Com. v. Velez, A. ( 2018 )

J-S61023-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANGEL L. VELEZ :
:
Appellant : No. 2401 EDA 2017
Appeal from the Judgment of Sentence December 1, 2015
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001594-2011,
CP-51-CR-0012119-2009
BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 29, 2018
Angel L. Velez appeals from the aggregate judgment of sentence of eight
to sixteen years imprisonment imposed after Appellant violated the terms of
his probation.1 We affirm.
The trial court summarized the history of this case as follows:
On November 4, 2009, [Appellant] pled guilty before this
court to one count of possession with intent to deliver on docket
CP-51-CR-0012119-2009. On that same day, this court
sentenced [Appellant] to six to twenty-three months’
incarceration with immediate parole and one year of probation.
On April 7, 2010, following a violation of probation (“VOP”)
hearing, [Appellant’s] probation was revoked and he was
sentenced to three years’ probation. On October 6, 2010,
following a VOP hearing, [Appellant’s] probation was again
revoked and he was sentenced to eleven-and-a-half to twenty-
three months’ incarceration followed by five years’ probation. On
____________________________________________
1 The sentence in these cases runs concurrently with another sentence of five
to ten years imposed for firearms violations at CP-51-CR-0008567-2013. See
N.T. Sentencing, 12/1/15, at 21.
J-S61023-18
April 14, 2011, [Appellant] pled guilty before this court to one
count of aggravated assault on docket CP-51-CR-0001594-2011.
On that same day, [Appellant] was sentenced to eleven-and-a-
half to twenty-three months’ incarceration followed by two years’
probation. On February 6, 2015[, Appellant] pled guilty to one
count of prohibited possession of a firearm. On December 1,
2015, [Appellant] was sentenced to five to ten years’ incarceration
for the firearms violation. On that same day, having found that
[Appellant’s] firearms case put him in direct violation of his
probation, this court revoked probation and sentenced [Appellant]
to four to eight years’ incarceration on both CP-51-CR-0012119-
2009 and CP-51-CR-0001594-2011, for an aggregate sentence of
eight to sixteen years’ incarceration to run concurrent to the
firearms sentence.
[Appellant] filed a Motion for Reconsideration of Sentence
on both VOP dockets on December [11], 2015. These motions
were denied by operation of law on April 12, 2016. No direct
appeal was taken. On April 25, 2016, [Appellant] filed a petition
pursuant to the Post Conviction Relief Act (“PCRA”). On April 7,
2017, [Appellant] filed an amended PCRA petition. On June 26,
2017, this court granted [Appellant]’s PCRA petition and
reinstated his appellate rights nunc pro tunc. On July 26, 2017,
[Appellant] filed a notice of appeal to the Superior Court.
Trial Court Opinion, 1/11/18, at unnumbered 1-2 (citations, footnote,
unnecessary capitalization, and repetition of values in numerical form
omitted). Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following question for our review: “Did The
Honorable Rayford A. Means abuse his discretion in sentencing [Appellant] to
what appears to have been a manifestly excessive sentence?” Appellant’s
brief at 3.
The following principles apply to our consideration of whether
Appellant’s claim raises a viable challenge to the discretionary aspects of his
sentence.
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An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the following
four factors:
(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. Samuel, 102 A.3d 1001, 1006-07 (Pa.Super. 2014)
(citations omitted).
Appellant filed a timely post-sentence motion seeking reconsideration of
his sentence, and a timely notice of appeal after his direct appeal rights were
reinstated. Appellant’s brief contains a statement of reasons relied upon for
his challenge to the discretionary aspects of his sentence as required by
Pa.R.A.P. 2119(f).
As to whether Appellant’s claim presents a substantial question, he
avers that his aggregate sentence is manifestly unreasonable and excessive.
He contends that the court failed to consider his individual circumstances and
mitigating factors (e.g., his troubled background, that he had been addicted
to drugs since age thirteen, and that he was only nineteen when he entered
his original guilty plea), and rather focused solely on the seriousness of the
offense. Appellant’s brief at 7-9. Appellant argues that, because he had never
been sentenced to state incarceration before, and faces a term of five to ten
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years imprisonment for firearms charges in a third, 2013 case, he will have
sufficient time “to complete drug programs, learn a trade that can finally help
him achieve gainful employment, and address his learning disabilities and earn
a GED,” without the additional, consecutive time imposed by the VOP court.
Id. at 8-9.
We conclude that Appellant has raised a substantial question, and hence
proceed to address the merits of his claim. See, e.g., Commonwealth v.
Caldwell, 117 A.3d 763, 770 (Pa.Super. 2015) (en banc) (“[W]e conclude
that Appellant’s challenge to the imposition of his consecutive sentences as
unduly excessive, together with his claim that the court failed to consider his
rehabilitative needs upon fashioning its sentence, presents a substantial
question.”).
“When reviewing sentencing matters, this Court must accord the
sentencing court great weight as it is in best position to view the defendant’s
character, displays of remorse, defiance or indifference, and the overall effect
and nature of the crime.” Commonwealth v. Ventura, 975 A.2d 1128, 1134
(Pa.Super. 2009). “We cannot re-weigh the sentencing factors and impose
our judgment in the place of the sentencing court.” Commonwealth v.
Macias, 968 A.2d 773, 778 (Pa.Super. 2009). Rather, we review the trial
court’s determination for an 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
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partiality, prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.
Antidormi, supra at 760.
“When imposing sentence, a court is required to consider the particular
circumstances of the offense and the character of the defendant. In
considering these factors, the court should refer to the defendant’s prior
criminal record, age, personal characteristics and potential for rehabilitation.”
Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa.Super. 2014) (citations
and quotation marks omitted).
The trial court addressed Appellant’s claim as follows.
[Appellant’s] prior record score, probation violations, and criminal
history indicate that it is likely that he will commit another crime
if he is not imprisoned[.] This court also concluded that, based
on the fact that [Appellant’s] criminal conduct progressed from
drugs to the unlawful possession of a firearm, even after multiple
VOP hearings, that Defendant does not appreciate the nature of
his probation or respect the authority of this Court[.] . . .
. . . [T]he record shows that this court in fact fully considered
[Appellant’s] background, including both his criminal history and
relevant mitigating factors. This court heard that [Appellant] has
strong family support, that he has been in prison for the entirety
of his son’s life, and that he has taken advantage of many of the
programs available to him in prison, including parenting classes.
[Appellant] also expressed remorse for his actions, and took
responsibility by pleading guilty. This court also conducted an
extensive inquiry into the nature of [Appellant’s] criminal history
and the precise breakdown of his prior record. This court took
into consideration that [Appellant] has been given lenient
sentences and multiple chances to improve his conduct, and that
he has not done so. This court also took into consideration that
[Appellant] assaulted an employee while trying to escape from
Gaudenzia House, indicating that he has trouble following the
rules and regulations of a less restrictive setting, and that prison
likely provides the structure necessary for [Appellant] to continue
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to participate in rehabilitative programs. Most importantly, this
court placed on the record numerous reasons for its sentence for
[Appellant’s] firearms charges, all of which apply to its VOP
sentences; it cannot be said that this court did not fully consider
the case before it, or that it in any way abused its discretion in
fashioning the VOP sentence.
Trial Court Opinion, 1/11/18, at unnumbered 4-5 (citations and unnecessary
capitalization omitted).
Our review of the record confirms the trial court’s representations. See
N.T. Sentencing, 12/1/15, at 4-11, 16 (reflecting the court’s consideration of
Appellant’s individual history, mitigating factors, and rehabilitative needs).
The record supports the trial court’s conclusion that probation has been
ineffective in rehabilitating Appellant and that a significant prison sentence is
necessary to vindicate the authority of the court and protect the public. See,
e.g., Commonwealth v. Derry, 150 A.3d 987, 999 (Pa.Super. 2016)
(holding no abuse of discretion in imposing sentence that appeared to be
“harsh” where the VOP court based the sentence upon the escalation of the
defendant’s criminal conduct from non-violent to violent offenses while under
supervision).
Appellant essentially asks this Court to reweigh the factors and
substitute our judgment for that of the trial court, which is something we may
not do. Macias, supra at 778. Appellant has not shown that “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
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unreasonable decision.” Thus, he is entitled to no relief from this Court.
Antidormi, supra at 760.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/29/18
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