Opinion
J-A21004-19 No. 3659 EDA 2018
10-29-2019
COMMONWEALTH OF PENNSYLVANIA v. EDWIN NAVARRO JR. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered December 7, 2018
In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0000484-2018 BEFORE: BOWES, J., OLSON, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY BOWES, J.:
Edwin Navarro, Jr. appeals from the judgment of sentence of ninety days of incarceration, imposed after the trial court convicted him of two summary offenses. After careful review, we affirm Appellant's judgment of sentence as amended.
On the evening of January 20, 2018, Appellant's girlfriend Kinga Rypien approached Appellant in a Red Robin parking lot, accused him of cheating on her with multiple women, and slapped him across the face. After Appellant denied cheating on her, Rypien showed him images and text messages she had photographed using her phone, which she had discovered on his iwatch earlier that same day. N.T. Jury Trial, 10/11/18, at 34-43. Appellant took Rypien's phone and started running away. Id. at 45.
Rypien pursued Appellant on foot, obtaining Appellant's phone when he dropped it accidentally. Id. at 46. When they went to exchange phones, Appellant threw the victim's phone across a parking lot, smashing the screen so that it became inoperable. Id. at 46-48. Next, Appellant grabbed the victim by her throat and choked her while saying "you shouldn't have done that." Id. at 104. Approximately fifteen seconds later, Appellant released Rypien and ran away. Rypien walked over to her two co-workers, who had observed the whole interaction from a distance and saw redness on Rypien's neck. Id. at 76-78, 86-87. Rypien reported the incident to police and sought medical treatment for her throat.
Appellant was charged with aggravated assault, strangulation, simple assault, recklessly endangering another person, summary criminal mischief, and summary harassment. On October 11, 2018, Appellant proceeded to a bifurcated jury trial. At trial, Appellant admitted to breaking Rypien's cell phone, but denied choking her. Id. at 120-21, 132-33. The jury acquitted Appellant of aggravated assault, strangulation, simple assault, and recklessly endangering another person. The trial court convicted Appellant of both summary charges. Sentencing was deferred so that a pre-sentence investigation report could be prepared. On December 7, 2018, the trial court imposed two concurrent ninety-day sentences of imprisonment. Appellant did not file a post-sentence motion. Instead, he filed a timely notice of appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
The Commonwealth also charged Appellant with attempted homicide, but withdrew that charge before trial. --------
Appellant raises the following issues for our review, which we have reordered for ease of disposition:
1. Did the lower court abuse its discretion by sentencing [Appellant] to incarceration on summary charges based on facts not in evidence and without adequate aggravating circumstances?Appellant's brief at 6.
2. Did the lower court misapply the law by sentencing [Appellant] to a maximum sentence in violation of 42 Pa.C.S. § 9756(b)?
In his first claim, Appellant argues that his sentence is excessive because the trial court relied on impermissible factors and failed to consider mitigating ones. Appellant's brief at 15, 20. Appellant has raised a challenge to the discretionary aspects of the trial court's sentence and we do not review such issues as a matter of right. Importantly, "[a]n appellant must satisfy a four-part test to invoke this Court's jurisdiction when challenging the discretionary aspects of a sentence." Commonwealth v. Buterbaugh , 91 A.3d 1247, 1265 (Pa.Super. 2014). Appellant must show that he (1) preserved the issue either by raising it at the time of sentencing or in a post-sentence motion; (2) filed a timely notice of appeal; (3) set forth a concise statement of reasons relied upon for the allowance of his appeal in his appellate brief pursuant to Pa.R.A.P. 2119(f); and (4) that he raised a substantial question for our review. Commonwealth v. Baker , 72 A.3d 652, 662 (Pa.Super. 2013).
Our review of the record reveals that although Appellant raised this argument in his Rule 1925(b) statement, he failed to do so at the sentencing hearing or in a post-sentence motion. As a result, Appellant failed to preserve his discretionary aspects of sentencing, and it is not subject to our review. Commonwealth v. Rush , 959 A.2d 945, 949 (Pa.Super. 2008) ("For any claim that was required to be preserved, this Court cannot review a legal theory in support of that claim unless that particular legal theory was presented to the trial court[.]"). Accordingly, Appellant's first claim is waived.
Next, Appellant attacks the trial court's failure to impose a minimum sentence, rendering his sentence illegal. Appellant's brief at 16. The Commonwealth agrees that the trial court erred when it did not impose a minimum sentence. Commonwealth's brief at 4. We appreciate the Commonwealth's candor and agree with its assessment.
A minimum sentence must be imposed for a summary harassment conviction, pursuant to 42 Pa.C.S. § 9756. Commonwealth v. Duda , 831 A.2d 728, 733 (Pa.Super. 2003). However, we do not need to vacate the judgment of sentence and remand for resentencing, because a review of the sentencing transcript reveals that the sentencing court clearly intended to impose the maximum sentence it could impose by law. Therefore, this Court can amend the sentence to include a minimum term equal to one-half of the maximum. Id. at 733.
Here, the maximum possible sentence for each summary offense is ninety days. Therefore, this Court amends Appellant's sentence to include a minimum term of forty-five days of incarceration at both convictions, while leaving unchanged the maximum sentence of ninety days and the concurrent structure that were previously imposed.
Judgment of sentence affirmed as amended. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/29/19