Com. v. Munoz, A. ( 2014 )

J-S63025-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY PAUL MUNOZ
Appellant No. 471 MDA 2014
Appeal from the Judgment of Sentence August 1, 2013
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0003754-2008
CP-36-CR-0004581-2010
CP-36-CR-0004656-2010
BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*
MEMORANDUM BY PANELLA, J. FILED NOVEMBER 10, 2014
Appellant, Anthony Paul Munoz, appeals from the judgment of
sentence entered August 1, 2013, in the Court of Common Pleas of
Lancaster County, following the revocation of his probation. We affirm.
On May 18, 2012, Munoz entered guilty pleas to two counts of Delivery
of Cocaine at 4581 and 4656 of 2010, respectively, and to one count of
Possession with Intent to Deliver Cocaine at 3754 of 2008. Pursuant to a
negotiated plea agreement, Munoz was sentenced to concurrent terms of ten
years’ probation on each count.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S63025-14
While serving probation, Munoz entered guilty pleas to two counts of
criminal conspiracy to deliver a controlled substance at 914 and 915 of
2013. On August 1, 2013, the trial court conducted a probation revocation
hearing for the charges imposed at 4581 and 4656 of 2010 and 3754 of
2008. After reviewing a pre-sentence investigation report, the court revoked
Munoz’s probation and resentenced him to five to ten years’ incarceration at
each count, to be served concurrently. Munoz filed a timely post-sentence
motion, which the trial court denied.
Munoz’s privately retained counsel filed a notice of appeal and a
Petition for Leave to Withdraw. Counsel was permitted to withdraw and new
counsel was subsequently appointed. On October 23, 2013, this Court
quashed Munoz’s appeal as untimely. Thereafter, Munoz filed a PCRA
petition requesting reinstatement of his appellate rights nunc pro tunc,
which the PCRA court granted. Munoz filed a new Motion to Modify
sentence, which the trial court denied. A timely nunc pro tunc appeal
followed.
On appeal, Munoz argues that his aggregate sentence was manifestly
excessive and grossly disproportionate to the crimes committed. Our
standard when reviewing a sentence imposed following the revocation of
probation is as follows:
Our review is limited to determining the validity of the probation
revocation proceedings and the authority of the sentencing court
to consider the same sentencing alternatives that it had at the
time of the initial sentencing. Also, upon sentencing following
revocation of probation, the trial court is limited only by the
-2-
J-S63025-14
maximum sentence that it could have imposed originally at the
time of the probationary sentence.
Commonwealth v. Tann, 79 A.3d 1130, 1132 (Pa. Super. 2014) (citation
omitted), appeal denied, 94 A.3d 1009 (Pa. 2014).
Munoz challenges the discretionary aspects of his sentence. In
Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (en banc),
an en banc panel of this Court concluded that “this Court’s scope of review in
an appeal from a revocation sentencing includes discretionary sentencing
challenges.” Id., at 1034. Therefore, Munoz’s claim is properly before us.
A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted).
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[We] 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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)
(quotation marks and some citations omitted).
Here, Munoz filed a timely appeal and challenged his sentence in a
post-sentence motion. Munoz’s appellate brief also contains the requisite
-3-
J-S63025-14
Rule 2119(f) concise statement, in which he argues that the trial court’s
sentence of five to ten years’ incarceration was disproportionate to the
crimes committed, and so manifestly excessive as to constitute an abuse of
discretion. Appellant’s Brief at 14. This claim raises a substantial question
for our review. See Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa.
Super. 2011) (claim that a sentence is manifestly excessive such that it
constitutes too severe a punishment raises a substantial question for our
review).
Initially, we note our confusion regarding Munoz’s challenge to the
“aggregate” nature of his sentence. The trial court sentenced Munoz to
concurrent, rather than consecutive terms of five to ten years’
imprisonment. Although the trial court could have sentenced Munoz to serve
consecutive terms of imprisonment, it chose not to do so. If anything,
Munoz arguably benefited from this aspect of the court’s sentencing
structure. Simply put, we see no basis on which to challenge the court’s
imposition of concurrent sentences.
Although Munoz claims that the trial court erred in imposing a
sentence that was inconsistent with the protection of the public, the gravity
of the offenses, and his rehabilitative needs, we note that the trial court
reviewed a pre-sentence report. Where the trial court had the benefit of
reviewing a pre-sentence report, we must
presume that the sentencing judge was aware of relevant
information regarding the defendant's character and weighed
those considerations along with mitigating statutory factors. A
-4-
J-S63025-14
pre-sentence report constitutes the record and speaks for itself.
In order to dispel any lingering doubt as to our intention of
engaging in an effort of legal purification, we state clearly that
sentencers are under no compulsion to employ checklists or any
extended or systematic definitions of their punishment
procedure. Having been fully informed by the pre-sentence
report, the sentencing court's discretion should not be disturbed.
This is particularly true, we repeat, in those circumstances where
it can be demonstrated that the judge had any degree of
awareness of the sentencing considerations, and there we will
presume also that the weighing process took place in a
meaningful fashion. It would be foolish, indeed, to take the
position that if a court is in possession of the facts, it will fail to
apply them to the case at hand.
Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citing
Commonwealth v. Devers, 519 Pa. 88, 101-02, 546 A.2d 12, 18 (1988)).
As the trial court in this case did have the benefit of a pre-sentence report,
we must presume that it considered all relevant sentencing factors and did
not impose a sentence based solely on the gravity of the offenses.
We additionally note that while Munoz argues that the sentence
imposed by the lower court following revocation was excessive, he notably
does not argue that the sentence imposed by the court was beyond the
maximum. Nor does the record support such an assertion. It is well settled
that the sentencing guidelines do not apply to sentences imposed as a result
of probation or parole revocations. See Commonwealth v. Ware, 737 A.2d
251, 255 (Pa. Super. 1999).1 Here, the lower court did not exceed the
____________________________________________
1
204 PA.CODE § 303.1(b) provides: “The sentencing guidelines do not apply
to sentences imposed as a result of the following: . . . revocation of
probation, intermediate punishment or parole.”
-5-
J-S63025-14
statutory maximum when it resentenced Munoz following the revocation of
his probation. Accordingly, we discern no abuse of discretion in the
sentence imposed by the trial court.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2014
-6-