Opinion
J-A17035-15 No. 3226 EDA 2014
08-04-2015
COMMONWEALTH OF PENNSYLVANIA Appellee v. JOSE A. VELEZ Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence October 14, 2014
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000971-2014
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Jose A. Velez, appeals from the judgment of sentence entered in the Monroe County Court of Common Pleas, following his guilty plea to simple assault. We affirm.
The relevant facts and procedural history of this case are as follows. On May 1, 2014, Appellant and his wife ("Victim") got into an argument while driving. The argument turned physical when Appellant punched and kicked Victim, who subsequently reported the incident to the police. Police observed lacerations on Victim's knee and lip. On July 30, 2014, Appellant entered an open guilty plea, and the court ordered a post-sentence investigation ("PSI") report. The court sentenced Appellant in the aggravated range on October 14, 2014, to a term of imprisonment of twelve (12) months less one (1) day to twenty-four (24) months less one (1) day, with credit for time served.
On October 17, 2014, Appellant timely filed a post-sentence motion, which baldly asserted the court had imposed an excessive sentence. That same day, the Commonwealth filed a motion for modification of sentence, which alleged Appellant was entitled to additional credit for time served. The court conducted a hearing on the parties' motions on November 3, 2014, granted the Commonwealth's motion, and denied Appellant's motion. Appellant timely filed a notice of appeal on November 13, 2014. The court ordered Appellant on November 17, 2014, to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The court granted Appellant's request for an extension of time, and Appellant timely filed a Rule 1925(b) statement on December 15, 2014.
Appellant raises the following issue for our review:
DID THE SENTENCING COURT ABUSE ITS DISCRETION BY CONSIDERING FACTORS NOT IN EVIDENCE, REFUSING TO CONSIDER MITIGATING FACTORS, AND THEN IMPOSING A CLEARLY UNREASONABLE SENTENCE BASED ON THOSE FACTORS?(Appellant's Brief at 5).
Appellant argues the court imposed an unreasonable sentence. Appellant contends the court took into consideration factors not in evidence. Specifically, Appellant asserts the court improperly considered an arrest warrant that had been disposed of at the time of sentencing, that the majority of the Protections from Abuse ("PFA") against Appellant had expired, and that statements in the PSI report indicated Appellant had failed to take responsibility for his actions. Appellant further alleges the court did not fully consider certain mitigating factors, including Appellant's expressions of remorse, Victim's desires, and Appellant and Victim's participation in marriage counseling. Appellant concludes this Court should vacate the trial court's order and remand for resentencing. As presented, Appellant's claims challenge the discretionary aspects of his sentence. See Commonwealth v. Anderson , 830 A.2d 1013 (Pa.Super. 2003) (stating claim that court considered improper factors at sentencing refers to discretionary aspects of sentencing); Commonwealth v. Cruz-Centeno , 668 A.2d 536 (Pa.Super. 1995) (explaining claim that court did not consider mitigating factors challenges discretionary aspects of sentencing).
"[W]hile a guilty plea which includes sentence negotiation ordinarily precludes a defendant from contesting the validity of his...sentence other than to argue that the sentence is illegal or that the sentencing court did not have jurisdiction, open plea agreements are an exception in which a defendant will not be precluded from appealing the discretionary aspects of the sentence." Commonwealth v. Tirado , 870 A.2d 362, 365 n.5 (Pa.Super. 2005) (emphasis in original). "An 'open' plea agreement is one in which there is no negotiated sentence." Id. at 363 n.1. Here, Appellant's plea was "open" as to sentencing, so he can challenge the discretionary aspects of his sentence.
This Court is limited to determining the validity of the proceeding and the legality of the judgment of sentence imposed. Commonwealth v. Heilman , 876 A.2d 1021 (Pa.Super. 2005). Notwithstanding the stated scope of review suggesting only the legality of a sentence is reviewable, an appellant may also challenge the discretionary aspects of a sentence imposed. Commonwealth v. Sierra , 752 A.2d 910 (Pa.Super. 2000).
Challenges to the discretionary aspects of sentencing do not entitle an appellant to an appeal as of right. Sierra , supra. Prior to reaching the merits of a discretionary sentencing issue:
[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).Commonwealth v. Evans , 901 A.2d 528, 533 (Pa.Super. 2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006).
When appealing the discretionary aspects of a sentence, an appellant must invoke the appellate court's jurisdiction by including in his brief a separate concise statement demonstrating that there is a substantial question as to the appropriateness of the sentence under the Sentencing Code. Commonwealth v. Mouzon , 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f). The concise statement must indicate "where the sentence falls in relation to the sentencing guidelines and what particular provision of the code it violates." Commonwealth v. Kiesel , 854 A.2d 530, 532 (Pa.Super. 2004) (quoting Commonwealth v. Goggins , 748 A.2d 721, 727 (Pa.Super. 2000), appeal denied, 563 Pa. 672, 759 A.2d 920 (2000)).
The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. Anderson , supra. A substantial question exists "only 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." Sierra , supra at 912-13. A substantial question is raised where an appellant alleges the sentencing court erred by imposing an aggravated range sentence without consideration of mitigating circumstances. Commonwealth v. Felmlee , 828 A.2d 1105 (Pa.Super. 2003) (en banc). Likewise, an appellant raises a substantial question where he alleges an excessive sentence due to the court's reliance on impermissible factors. Commonwealth v. McNabb , 819 A.2d 54 (Pa.Super. 2003).
Instantly, Appellant failed to specify his discretionary aspects of sentencing claims at sentencing, in his post-sentence motion, or at the post-sentence motion hearing. Rather, Appellant baldly asserted that his sentence was excessive. Therefore, his claims are arguably waived. See Commonwealth v. Mann , 820 A.2d 788 (Pa.Super. 2003) (stating issues that challenge discretionary aspects of sentencing are generally waived if they are not raised during sentencing proceedings or in post-sentence motion).
Moreover, even if properly preserved, Appellant's discretionary aspects of sentencing claims would merit no relief. The trial court comprehensively discussed this issue as follows:
"[P]roper" aggravating factors were clearly present and were "properly" considered by [the court]. Specifically, we found several aggravating factors. First, we found that [Appellant] had a total of six [PFA] order[s] issued against him—three of them protecting his wife, [Victim] in this case. Given that this case involves an assault that resulted in physical injuries to [Victim], that several other women had obtained orders of protection against [Appellant], that [Appellant's] history demonstrates the existence of apparently untreated anger issues, that [Appellant] had multiple prior arrests for stalking and harassment-type behaviors, one of which resulted in a conviction and another a warrant for his failure to appear, and that [Appellant's] history gives rise to legitimate domestic and public safety concerns, and considering the remainder of the facts and circumstances referenced in the PSI including [Appellant's] obviously problematic attitude and conduct towards women, we continue to believe that this was [a] "proper" aggravating factor to consider.(Trial Court Opinion, filed January 12, 2014, at 11-13, 15) (internal footnote and citation omitted). Accordingly, we affirm the judgment of sentence.
We also found as an aggravating factor the fact that [Appellant] committed this crime after warrants had been issued for his arrest for failing to respond to a [h]arassment charge and for failing to pay costs in another jurisdiction. Committing a crime while on bail or while warrants or detainers are pending is traditionally and commonly considered an aggravating factor. [Appellant's] self-serving attempt to downplay this obvious aggravating factor by characterizing the crime of [h]arassment as a "minor" offense and the failure to pay costs or respond to judicial notices and summonses as "minor" matters is simply unavailing.
We further found that [Appellant's] failure to take
responsibility and his actions in blaming [Victim] were aggravating factors. The failure to take responsibility and blaming the victim of an assault are often found to be aggravating factors. On an individualized basis, when we viewed these factors in light of [Appellant's] personal and criminal background, it was clear to us that [Appellant's] actions in failing to take responsibility and in blaming [Victim] were aggravating circumstances for purposes of imposing sentence, and further, were factors which indicated that [Appellant] was a danger to others around him—especially women.
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It is clear from even a quick review of the PSI and our on-record statements that we did not consider [Victim's] almost classic defense of her abuser, or her request for leniency because she "needed him," as an aggravating factor. Rather, we properly took into consideration the debilitating impact [Appellant's] abusive conduct had on others, especially [Victim], when we weighed the black letter sentencing considerations of impact on [Victim], public safety, and impact on the community, against other factors present in the case, both favorable and unfavorable, in order to fashion an individualized sentence for [Appellant]. In doing so, we found that [Appellant's] criminal background, including his failure [to] respond to judicial notices, coupled with his history of abuse, far outweighed the desire of [Victim] for leniency based on expedience, and that the societal need to protect others (including [Victim]) from [Appellant] outweighed the actual or perceived need of [Appellant's] family for his services. Our balancing of factors and considerations is clearly reflected in the sentencing order which not only incarcerated [Appellant], but, also, contained remedial and rehabilitative provisions that were individualized to defendant and designed to address both safety concerns and [Appellant's] problematic history.
* * *
In any event, we can unhesitatingly and unequivocally state that, while we considered and were concerned about [Appellant's] mental state, anger issues, and history of
abuse against women, drugs, alcohol, and substance abuse did not play any part in our sentencing decision. ...
[Appellant's] claim that we ignored mitigating circumstances is equally without merit. Our on-record statements demonstrate that, in fashioning [Appellant's] sentence, we strove to achieve a sentence that was consistent with the protection of the public, the gravity of the offense in relation to its impact on the community, and the rehabilitative needs (and realities) of [Appellant]. In doing so, we had the benefit of a comprehensive PSI report which contained information about the crime that had been committed as well as information—favorable and unfavorable, mitigating and aggravating—about [Appellant]. As both the discussion above and our on-record statements demonstrate, we indicated an awareness of and an appreciation for the information contained in the report regarding [Appellant's] character and background, as well as the information provided by [Appellant] during those hearings, and weighed the factors and the requisite statutory and guideline provisions when deciding and announcing [Appellant's] sentence. Simply, we did not fail to consider mitigating factors. The fact that we weighed factors differently than [Appellant] wants us to does not mean that we erred.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/4/2015