Com. v. Hernandez, M. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MELVIN ANTHONY HERNANDEZ,
Appellant No. 1901 EDA 2014
Appeal from the Judgment of Sentence of July 23, 2013
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0000042-2013
BEFORE: DONOHUE, OLSON AND MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED APRIL 27, 2015
Appellant, Melvin Anthony Hernandez, appeals from the judgment of
sentence entered on July 23, 2013 as made final by the denial of his post-
sentence motion on August 23, 2013. We affirm.
The trial court accurately summarized the factual background of this
case as follows:
The charges stemmed from a brutal attack that occurred at the
Hamilton Tower apartment building in Allentown, Pennsylvania,
on November 18, 2012. That night, [A]ppellant and an
unidentified accomplice forcibly entered Apartment 315,
savagely beat its 46-year-old occupant[,] and demanded that he
give them everything he had. During the attack, [A]ppellant and
the other robber tied the victim to a chair, attempted to slit his
throat with a folding knife, stabbed him in the torso with a
screwdriver, hit him with a miniature baseball bat[,] and
repeatedly punched him in the face and head. After leaving the
scene, [A]ppellant was arrested by police as he stepped from the
apartment elevator. He was covered in blood and was holding
the victim’s x-box video system. Appellant had other property of
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the victim in his pockets. When the police entered Apartment
315, they found the badly injured victim, blood, the implements
used to restrain and assault the victim[,] and a bag left behind
by the attackers filled with the victim’s personal property. The
victim was taken to the hospital where he was treated for a
broken nose, orbit fractures, a cut to his neck, a large blunt
force injury to his torso, and other abrasions and contusions.
The victim had reconstructive surgery on the right eye. He had
surgery planned for August 2013 on his left eye. As a result of
the attack, the victim has short-term memory loss, severe
headaches, significant vision problems[,] and depression for
which he treats with a therapist.
Trial Court Opinion, 9/8/14, at 1-2.
The procedural history of this case is as follows. On January 25, 2013,
Appellant was charged via criminal information with robbery,1 burglary,2
aggravated assault,3 theft by unlawful taking,4 receiving stolen property,5
attempted unlawful restraint,6 and conspiracy to commit robbery.7 On June
5, 2013, Appellant entered an open guilty plea to aggravated assault and
conspiracy to commit robbery.
On July 23, 2013, Appellant was sentenced to 10 to 20 years’
imprisonment on the aggravated assault count and 7½ to 15 years’
1
18 Pa.C.S.A. § 3701(a)(1)(i).
2
18 Pa.C.S.A. § 3502(a)(1).
3
18 Pa.C.S.A. § 2702(a)(1).
4
18 Pa.C.S.A. § 3921(a).
5
18 Pa.C.S.A. § 3925(a).
6
18 Pa.C.S.A. §§ 901, 2902.
7
18 Pa.C.S.A. §§ 903, 3701.
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imprisonment on the conspiracy count. Those sentences were ordered to
run consecutively. On July 29, 2013, Appellant filed a post-sentence motion.
On August 23, 2013, the trial court denied Appellant’s post-sentence motion.
On March 25, 2014, Appellant filed a pro se petition pursuant to the Post-
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-9546. Counsel was
appointed and ultimately, on June 27, 2014, the PCRA court granted the
PCRA petition in part and reinstated Appellant’s direct appellate rights nunc
pro tunc. This appeal followed.8
Appellant presents two issues for our review:
1. Whether there is a substantial question for which this Honorable
Court should grant allowance of appeal from discretionary
aspects of sentencing?
2. Whether the trial court erred in sentencing [Appellant] to a harsh
and excessive sentence when the sentence imposed far
exceeded the sentencing [guidelines] and failed to consider
mitigating factors and the sentencing recommendation contained
within the pre-sentence investigation report?
Appellant’s Brief at 4 (complete capitalization omitted).
Appellant argues that his sentence is excessive. This issue challenges
the discretionary aspects of Appellant’s sentence. See Commonwealth v.
Ali, 2015 WL 926952, *21 n.4 (Pa. Super. Mar. 5, 2015). “[A] trial court
has broad discretion in sentencing a defendant, and concomitantly, the
8
On July 7, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On July 23, 2014, Appellant filed his concise statement.
On September 8, 2014, the trial court issued its Rule 1925(a) opinion.
Appellant’s concise statement preserved the substance of the claims he now
raises on appeal.
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appellate courts utilize a deferential standard of appellate review in
determining whether the trial court abused its discretion in fashioning an
appropriate sentence.” Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa.
2014) (citation omitted).
Pursuant to statute, Appellant does not have an automatic right to
appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A.
§ 9781(b). Instead, Appellant must petition this Court for permission to
appeal the discretionary aspects of his sentence. Id. As Appellant was
sentenced outside of the sentencing guidelines, this Court may only overturn
his sentence if it is unreasonable. 42 Pa.C.S.A. § 9781(c)(3).
As this Court has explained:
To reach the merits of a discretionary sentencing issue, we
conduct a four-part analysis to determine: (1) whether appellant
has filed a timely notice of appeal, Pa.R.A.P. 902, 903; (2)
whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, 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. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014),
appeal denied, 99 A.3d 925 (Pa. 2014) (internal alteration and citation
omitted). Appellant filed a timely notice of appeal and properly preserved
his present claims for our review in his post-sentence motion. Appellant’s
brief also contains a statement pursuant to Pennsylvania Rule of Appellate
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Procedure 2119(f). We now turn to whether the appeal presents a
substantial question.
“In order to establish a substantial question, the appellant must show
actions by the trial court inconsistent with the Sentencing Code or contrary
to the fundamental norms underlying the sentencing process.”
Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa. Super. 2014)
(citation omitted). “The determination of whether a particular case raises a
substantial question is to be evaluated on a case-by-case basis.”
Commonwealth v. Seagraves, 103 A.3d 839, 841 (Pa. Super. 2014)
(citation omitted).
Appellant’s Rule 2119(f) statement argues that this appeal presents a
substantial question for two reasons. First, he argues that the sentence was
excessive as it was outside of the sentencing guidelines range. Second, he
argues that the trial court failed to consider certain mitigating
circumstances. This Court recently held that an “excessive sentence claim in
conjunction with an assertion that the court did not consider mitigating
factors” raises a substantial question. Commonwealth v. Gonzalez, 2015
WL 252446, *15 (Pa. Super. Jan. 21, 2015) (internal alteration and citation
omitted). Accordingly, Appellant has raised a substantial question and we
proceed to consider the merits of his discretionary aspects claim.
When sentencing a defendant, the trial court is required to consider
the sentencing guidelines. See Commonwealth v. Tobin, 89 A.3d 663,
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669 n.4 (Pa. Super. 2014) (citation omitted). In this case, the standard
range for both convictions was 60 to 78 months and the aggravated range
was 90 months. These guidelines, however, are merely advisory and the
trial court is free to sentence outside of the guidelines as long as it
adequately explains its rationale. See Commonwealth v. Mattison, 82
A.3d 386, 402 (Pa. 2013). Additionally,
the sentence imposed should call for confinement that is
consistent with the protection of the public, the gravity of the
offense as it relates to the impact on the life of the victim and on
the community, and the rehabilitative needs of the defendant.
42 Pa.C.S.A. § 9721(b).
In this case, the trial court carefully examined all of the relevant
sentencing factors. It stated on the record that it reviewed the pre-sentence
investigation report, including the sentencing recommendation, and placed
on the record the applicable sentencing guidelines. N.T., 7/23/13, at 2-3.
See Commonwealth v. Raven, 97 A.3d 1244, 1254 n.12 (Pa. Super.
2014), appeal denied, 105 A.3d 736 (Pa. 2014) (citation omitted) (“when a
sentencing court has the benefit of a pre-sentence report, we must presume
that the sentencing judge was aware of, and duly considered, any character-
related information contained therein”). The trial court considered the
gravity of the offense as it related to the victim. Specifically, the victim
submitted an impact statement in which he stated that the day of the
incident is when his life fell apart. Id. at 3. The victim continued,
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You took away from me peace of mind. You tried to take my
life. You tried to make my kids orphaned. . . . [B]ecause of your
decisions I have short-term memory loss. . . . I suffer from Post-
Traumatic Stress Disorder. I’ve lost 45% of my sight in my right
eye, and I’ve had to have surgery to fix my left eye. . . . [Y]ou
took things from me that you could never give back. I would
never wish this on my worst enemy.
Id. at 4. The victim also stated “I don’t trust anybody. I’m constantly
looking over my shoulder.” Id. at 10. Thus, the trial court concluded that
the impact on the victim was momentous. The trial court properly gave
significant weight to this factor.
Next, the trial court considered the need to protect the community.
Specifically, the trial court noted that Appellant was only on parole for one
week prior to the instant offense. N.T., 7/23/13, at 23. The trial court also
outlined Appellant’s prior admitted offenses and how he violated several
prison policies, inter alia, getting into a major prison altercation. Id. at 23-
26. Again, the trial court properly gave significant weight to this factor. The
trial court also considered the rehabilitative needs of Appellant, noting that
he had no prior employment history and had a history of suicidal thoughts.
Id. at 24-25. Accordingly, the trial court considered all of the section
9721(b) factors.
Appellant contends the trial court did not adequately consider the
sentencing guidelines. The trial court, however, not only placed the
guidelines on the record, N.T., 7/23/13, at 2, but it also explicitly stated it
was sentencing Appellant above the guidelines at one count and in the
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aggravated range at the other count. Id. at 23. The trial court, therefore,
adequately considered the guidelines, and the probation office’s
recommendation, when fashioning its sentence.
Appellant also argues that the trial court failed to consider certain
mitigating factors. He argues that the trial court failed to consider his young
age (21 years old) at the time of the offense. Although Appellant was
young, he was an adult and old enough to recognize the consequences that
could result from his serious criminal offense. Cf. Commonwealth v.
Hoover, 107 A.3d 723, 732 (Pa. 2014) (rejecting the argument that the
young age of a defendant lessened the probative value of an offense). Next,
Appellant argues that the trial court did not adequately consider his chaotic
environment and lack of education. We disagree. The record establishes
that the trial court heard this evidence and denied relief. Given the brutal
nature of the offenses, the undisputed and life-altering impact on the victim,
and the fact that Appellant committed the instant armed and violent crimes
only one week after starting parole, we cannot say that the trial court’s
denial of relief under these circumstances constituted an abuse of discretion.
In fact, the record shows that much of Appellant’s chaotic environment was
of his own creation. Appellant is an admitted drug user and drug seller, a
member of a criminal gang, and a participant in a prison assault. Appellant
contends the trial court did not consider his mental illness. The trial court,
however, explicitly noted his mental health problems. N.T., 7/23/13, at 24.
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Finally, Appellant argues that the trial court did not consider his apology.
The record reflects, however, that the trial court found the apology to “ring
hollow.” Id. at 23. Thus, the trial court considered all of the mitigating and
aggravating circumstances when pronouncing its sentence.
In sum, Appellant committed a brutal crime that will have a life-long
impact on the victim and his family. There was ample evidence from which
the trial court could infer that this criminal episode was far more brutal, and
the impact on the victim far greater, than a typical aggravated assault and
conspiracy to commit robbery case. The trial court therefore concluded that
the sentencing guidelines were inappropriate and sentenced Appellant
outside of the guidelines. We conclude that the trial court’s determination
was not an abuse of discretion and that the sentence outside of the
guidelines was not unreasonable under the circumstances. Accordingly,
Appellant’s challenge to the discretionary aspects of his sentence is without
merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2015
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