Com. v. Herrera-Ortiz, A. ( 2019 )

J. S62040/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ALFREDO HERRERA-ORTIZ, : No. 1383 EDA 2017
:
Appellant :
Appeal from the Judgment of Sentence, November 18, 2016,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0011805-2014
BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 14, 2019
Alfredo Herrera-Ortiz appeals the judgment of sentence in which the
Court of Common Pleas of Philadelphia County sentenced him to serve an
aggregate sentence of 15 to 30 years’ imprisonment followed by 10 years’
probation1 for his convictions for rape of a child, involuntary deviate sexual
intercourse with a child, unlawful conduct with a minor, endangering the
welfare of a child, and corruption of a minor.2 After careful review, we
affirm.
The factual history, as stated by the trial court, is as follows:
1 Appellant received a sentence of 10 to 20 years’ imprisonment for rape,
5 to 10 years for involuntary deviate sexual intercourse with a child, and
10 years of probation for unlawful conduct with a minor. He received no
further penalty on the remaining charges.
2 18 Pa.C.S.A. § 3121, 3123, 6318, 4304, and 6301, respectively.
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During the no-contest plea hearing the
Commonwealth recited the following facts into the
record:
If this case proceeded to trial, the
Commonwealth would have proven
beyond a reasonable doubt that on
September 14th of 2014 . . ., here in
Philadelphia, [appellant] resided at that
location. He had a bedroom on the
second floor. He was a family friend. On
that date, the victim in this case, her
name is [V.M.], who, at the time was age
six -- her birthday is [] -- she returned
from the park with her brother,
who’s [sic] name is [J.M.], same spelling,
who at the time was age 8. They went
upstairs to the second floor of the home.
[Appellant] asked both children to come
into his bedroom and he locked the door.
At that point, both children were on the
bed. [Appellant] proceeded to remove
[V.M.’s] pants. And he penetrated her
both vaginal [sic] and anally with his
penis. The mother, whose name is
[M.A.], was calling out for the children.
She did not -- they weren’t answering, so
she went upstairs. Eventually the door
was opened and the children explained to
her what happened. At that point, the
police were called to the home.
[Appellant] was arrested.
....
[Appellant] averred that he did not contest the
summary of the facts placed on the record.
Trial court opinion, 1/23/18 at 2 (some brackets in original; citations to
record omitted).
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Initially, appellant was tried in a jury trial in late June and early July of
2016. On July 5, 2016, the trial court declared a mistrial after the jury
announced that it could not reach a verdict because it was hopelessly
deadlocked. On August 16, 2016, after the selection of several jurors,
appellant entered a plea of no contest. On November 18, 2016, the trial
court sentenced appellant. On November 27, 2016, appellant filed a
post-sentence motion. On March 29, 2017, the post-sentence motion was
denied by operation of law.
On April 27, 2017, appellant filed a notice of appeal. On May 22,
2017, the trial court ordered appellant to file a concise statement of errors
complained of on appeal, pursuant to Pa.R.A.P. 1925(b). On September 8,
2017, after receiving an extension, appellant complied with the order. On
January 23, 2018, the trial court filed an opinion, pursuant to
Pa.R.A.P. 1925(a).
Appellant raises the following issue for this court’s review: “Did not
the trial court err and abuse its discretion when it imposed a manifestly
excessive and clearly unreasonable sentence of fifteen to thirty years of
incarceration following a mistrial and a plea of nolo contendere, where
appellant . . . presented significant mitigation?” (Appellant’s brief at 3.)
Appellant challenges the discretionary aspects of his sentence.
[T]he proper standard of review when considering
whether to affirm the sentencing court’s
determination is an abuse of discretion. . . . [A]n
abuse of discretion is more than a mere error of
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judgment; thus, a sentencing court will not have
abused its discretion unless the record discloses that
the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice,
bias or ill-will. In more expansive terms, our Court
recently offered: An abuse of discretion may not be
found merely because an appellate court might have
reached a different conclusion, but requires a result
of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so
as to be clearly erroneous.
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate
review is that the sentencing court is in the best
position to determine the proper penalty for a
particular offense based upon an evaluation of the
individual circumstances before it.
Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)
(citation omitted).
Challenges to the discretionary aspects of sentencing
do not entitle an appellant to review as of right.
Commonwealth v. Sierra, [752 A.2d 910, 912
(Pa.Super. 2000)]. An appellant challenging the
discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
[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).
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Moury, 992 A.2d at 170 (citation omitted).
Here, we begin our analysis by determining whether appellant has
complied with the procedural requirements of challenging the discretionary
aspects of his sentence. First, appellant timely filed his notice of appeal
pursuant to Pa.R.A.P. 903. Second, appellant raised the issue that the trial
court imposed a sentence that was excessive and unreasonable and did not
take into account his rehabilitative needs and other mitigating factors which
essentially is the issue before this court. Third, appellant included a
Rule 2119(f) statement in his brief in which he avers he raises a substantial
question because the trial court imposed an excessive sentence and failed to
consider mitigating factors. Fourth, this court must next determine whether
appellant raises a substantial question for this court’s review.
We determine whether an appellant raises a substantial question on a
case-by-case basis. Commonwealth v. Swope, 123 A.3d 333 (Pa.Super.
2015). “A substantial question exists only when an 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.” Id. at 338 (citation omitted).
Appellant argues that the appeal presents a substantial question
because the trial court imposed an extremely harsh aggregate sentence
without considering mitigating factors and improperly considering that
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appellant pled nolo contendere. This court has held that an excessive
sentence claim coupled with an allegation that the trial court failed to
consider mitigating factors raised a substantial question. Commonwealth
v. Perry, 883 A.2d 599, 602 (Pa.Super. 2005). As appellant has presented
a substantial question, we will address this claim on the merits.
Appellant asserts that the trial court sentenced him to a sentence of
more than twice the lower end of the sentencing guidelines for rape.
Actually, the guidelines state that the minimum confinement for rape for a
person with a “0” for a prior record score is 72 months to the statutory limit.
On the rape conviction, appellant received a sentence of 10 to 20 years.
Therefore, the minimum sentence was not twice the lower end of the
guidelines and was within the standard range of the guidelines. This court
has determined that a standard range sentence is presumptively reasonable.
See, e.g., Commonwealth v. Fowler, 893 A.2d 758, 767 (Pa. Super.
2006). Thus, to succeed on this claim, appellant must show that “the case
involves circumstances where the application of the guidelines would be
clearly unreasonable[.]” 42 Pa.C.S.A. § 9781(c)(2).
Appellant argues that the sentence was unreasonable because the trial
court failed to consider mitigating factors. The trial court had the benefit of
a pre-sentence investigation report (“PSI”). “Where a [PSI] exist[s], we []
presume that the [trial court] was aware of relevant information regarding
the defendant’s character and weighed those considerations along with
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mitigating factors. A [PSI] constitutes the record and speaks for itself.”
Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa.Super. 2014),
appeal denied, 95 A.3d 275 (Pa. 2014). This court finds no merit to the
charge that the trial court did not consider appellant’s rehabilitative needs
when it fashioned the sentence so as to make the sentence unreasonable.
Appellant also asserts that the trial court’s imposition of consecutive
sentences for rape and involuntary deviate sexual intercourse with a child
was excessive especially when there is no indication that the trial court
considered any factors regarding his amenability to rehabilitation.
With respect to the contention that the trial court imposed consecutive
sentences, Section 9721 of the Sentencing Code (“Code”), 42 Pa.C.S.A.
§ 9721, permits the sentencing court to use its discretion to impose a
sentence consecutively or concurrently to other sentences that the
sentencing court is imposing. “In imposing a sentence, the trial judge may
determine whether, given the facts of a particular case, a sentence should
run consecutive to or concurrent with another sentence being imposed.”
Commonwealth v. Perry, 883 A.2d 599, 603 (Pa.Super. 2005).
Here, the trial court imposed consecutive standard range sentences for
the charges for which appellant pled nolo contendere. This court discerns
no abuse of discretion.
While appellant asserts that the trial court punished him excessively
for making his plea after the mistrial and after eight jurors were selected for
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the new trial, a review of the hearing transcript indicates that the trial court
commented on the horrific nature of the crime and the fact that the children
had to relive it at trial. See 42 Pa.C.S.A. § 9781(d)(1). The nature and
circumstances of the offense is one of the statutory factors a court shall
consider when imposing a sentence.
The trial court carefully considered the relevant factors set forth in
Section 9721(b) of the Code, 42 Pa.C.S.A. § 9721(b), when it sentenced
appellant. The trial court did not abuse its discretion when it imposed
consecutive sentences for appellant’s crimes.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/19
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