Com. v. Olivo, M. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARIANO OLIVO
Appellant No. 1002 EDA 2015
Appeal from the Judgment of Sentence March 3, 2015
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0003012-2009
BEFORE: SHOGAN, J., LAZARUS, J., and STABILE, J.
MEMORANDUM BY LAZARUS, J.: FILED JANUARY 12, 2016
After Defendant Mariano Olivo repeatedly violated his parole and
probation, he was re-sentenced to 6-12 months’ incarceration. Olivo now
appeals from his judgment of sentence entered in the Court of Common
Pleas of Lehigh County. Counsel has filed a petition to withdraw on appeal,
pursuant to Anders v. California, 386 U.S. 738 (1967). After careful
review, we grant counsel’s request to withdraw and affirm Olivo’s judgment
of sentence.
Olivo originally pled guilty to one count of possession of a controlled
substance and two counts of endangering the welfare of a child in
September 2009; he was sentenced to 5 years of probation. From March
2011 through December 2014, Olivo continuously violated his probation and
parole. Most recently, in March 2015, Olivo violated his probation and was
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resentenced to 6-12 months’ incarceration which was to run consecutively to
a 4-8 year burglary sentence that he has been serving since February 2015.
Olivo filed an unsuccessful motion for reconsideration. This timely appeal
follows.
On appeal, Olivo presents the following question for our review:
Whether the lower court abused its sentencing
discretion[1] when, after determination [sic] that the
defendant had violated his probation, the court sentenced
him to [a] consecutive term of imprisonment in a state
correctional institution?[2]
In order for counsel to withdraw from an appeal pursuant to Anders,
certain requirements must be met, and counsel must:
(1) provide a summary of the procedural history and facts,
with citations to the record;
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1
Under Pennsylvania law, 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.” Commonwealth v.
Ferguson, 893 A.2d 735, 739 (Pa. Super. 2006) (quoting Commonwealth
v. Hyland, 875 A.2d 1175, 1184 (Pa. Super. 2005)). An abuse of discretion
requires more than the showing of a mere error in judgment; rather, an
appellant must demonstrate that the trial court was “manifestly
unreasonable” or exercised judgment that was the result of “partiality,
prejudice, bias, or ill-will.” Commonwealth v. Griffin, 804 A.2d 1, 7 (Pa.
Super. 2002).
2
Counsel’s brief also lists as an issue “[m]ay appointed counsel be permitted
to withdraw after a conscientious review of the issues and the facts pursuant
to the Anders case?” Because this inquiry is mandated when our Court is
faced with a petition to withdraw, we have not listed it as a separate issue
above.
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(2) refer to anything in the record that counsel believes
arguably supports the appeal;
(3) set forth counsel’s conclusion that the appeal is frivolous;
and
(4) state counsel’s reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of record,
controlling case law, and/or statutes on point that have led to
the conclusion that the appeal is frivolous.
Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010) (citing
Commonwealth v. Santiago, 978 A.2d 349, 361 (2009)).
Our review of counsel’s application to withdraw, supporting
documentation, and Anders brief reveal that counsel has complied with the
requirements set forth in Daniels and Santiago. Counsel has also
furnished a copy of the brief to Olivo, advising him of his right to proceed
pro se or raise any additional points that he deems worthy of the court’s
attention. Accordingly, we will now turn to the issue counsel stated arguably
supports the appeal.
Olivo claims that the court abused its discretion by sentencing him to a
consecutive, rather than a concurrent, sentence which results in him having
to serve time in a state correctional facility, rather than a county jail. Olivo’s
issue raises a discretionary aspect of sentencing claim. It is well settled that
there is no absolute right to appeal the discretionary aspects of a sentence.
Commonwealth v. Mouzon, 812 A.2d 617 (Pa. 2002). To challenge the
discretionary aspects of a sentence, the defendant must first raise that claim
at the sentencing hearing or in a post-sentence motion. Pa.R.A.P. 302;
Commonwealth v. Dodge, 859 A.2d 771 (Pa. Super. 2004). Next, the
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defendant must “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); Commonwealth v. Tuludziecki, 522
A.2d 17, 19 (Pa. 1987). Finally, a defendant must also demonstrate a
substantial question by setting forth “a plausible argument that the sentence
violates a particular provision of the Sentencing Code or is contrary to the
fundamental norms underlying the sentencing process.” Commonwealth
v. Moore, 617 A.2d 8, 11 (Pa. Super. 1992).
Instantly, Olivo raised his discretionary aspect of sentencing claim by
including it in his motion to modify sentence; therefore, he has complied
with Rule 302 and Dodge. However, we note that, generally, a trial court’s
exercise of discretion in imposing consecutive as opposed to concurrent
sentences is not viewed as raising a substantial question that would allow
the granting of allowance of appeal. Commonwealth v. Marts, 889 A.2d
608 (Pa. Super. 2005). In fact, only in extreme cases where the imposition
of consecutive sentences amounts to an aggregate sentence that is unduly
harsh will such an issue be considered to raise a substantial question.
Commonwealth v. Moury, 992 A.2d 162, 171-72 (Pa. Super. 2010).
Here, Olivo’s aggregate sentence, when viewed in the context of the
entire history of his criminal transgressions, is not so unduly harsh that we
find he has raised a substantial question on appeal. However, even if we did
find that it raised a substantial question, we do not believe that the trial
court’s sentence was an abuse of discretion. Ferguson, supra. Upon
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sentencing following a revocation of probation, the court is limited only by
the maximum sentence that it could have originally imposed.
Commonwealth v. Coolbaugh, 770 A.2d 788 (Pa. Super. 2001).
Moreover, once probation is revoked, a sentence of total confinement may
be imposed if any of the following conditions exist: the defendant has been
convicted of another crime; the conduct of the defendant indicates that it is
likely that he will commit another crime if he is not imprisoned; or, such a
sentence is essential to vindicate the authority of the court. 42 Pa.C.S. §
9711(c).
In the present case, there is no question that the court was justified in
making Olivo’s probationary sentence consecutive to his prior burglary
sentence. As the trial court recognizes, this was Olivo’s third probation
violation. Moreover, by serving his sentence in a state correctional
institution, it is more likely that Olivo will receive proper treatment for his
recurring drug problems, which, in turn, may reduce the likelihood of his
reoffending.
Judgment of sentence affirmed. Petition to withdraw granted.
Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/12/2016
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