Com. v. Figueroa, A. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALEX O’NEIL FIGUEROA :
:
Appellant : No. 1075 EDA 2018
Appeal from the Judgment of Sentence March 12, 2018
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0003240-2017
BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY BOWES, J.: FILED MARCH 01, 2019
Alex O’Neil Figueroa appeals from the judgment of sentence of ten to
twenty years of imprisonment imposed after he entered an open guilty plea
to aggravated assault. We affirm.
The factual basis for Appellant’s guilty plea was as follows. On the
afternoon of May 20, 2017, teenager Alberto Justiniano brought an ATV to
Allentown in the back of his truck. While driving around the streets of the
city, Mr. Justiniano was spotted by Appellant, who was eighteen years old at
the time. There is a history of bad blood between the families of Appellant
and Mr. Justiniano, apparently related to the younger sister of the latter
having a child with Appellant’s brother. Appellant ran towards Mr. Justiniano
while clasping the firearm tucked into his waistband. Appellant approached
Mr. Justiniano at his truck, they exchanged words, Appellant drew the firearm
and fired multiple shots at Mr. Justiniano at close range, and Appellant fled.
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Police responded and took Mr. Justiniano to the hospital, where he was treated
for a wound to his forearm. Mr. Justiniano had lasting issues with his hand,
which affected his ability to perform his work painting cars. See N.T. Guilty
Plea, 1/17/18, at 7-12.
Appellant was charged with attempted homicide, two counts of
aggravated assault (serious bodily injury and bodily injury, respectively), and
one count of firearms not to be carried without a license. Appellant agreed to
plead guilty to aggravated assault (serious bodily injury) in exchange for a
dismissal of the remaining charges, with no agreement as to sentencing. The
trial court accepted the plea and scheduled sentencing for March 12, 2018.
At the sentencing hearing, the trial court viewed video footage of the
incident and heard from Appellant and the mother of his girlfriend. Thus
informed, as well as having the benefit of a presentence investigation report,
the trial court sentenced Appellant to the statutory maximum of ten to twenty
years of imprisonment. Appellant filed a timely post-sentence motion seeking
modification of his sentence, which the trial court denied on March 23, 2018.
Appellant filed a timely notice of appeal, and both Appellant and the trial court
complied with Pa.R.A.P. 1925.
Appellant presents the following question for this Court’s consideration:
Whether the lower court abused its discretion in imposing a
manifestly excessive and unreasonable sentence for the
aggravated assault charge which is at the statutory maximum
limit when the court failed to consider any significant mitigating
factors, failed to apply and review any of the necessary factors as
set forth in 42 Pa.C.S.A. § 9721(b) and 42 Pa.C.S.A. § 9781(c)
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and (d) or otherwise failed to set forth appropriate reasons for its
deviation from the standard sentencing ranges and sentenced
[Appellant] based upon the court’s perceived belief as to the
seriousness of the crime and factors that were already considered
in the calculation of the appropriate sentencing guidelines?
Appellant’s brief at 7 (unnecessary capitalization omitted).
Appellant challenges the discretionary aspects of his sentence. As such,
the following principles apply to our consideration of whether review of the
merits of his claim is warranted.
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 motion for reconsideration of his sentence and a timely
notice of appeal. 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). Appellant claims that a substantial question is presented
by the facts that the trial court failed to set forth factually-supported reasons
for sentencing him above the aggravated guidelines range, based its sentence
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upon an improper factor, and ignored mitigating evidence. Appellant’s brief
at 10.
We conclude that Appellant has raised substantial questions, and hence
proceed to address the merits of his arguments. See, e.g., Commonwealth
v. Downing, 990 A.2d 788, 792 (Pa.Super. 2010) (“Appellant’s claim the trial
court relied on an improper factor raises a substantial question permitting
review.”); Commonwealth v. Hyland, 875 A.2d 1175, 1183 (Pa.Super.
2005) (concluding substantial question raised by allegation that sentencing
court imposed aggravated-range sentence without considering mitigating
factors); Commonwealth v. Simpson, 829 A.2d 334, 338 (Pa.Super. 2003)
(holding substantial question was presented by allegation that trial court failed
to state sufficient reasons for the sentence imposed).
The following principles apply to our substantive review of Appellant’s
claim. “When reviewing sentencing matters, this Court must accord the
sentencing court great weight as it is in the 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
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reference to the record, 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
unreasonable decision.
Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014).
A trial court’s sentence “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. § 9721(b). “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.” Antidormi, supra at 761 (citations and
quotation marks omitted).
Appellant argues that the trial court did not attempt to balance the
mitigating considerations against the seriousness of the offense in imposing a
sentence beyond the aggravated range of the guidelines. Appellant’s brief at
15. Appellant contends that the trial court improperly concentrated on its
belief that the shooting appeared to be an attempted homicide, and “the
possibility that there were other individuals, perhaps children[,] nearby who
could have been struck by a bullet[,]” yet “failed to consider that [Appellant]
may have reasonably acted in the belief that the victim was reaching into the
cab of the pickup truck to obtain a gun to use against him.” Id. Appellant
further complains that the trial court determined that Appellant posed an
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“extreme danger to others even though [his] past history had only limited
incidences of any violence or public danger.” Id. at 16.
From our review of the sentencing hearing transcript, we discern no
abuse of the trial court’s discretion. First, the trial court reviewed Appellant’s
presentence investigation report, and thus is presumed to have properly
considered and weighed all relevant sentencing factors. See, e.g.,
Commonwealth v. Kitchen, 162 A.3d 1140, 1147 (Pa.Super. 2017). The
court’s weighing of the mitigating evidence Appellant presented is further
borne out by the record. The court entertained the testimony of Rose Allen,
the mother of Appellant’s girlfriend, that Appellant’s family was “completely
shattered” when his mother had died before Appellant was a teenager, that
he knew that he needed to change, and that, since he had moved into her
home, he had started to change under her guidance. N.T. Sentencing,
3/12/18, at 6-8. However, the trial court rejected her testimony on the basis
that she had only known Appellant for one year, that Appellant had been
involved in criminal activity since 2010 (including another aggravated assault
in 2014), and that Appellant clearly had not changed, given that he admitted
to the presentence investigator that he was still an active gang member in
prison. Id. at 7-8, 17.
The court also listened to Appellant’s contentions that Mr. Justiniano was
known to carry a gun, that he had threatened Appellant’s father, and that
Appellant only fired his weapon because he believed Mr. Justiniano was
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reaching into the truck for his own firearm. Id. at 11-12. The trial court did
not find this supported by the video of the incident, which it described as
follows: “This guy on the video stood in the center of the street with kids
freaking running everywhere, aimed that gun just like this and pulled off three
shots.” Id. at 10. Thus, the trial court did not decline to consider Appellant’s
mitigating factors; rather, it determined that they were entitled to little or no
weight under the circumstances. This Court “cannot re-weigh the sentencing
factors and impose our judgment in the place of the sentencing court.”
Macias, supra at 778.
Nor did the trial court fail to place on the record its reasons for imposing
the statutory maximum sentence, which was above the aggravated range of
ninety-six months of incarceration. The court offered the following
explanation for its decision:
So [Appellant], whatever the background, whatever you
thought and were wrong about, it was broad daylight. There were
little children running everywhere right near the Boys and Girls
Club, and, you know, just pulled out a gun and started shooting.
Just imagine how you'd feel if one those bad shots that you made
hit a kid and killed them. So this, except for your bad aim, would
have ended your life as well with a life sentence likely.
So your benefit is they allowed you to plead guilty to the
aggravated assault. I'm not willing to do anything more for you
than that. And sometimes the statutory max is there for a reason.
You fired three shots, not one, and that, to me, is an intent to kill,
but I will accept your plea bargain as an open plea to the
aggravated assault . . . . This case is beyond the aggravated
range for the following reasons:
[Appellant] is an extreme danger to the community, also a
danger to other children in the area, [Appellant’s] prior record
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includes a prior assault, an aggravated assault. [Appellant] took
multiple shots at the victim with a handgun, and his actions rise
to the level of attempted homicide.
N.T. Sentencing, 3/12/18, at 19-20 (unnecessary capitalization omitted).
It is clear that the trial court did not improperly punish Appellant for
charges that had been dismissed in addition to the aggravated assault to
which he had pled guilty, but rather properly considered the extremely
dangerous circumstances of the aggravated assault in determining that the
most severe penalty allowable for that crime was warranted. Compare
Commonwealth v. Stewart, 867 A.2d 589, 593 (Pa.Super. 2005)
(remanding for resentencing where trial court indicated it was imposing
aggravated-range sentence for statutory sexual assault because two counts
of involuntary deviate sexual intercourse and another count of sexual assault
had been nolle prossed as part of the plea agreement), with Commonwealth
v. Miller, 965 A.2d 276, 280 (Pa.Super. 2009) (finding no abuse of discretion
for court to consider risk posed to firefighters and police by fire in murder
victim’s house when sentencing on guilty plea to third-degree murder
although arson charge had been nolle prossed as part of the plea agreement).
Thus, the record establishes that trial court took into accont the relevant
factors and explained the reasons for its sentence. Appellant had been leading
a life of crime since he was a young boy and previous attempts at rehabilitation
had obviously been unsuccessful, given his escalating violence and adherence
to his gang affiliation while in prison awaiting sentencing. The particular
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circumstances of this aggravated assault showed not only the intent to kill Mr.
Justiniano, but an indifference to the risk of death or serious injury posed to
others in the city street in the middle of the afternoon. Accordingly, the trial
court acted within its discretion in sentencing Appellant to the statutory
maximum for aggravated assault. No relief is due.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/1/19
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