial court:

On July 10, 2016, at approximately 5:45 a.m., Appellant 

entered the residence of [S.M.] in Albion, Pennsylvania through 

an unlocked window. The victim was sleeping when Appellant 

entered the residence. [S.M.] woke to find Appellant lying on top 

of her, touching her vagina and holding a knife to her neck. 

Following a brief struggle, the victim chased Appellant from the 

residence. Appellant dropped the knife to the floor as he fled. By 

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1 18 Pa.C.S.A. §§ 3125(a)(4), 3503(a)(1)(ii), and 907(a), respectively. 
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information filed September 22, 2016, Appellant was charged as 

follows:

Count One: Burglary

Count Two: Aggravated Indecent Assault

Count Three: Criminal Trespass

Count Four: Possession of Instruments of Crime

Count Five: Indecent Assault

On October 6, 2016, Appellant entered a guilty plea at Count 

Two to Simple Assault which had been amended from Aggravated 

Indecent Assault, and Count Three, Criminal Trespass. Counts 

One, Four and Five were nolle prossed. 

On November 4, 2016, the Commonwealth filed a Motion to 

Vacate the Guilty Plea. In sum, the Commonwealth alleged that 

there was no valid plea agreement [because a “clerical error,” 

caused the plea sheet to include a Count for Simple Assault 

instead of Aggravated Indecent Assault]. On November 7, 2016, 

the [trial court] granted the Commonwealth’s Motion.2

On January 26, 2017, Appellant entered [into another] 

guilty plea to Counts Two, Three and Four as originally charged. 

Counts One and Five were nolle prossed. On January 26, 2017, 

the [trial court] ordered the sexually violent predator (SVP) 

assessment.

On July 11, 2017, following a hearing, the [trial court] 

designated Appellant as a sexually violent predator. Appellant 

was sentenced in the standard range of the sentencing guidelines 

to an aggregate [term] of seven to fourteen years of incarceration 

as follows:

Count Two: Aggravated Indecent Assault – five to ten 

years of incarceration, consecutive to any other sentence.

Count Three: Criminal Trespass – one to two years of 

incarceration, consecutive to Count Two.

Count Four: Possession of Instruments of Crime – one to 

two years of incarceration, consecutive to Count Three.

On July 20, 2017, Appellant filed post-sentence motions 

requesting the [trial court] to vacate the guilty plea and 

Appellant’s designation as a sexually violent predator and/or to 

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2 Appellant did not appeal the grant of the Commonwealth’s motion to vacate 

the guilty plea.
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reduce the sentence. On August 7, 2017, the Commonwealth filed 

a response. On August 10, 2017, the [trial court] denied the postsentence motions.

On August 14, 2017, Appellant filed a notice of appeal from 

the judgment of sentence. On August 21, 2017, the [trial court] 

directed Appellant to file a [Pa.R.A.P.] 1925(b) [statement of 

errors complained of on appeal]. On August 23, 2017, Appellant 

filed a [Rule 1925(b) statement]. 

Trial Court Opinion, 12/4/17, at 1-3 (unnecessary capitalizations, footnotes 

and internal citations omitted). In response, the trial court issued a Pa.R.A.P. 

1925(a) opinion, concluding that Appellant’s assertions of error merit no relief.

On appeal, Appellant raises three issues for our review:

[I.] Whether the trial court erred in granting the Commonwealth’s 

motion to vacate [] Appellant’s guilty plea?

[II.] Whether the trial court erred in finding [] Appellant to be a 

sexually violent predator by clear and convincing evidence?

[III.] Whether the trial court abused its discretion in sentencing [] 

Appellant and whether that . . . sentence is manifestly excessive, 

clearly unreasonable and inconsistent with the objectives of the 

sentencing code?

Appellant’s Brief at 3 (unnecessary capitalizations omitted). 

We address Appellant’s claims seriatim. Appellant first argues that the 

trial court erred in granting the Commonwealth’s motion to vacate the October 

6, 2016 guilty plea. Based on our review of the record, we need not address 

the merits of this claim. As mentioned earlier, not only did Appellant fail to 

challenge the trial court’s grant of the Commonwealth’s motion to vacate the 

October 6, 2016 guilty plea, but he subsequently entered into a new guilty 

plea on January 26, 2017, on which the instant judgment of sentence was 

entered. In other words, because Appellant executed a new guilty plea on 
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January 26, 2017, he waived all non-jurisdictional challenges. Indeed, it is 

settled that by entering a guilty plea, a defendant waives his right to challenge 

on direct appeal all non-jurisdictional defects, except the legality of the 

sentence and the validity of the plea. Commonwealth v. Luketic, 162 A.3d 

1149, 1159 (Pa. Super. 2017). Accordingly, we cannot review the trial court’s 

grant of the Commonwealth’s motion to vacate the October 6, 2016 guilty 

plea. 

Appellant next argues that, under Commonwealth v. Butler, 173 A.3d 

1212 (Pa. Super. 2017), appeal granted, No. 47 WAL 2018, 2018 WL 

3633945 (Pa. filed July 31, 2018), his SVP designation is unconstitutional.3 

As this Court has explained:

Butler applied Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 

2017), which held that the sexual offender requirements under 

the Sexual Offender Registration and Notification Act, including its 

SVP framework, constitute punishment. Butler determined that, 

as a result of Muniz, the SVP procedure is subject to the 

constitutional requirement that the facts constituting that 

punishment must be found by a fact-finder beyond a reasonable 

doubt. Thus, 42 Pa.C.S.A. § 9799.24(e)(3), which requires the 

trial court to find the relevant facts by clear and convincing 

evidence, was deemed unconstitutional. Id. at 1218.

Commonwealth v. Tighe, 184 A.3d 560, 583 (Pa. Super. 2018). 

Here, the Commonwealth concedes that Butler renders Appellant’s SVP 

designation under SORNA illegal. We agree with both parties that Butler

controls. Therefore, we vacate the July 11, 2017 order declaring Appellant as 

SVP under SORNA, and remand this matter to the trial court to determine 

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3

In light of our disposition, we need not address Appellant’s argument 

challenging the sufficiency of the evidence underlying his SVP designation. 
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what registration requirements apply to Appellant, and to provide him proper 

notice thereof.

Nonetheless, the Commonwealth invites us to uphold Appellant’s SVP 

designation under the General Assembly’s recent amendments to SORNA in 

response to Butler and Muniz. Commonwealth’s Brief at 5. Indeed, on 

February 21, 2018, the General Assembly amended SORNA. See Act of Feb. 

21, 2018, P.L. 27, No. 10 (“Act 10”). Act 10 amended several existing 

provisions of SORNA, and also added several new sections found at 42 

Pa.C.S.A. §§ 9799-42, 9799.51-9799-75. More recently, Governor Wolf 

signed new legislation striking the Act 10 amendments and reenacting new 

SORNA provisions, effective June 12, 2018. See Act of June 12, 2018, P.L. 

1952, No. 29. We, however, decline to entertain the Commonwealth’s Act 10 

argument, because Appellant was not sentenced under Act 10 or its recent 

revisions when he was designated as an SVP on July 11, 2017. Accordingly, 

any discussion or analysis of Act 10 or its revisions in the instant appeal would 

be premature. 

We lastly address Appellant’s argument that the trial court abused its 

discretion in sentencing him to seven to fourteen years’ imprisonment.4 In 

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4 When reviewing a challenge to the trial court’s discretion, our standard of 

review is as follows:

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal 

absent a manifest abuse of discretion. An abuse of discretion is 

more than just an error in judgment and, on appeal, the trial court 

will not be found to have abused its discretion unless the record 
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support of his argument, Appellant points out that his aggregate sentence is 

manifestly excessive because the trial court ordered his sentences to run 

consecutively. He also argues that, in fashioning his sentence, the trial court 

failed to take into account mitigating factors. Appellant’s Brief at 10-11. 

As noted earlier, “when a defendant enters a guilty plea, he or she 

waives all defects and defenses except those concerning the validity of the 

plea, the jurisdiction of the trial court, and the legality of the sentence 

imposed.” Commonwealth v. Stradley, 50 A.3d 769, 771 (Pa. Super. 2012) 

(citation omitted). “Our law presumes that a defendant who enters a guilty 

plea was aware of what he was doing. He bears the burden of proving 

otherwise.” Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 

2011) (citation omitted). “However, when the plea agreement is open, 

containing no bargained for or stated term of sentence, the defendant will not 

be precluded from appealing the discretionary aspects of h[is] sentence.”5 

Commonwealth v. Roden, 730 A.2d 995, 997 n.2 (Pa. Super. 1999) 

(citation omitted).

It is well-settled that “[t]he right to appeal a discretionary aspect of 

sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215, 1220 

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discloses that the judgment exercised was manifestly 

unreasonable, or the result of partiality, prejudice, bias, or ill-will.

Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012) (quoting 

Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super. 2002)), 

appeal denied, 64 A.3d 630 (Pa. 2013). 

5 The record in this case reveals that Appellant entered into an open guilty 

plea.
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(Pa. Super. 2011). Rather, where an appellant challenges the discretionary 

aspects of a sentence, an appellant’s appeal should be considered as a petition 

for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. 

Super. 2007). As we stated in Commonwealth v. Moury, 992 A.2d 162 (Pa. 

Super. 2010):

An appellant challenging the 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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 

2006)). Whether a particular issue constitutes a substantial question about 

the appropriateness of sentence is a question to be evaluated on a case-bycase basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 

2001), appeal denied, 796 A.2d 979 (Pa. 2002). 

Here, Appellant has satisfied the first three requirements of the fourpart Moury test. Appellant filed a timely appeal to this Court, preserved the 

issue on appeal through his post-sentence motions, and included a Pa.R.A.P. 
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2119(f) statement in his brief.6 We, therefore, need to determine only if 

Appellant’s sentencing issues raise a substantial question. 

The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825, 

828 (Pa. Super. 2007). We have found that a substantial question exists 

“when the appellant advances a colorable argument that the sentencing 

judge’s actions were either: (1) inconsistent with a specific provision of the 

Sentencing Code; or (2) contrary to the fundamental norms which underlie 

the sentencing process.” Commonwealth v. Phillips, 946 A.2d 103, 112 

(Pa. Super. 2008) (citation omitted), appeal denied, 964 A.2d 895 (Pa. 

2009). 

It is settled that this Court does not accept bald assertions of sentencing 

errors. See Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super. 

2006). We consistently have recognized that bald excessiveness claims 

premised on imposition of consecutive sentences do not raise a substantial

question for our review. See Commonwealth v. Caldwell, 117 A.3d 763, 

769 (Pa. Super. 2015) (en banc) (stating, “[a] court’s exercise of discretion in 

imposing a sentence concurrently or consecutively does not ordinarily raise a 

substantial question[ ]”), appeal denied, 126 A.3d 1282 (Pa. 2015); see 

also Commonwealth v. Ahmad, 961 A.2d 884, 887 n.7 (Pa. Super. 2008); 

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6 Rule 2119(f) provides that “[a]n appellant who challenges the discretionary 

aspects of a sentence in a criminal matter shall set forth in his brief a concise 

statement of the reasons relied upon for allowance of appeal with respect to 

the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f). 
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Commonwealth v. Pass, 914 A.2d 442, 446-47 (Pa. Super. 2006). 

Appellant here claims only that, because the trial court ordered his sentences 

to run consecutively, his aggregate sentence was harsh and excessive. 

Consistent with the foregoing cases, we conclude that Appellant failed to raise 

a substantial question with respect to his excessiveness claim premised on the 

imposition of consecutive sentences. See Commonwealth v. Fisher, 47 

A.3d 155, 159 (Pa. Super. 2012) (“[A] bald assertion that a sentence is 

excessive does not itself raise a substantial question justifying this Court’s 

review of the merits of the underlying claim.”), appeal denied, 62 A.3d 378 

(Pa. 2013); see also Commonwealth v. Bromley, 862 A.2d 598, 604 (Pa. 

Super. 2004) (explaining defendant did not raise a substantial question by 

merely asserting sentence was excessive when he failed to reference any 

section of Sentencing Code potentially violated by the sentence), appeal 

denied, 881 A.2d 818 (Pa. 2005). 

Even if we were to determine that Appellant’s discretionary aspect of 

sentencing claim raised a substantial question, we still would conclude that he 

is not entitled to relief. “Although Pennsylvania’s system stands for 

individualized sentencing, the court is not required to impose the ‘minimum 

possible’ confinement.” Moury, 992 A.2d at 171 (citation omitted). 

“Generally, Pennsylvania law affords the sentencing court discretion to impose 

its sentence concurrently or consecutively to other sentences being imposed 

at the same time or to sentences already imposed. Any challenge to the 

exercise of this discretion ordinarily does not raise a substantial question.” 
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Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013), appeal 

denied, 77 A.3d 1258 (Pa. 2013); see also 42 Pa.C.S.A. § 9721(a) 

(providing that the court may impose sentences “consecutively or 

concurrently”); Commonwealth v. Johnson, 873 A.2d 704, 709 n.2 (Pa. 

Super. 2005) (noting that challenges to the trial court’s discretion to impose 

consecutive or concurrent sentences ordinarily does not raise a substantial 

question), appeal denied, 887 A.2d 231 (Pa. 2005); Commonwealth v. 

Hoag, 665 A.2d 1212, 1214 (Pa. Super. 1995) (stating that an appellant is 

not entitled to a “volume discount” for his crimes by having all sentences run 

concurrently). “The imposition of consecutive, rather than concurrent, 

sentences may raise a substantial question in only the most extreme 

circumstances, such as where the aggregate sentence is unduly harsh, 

considering the nature of the crimes and the length of imprisonment.” Moury, 

992 A.2d at 171-72 (citation omitted).

Instantly, Appellant seems to request a volume discount for pleading 

guilty to multiple crimes, because he claims that he has accepted 

responsibility, spared the victim the trauma of trial, and cooperated with the 

Commonwealth throughout the case. Appellant’s Brief at 11. Beyond this,

Appellant articulates no other reasons why the consecutive sentences in this 

case are harsh and excessive. Moreover, Appellant does not argue that his 

aggregate sentence of seven to fourteen years’ imprisonment represents an 

“extreme circumstance.” On the contrary, Appellant acknowledges that his 

sentence for each crime was in the standard range of the guidelines. Id. 
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Thus, we conclude that the trial court acted within its discretion in imposing 

consecutive sentences after reviewing the record and the presentence 

investigation report (“PSI”) sub judice. We note that

[w]here the sentencing court had the benefit of a [PSI], we 

can assume the sentencing court was aware of the relevant 

information regarding the defendant’s character and weighed 

those considerations along with mitigating statutory factors. 

Further, where a sentence is within the standard range of the 

guidelines, Pennsylvania law views the sentence as appropriate 

under the Sentencing Code.

Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa. Super. 2013) (citations 

and internal quotation marks omitted), appeal denied, 76 A.3d 538 (Pa. 

2013). Here, the trial court provided the following rationale in support of 

Appellant’s sentence:

In fashioning the sentence, I am taking into consideration the 

statements of both counsel, the statement of the defendant, as 

well as the testimony of Brenda Manno, and the finding that you 

have been considered a [SVP]. I am taking into account the [PSI] 

which details the egregiousness of these crimes that you have 

committed as well as your prior record, which includes burglary, 

terroristic threats, numerous thefts, receiving stolen property, 

noting that you have received prior sentences and have been 

revoked from every sentence you received I think except for one.

I’m also taking into account the fact that you have been 

diagnosed with an antisocial personality in conjunction with now 

you are a [SVP] and will be treated as such. I am also taking into 

account the guidelines as promulgated by the Pennsylvania 

Commission on Sentencing, and I further adopt the statements of 

the prosecutor today. 

N.T. Sentencing, 7/11/17, at 30-31. Accordingly, we cannot conclude that 

the trial court’s imposition of consecutive sentences rendered Appellant’s 

aggregate sentence manifestly excessive sufficient to constitute an abuse of 

discretion. 
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With respect to Appellant’s claim that the trial court failed to consider 

mitigating factors, we have “held on numerous occasions that a claim of 

inadequate consideration of mitigating factors does not raise a substantial 

question for our review.” Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. 

Super. 2013) (quoting Commonwealth v. Downing, 990 A.2d 788, 794 (Pa. 

Super. 2010)); see also Commonwealth v. Berry, 785 A.2d 994 (Pa. Super. 

2001) (explaining allegation that sentencing court failed to consider certain 

mitigating factor generally does not raise a substantial question); 

Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545 (Pa. Super. 1995) 

(“[a]n allegation that a sentencing [judge] ‘failed to consider’ or ‘did not 

adequately consider’ certain factors does not raise a substantial question that 

the sentence was inappropriate,”), appeal denied, 676 A.2d 1195 (Pa. 

1996); Commonwealth v. Bershad, 693 A.2d 1303, 1309 (Pa. Super. 1997) 

(finding absence of substantial question where appellant argued the trial court 

failed to adequately consider mitigating factors and to impose an 

individualized sentence). Consistent with the foregoing cases, we conclude 

that Appellant failed to raise a substantial question with respect to his claim 

that the trial court gave inadequate consideration to mitigating factors. 

Even if we were to find a substantial question, Appellant still would not 

have been entitled to relief. As stated above, where the sentencing court had 

the benefit of a 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. Griffin, supra. Here, 
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the trial court sentenced Appellant to a standard range sentence, had the 

benefit of a PSI, and explained its decision on the record. Thus, Appellant’s 

claim fails. 

In sum, we affirm Appellant’s judgment of sentence in part and vacate 

it insofar as he has been designated a SVP in violation of Butler. We remand 

this case to the trial court for further proceeding consistent with this 

Memorandum. 

Judgment of sentence affirmed in part and vacated in part. Case 

remanded. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/22/2018