Com. v. Gonzales, T. ( 2018 )

J-S05040-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TORRY DAVID GONZALES, :
:
Appellant : No. 1369 WDA 2017
Appeal from the Judgment of Sentence August 16, 2017
in the Court of Common Pleas of Venango County
Criminal Division at No(s): CP-61-CR-0000013-2008
BEFORE: OLSON, OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 28, 2018
Torry David Gonzales (Appellant) appeals from the August 16, 2017
judgment of sentence entered after the revocation of his probation. We
affirm.
The trial court summarized the factual and procedural history of this
case as follows.
On September 29, 2007, [Appellant] was arrested and
charged by criminal information with two counts of forgery (felony
3), access device fraud (felony 3), identify theft (misdemeanor 1),
and theft by deception (misdemeanor 1). On November 25, 2008,
[Appellant] was sentenced … for the above charges to a period of
sixty months [of] probation. After he served an unrelated jail
sentence, [Appellant] was released and began his sixty-month
probation sentence.
On July 10, 2017, the Commonwealth filed a petition to
revoke probation/parole based on [Appellant’s] conviction
received at [docket number] 195-2017 in Clearfield County, a
material violation of his probation agreement. At [docket number]
195-2017, [Appellant] was sentenced to a term of forty months
*Retired Senior Judge assigned to the Superior Court.
J-S05040-18
to ten years [of] incarceration. On August 8, 2017, [Appellant]
was resentenced at [this docket number by the trial court] for
material violations of his probation agreement. On count 2 –
forgery, [Appellant] was resentenced to two to seven years [of]
incarceration. On August 17, 2017, [Appellant] was resentenced
on count 1 – forgery to two to [seven] years [of] incarceration.
[The trial court] ordered that the two sentences … be run
concurrent with each other, but to be run consecutive to
[Appellant’s] Clearfield County sentence [].
[Appellant] filed a timely motion to reconsider and modify
sentence which was denied by [the trial court]. Thereafter,
[Appellant] filed a timely notice of appeal, and timely filed the
instant concise statement of [errors] complained of on appeal
pursuant to [the trial court’s Rule] 1925 order. [The trial court
filed an opinion in response.]
Trial Court Opinion, 10/17/2017, at 1-2 (unnecessary capitalization and
parenthetical numerals omitted).
On appeal, Appellant argues that the trial court “abused its discretion
by imposing a sentence without giving consideration to all the relevant
sentencing factors … including [Appellant’s] character and rehabilitative needs
and gravity of the offense.” Appellant’s Brief at 4.
Appellant challenges the discretionary aspects of his sentence. We
consider his issue mindful of the following.
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest 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 partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
***
-2-
J-S05040-18
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, 760-61 (Pa. Super. 2014)
(internal citations and quotation marks omitted).
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, 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. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)
(some citations omitted).
Here, Appellant filed a notice of appeal after preserving the issue by
filing a motion to modify sentence. Further, Appellant’s brief contains a
statement pursuant to Pa.R.A.P. 2119(f), claiming that the trial “court did not
adequately consider all of the relevant sentencing factors and sentenced him
only on the basis of his criminal record.” Appellant’s Brief at 8.
-3-
J-S05040-18
Regarding sentences imposed following the revocation of probation, the
Sentencing Code provides as follows:
The court shall not impose a sentence of total confinement upon
revocation unless it finds that:
(1) the defendant has been convicted of another
crime; or
(2) the conduct of the defendant indicates that it is
likely that he will commit another crime if he is not
imprisoned; or
(3) such a sentence is essential to vindicate the
authority of the court.
42 Pa.C.S. § 9771(c). Moreover, in addition to these considerations, a trial
court must also consider the factors set forth in subsection 9721(b) 1 when
imposing a sentence following the revocation of probation. Commonwealth
v. Derry, 150 A.3d 987, 995 (Pa. Super. 2016). Thus, “to the extent that
1 That subsection provides, in relevant part, that when imposing a judgment
of sentence,
the court shall follow the general principle that 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. … In every case in which
the court imposes a sentence for a felony or misdemeanor,
modifies a sentence, resentences an offender following revocation
of probation, county intermediate punishment or State
intermediate punishment or resentences following remand, the
court shall make as a part of the record, and disclose in open court
at the time of sentencing, a statement of the reason or reasons
for the sentence imposed.
42 Pa.C.S. § 9721(b).
-4-
J-S05040-18
[Appellant] challenges the sentencing court’s failure to consider [subs]ection
9721(b) factors,” he has raised a substantial question. Id. at 995.
Accordingly, we proceed to address the merits of Appellant’s claim.
Instantly, Appellant contends that the trial court abused its discretion
by focusing “only on [Appellant’s] past record and the circumstances
surrounding the conviction in Clearfield County in fashioning the sentence.”
Appellant’s Brief at 10. Specifically, he argues the following.
During the hearing, [Appellant] entreated the court to give
him the opportunity to “readjust” to society. [Appellant] admitted
that he has been in the criminal justice system for 14 years and
asked the court to consider a sentence concurrent with the 40
months to 10 years received in Clearfield County. A concurrent
sentence would expedite his entrance into society where
[Appellant] will have access to community resources including but
not limited to agencies that focus on housing, employment and
parenting. This will assist him in successful reintegration into the
community. Thus, a concurrent sentence would have
incorporated [Appellant’s] rehabilitative needs.
Id. (citation omitted).
At the time Appellant was sentenced, the trial court stated that it was
imposing a sentence of total confinement because Appellant “has been
convicted of another crime. The conduct of [Appellant] indicates [Appellant]
will commit another crime if not imprisoned. The sentence of imprisonment
is essential to vindicate the authority of the [trial c]ourt.” N.T., 8/8/2017, at
22; 8/16/2017, at 18.
In addition, the trial court offered the following explanation for its
sentence.
-5-
J-S05040-18
Given [Appellant’s] clear disregard for the laws of the
Commonwealth, evidenced by his convictions of additional crimes
while serving his probationary period for the above-captioned
case, [Appellant] made it clear to [the trial court] that his
character for unlawful activity makes him a danger to society as a
whole, and that a term of incarceration to be served after his
sentence at [docket number] 195-2017 is more than appropriate,
as well as conducive to [Appellant’s] rehabilitative needs.
Trial Court Opinion, 10/17/2017, at 3.
Moreover, at the time of sentencing, the trial court had the benefit of
Appellant’s pre-sentence investigation (PSI) report. “[W]here the sentencing
judge had the benefit of a [PSI] report, it will be presumed that he or she was
aware of the relevant information regarding the defendant’s character and
weighed those considerations along with mitigating statutory factors.”
Commonwealth v. Finnecy, 135 A.3d 1028, 1038 (Pa. Super. 2016). Based
on the foregoing, we conclude that the trial court did not abuse its discretion
in sentencing Appellant. Appellant essentially concedes that probation has
proven to be ineffective in rehabilitating him; thus, it was not an abuse of
discretion for the trial court to conclude that a prison sentence is necessary to
vindicate the authority of the court and protect the public. Accordingly, we
affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
-6-
J-S05040-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/2018
-7-