Opinion
J-S56015-19 No. 1129 EDA 2019
12-30-2019
COMMONWEALTH OF PENNSYLVANIA v. ANGEL BONILLA Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered March 4, 2019
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000449-2018 BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J. MEMORANDUM BY PANELLA, P.J.:
Angel Bonilla appeals from the judgment of sentence entered on March 4, 2019, in the Monroe County Court of Common Pleas following his open guilty plea to one count of strangulation - applying pressure to throat or neck, see 18 Pa.C.S.A. § 2718(a)(1), and one count of indecent assault without consent of other, see 18 Pa.C.S.A. § 3126(a)(1). For these two offenses, Bonilla was sentenced to, inter alia, thirty-nine to ninety-six months of incarceration. On appeal, Bonilla contends the sentencing court failed to consider Bonilla's character and several other mitigating factors, which led to the imposition of a manifestly excessive sentence. We affirm.
Bonilla and the victim had been in a relationship with one another. However, on January 30, 2018, Bonilla and the victim engaged in a verbal altercation. Eventually, this quarrel intensified into Bonilla physically attacking the victim through various means. At one point, Bonilla picked the victim up by her throat with both of his hands. Sometime thereafter, the victim was able to leave and call the police. Subsequent to this event, the Commonwealth filed charges against Bonilla after the victim reported that Bonilla had physically assaulted and raped her.
Bonilla filed a timely appeal to this Court, and both Bonilla and the trial court have complied with the dictates of Pa.R.A.P. 1925. Bonilla presents one question for our review:
1) Did the trial court abuse its discretion in imposing a manifestly excessive sentence, where the sentence imposed by the trial court solely reflects the gravity of the offenses committed by Bonilla, but does not adequately take into account Bonilla's character and relevant mitigating factors, which is contrary to the fundamental norms underlying the sentencing process?See Appellant's Brief, at 4. Consequently, Bonilla is challenging the discretionary aspects of his sentence.
"It is well-settled that appeals of a discretionary aspect of a sentence are not reviewable as a matter of right." Commonwealth v. Miller , 965 A.2d 276, 277 (Pa. Super. 2009) (citation omitted). To invoke this Court's jurisdiction, an appellant challenging the discretionary aspects of his sentence must first satisfy a four-part test. See Commonwealth v. Griffin , 65 A.3d 932, 935 (Pa. Super. 2013). We consider:
(1) whether appellant has filed a timely notice of appeal; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence; (3) whether appellant's brief has a fatal defect; and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code.Commonwealth v. Gonzalez , 109 A.3d 711, 731 (Pa. Super. 2015) (citation omitted).
Here, Bonilla's appeal is in technical compliance with the requirements to challenge the discretionary aspects of his sentence. Bonilla filed a timely appeal, filed a post-sentence motion for reconsideration and modification, and provided a Pa.R.A.P. 2119(f) statement in his brief. Therefore, we must determine whether Bonilla has presented a substantial question.
Although the existence of a substantial question must be determined on a case by case basis, the Superior Court will generally review the discretionary aspects of sentencing where a colorable argument is made that the actions of the sentencing court were inconsistent with a specific provision of the Sentencing Code or contrary to the fundamental norms which underlie the sentencing process.Commonwealth v. Groft , 623 A.2d 341, 347 (Pa. Super. 1993).
In his 2119(f) statement, Bonilla contends that the sentencing court "did not adequately take into account [Bonilla's] rehabilitative needs and other relevant mitigating factors." Appellant's Brief, at 9. Bonilla's aggregate sentence "was in the middle of the standard range." Id., at 13.
"The key to resolving the preliminary substantial question inquiry is whether the decision to sentence consecutively raises the aggregate sentence to, what appears upon its face to be, an excessive level in light of the criminal conduct at issue in the case." Commonwealth v. Raven , 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation and quotation marks omitted). "An allegation that the sentencing court failed to consider certain mitigating factors generally does not necessarily raise a substantial question." Commonwealth v. Moury , 992 A.2d 162, 171 (Pa. Super. 2010) (citation omitted). However, we have also held that an excessive sentence claim-in conjunction with an assertion that the court failed to consider mitigating factors-raises a substantial question. See Commonwealth v. Perry , 883 A.2d 599, 602 (Pa. Super. 2005). Accordingly, we conclude that Bonilla has raised a substantial question, and we will consider the merits of his claim.
In this context, 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. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.Commonwealth v. Shugars , 895 A.2d 1270, 1275 (Pa. Super. 2006) (citation omitted). Additionally, we are bound by the statutory dictates of 42 Pa.C.S.A. § 9781(c):
The appellate court shall vacate the sentence and remand the case to the sentencing court with instructions if it finds:
(1) the sentencing court purported to sentence within the sentencing guidelines but applied the guidelines erroneously;
(2) the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable; or
(3) the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.
In all other cases the appellate court shall affirm the sentence imposed by the sentencing court.
"When imposing a sentence, a court is required to consider the particular circumstances of the offense and the character of the defendant." Commonwealth v. Griffin , 804 A.2d 1, 10 (Pa. Super. 2002) (citation omitted). "In particular, the court should refer to the defendant's prior criminal record, his age, personal characteristics, and his potential for rehabilitation." Id. A sentencing court must also impose a sentence that is consistent with not only protection of the public, but also the gravity of the offense as it relates to the impact on the life of the victim and community. See 42 Pa.C.S.A. § 9721(b).
Where the sentencing court had the benefit of a presentence investigation report ("PSI Report"), we assume the sentencing court "was aware of the relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors." Commonwealth v. Devers , 546 A.2d 12, 18 (Pa. 1988). Moreover, when a sentence is within the standard range of the guidelines, Pennsylvania law views the sentence as appropriate under the Sentencing Code. See Moury , 992 A.2d at 171.
As Bonilla's individual sentences each fall within the standard range of our sentencing guidelines, they are presumptively reasonable. He must therefore demonstrate that the application of those guidelines was clearly unreasonable. Bonilla submits that the sentencing court did not take proper note of his "acceptance of responsibility and remorse for his conduct expressed at the sentencing hearing, his good behavior in prison, and lack of violent criminal history." Appellant's Brief, at 12-13.
Bonilla does not explicitly argue that the decision to run the sentences consecutively was itself an abuse of discretion. Rather, his argument focuses on the court's failure to sentence in the mitigated range of the guidelines due to an alleged failure to consider mitigating factors. See Appellant's Brief, at 15. In any event, we conclude that the decision to run the sentences consecutively is not unduly harsh considering the nature of the crimes and the total length of imprisonment. See Commonwealth v. Lamonda , 52 A.3d 365, 372 (Pa. Super. 2012) (en banc).
Here, the court reviewed Bonilla's PSI Report, and Bonilla does not challenge the presumption that the court was aware of the information contained within that report. See N.T., Sentencing Hearing, 3/4/19, at 8. The sentencing court also had Bonilla's sentencing memorandum, which outlined many of the same mitigating factors he has identified on appeal. See id. At sentencing, the court took into consideration Bonilla's prior criminal history, which gave him a prior record score. See id., at 7.
As to the impact on the victim, the sentencing court stated that "there was a lot of physical[ly] assaultive behavior in addition to the hands on the throat as well as demeaning behavior that was inflicted upon this victim." Id., at 9. The court continued by calling Bonilla's actions "rather disturbing." Id. However, the court also found Bonilla's acceptance of responsibility for his actions to be mitigating. See id.
Based upon its consideration of the offense as it related to the victim and more broadly, the community, Bonilla's prior criminal history, and Bonilla's recognition of his crimes, the trial court imposed consecutive standard range sentences for his two offenses. With these findings and coupled with a comprehensive PSI Report, we cannot conclude that application of our sentencing guidelines would be "clearly unreasonable." 42 Pa.C.S.A. § 9781(c). In fact, the record clearly supports the sentencing court's reasoning, and its decision conforms to the applicable law. Accordingly, we discern no abuse of discretion nor do we find that the sentencing court arrived at a manifestly unreasonable decision. We therefore affirm Bonilla's judgment of sentence.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/30/19