Com. v. Ramos, A. ( 2022 )

J-A05024-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AVELINO RAMOS :
:
Appellant : No. 836 MDA 2021
Appeal from the Judgment of Sentence Entered May 12, 2021,
in the Court of Common Pleas of Lancaster County,
Criminal Division at No(s): CP-36-CR-0002611-2020.
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AVELINO RAMOS :
:
Appellant : No. 837 MDA 2021
Appeal from the Judgment of Sentence Entered May 12, 2021,
in the Court of Common Pleas of Lancaster County,
Criminal Division at No(s): CP-36-CR-0002612-2020.
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AVELINO RAMOS :
:
Appellant : No. 838 MDA 2021
J-A05024-22
Appeal from the Judgment of Sentence Entered May 12, 2021,
in the Court of Common Pleas of Lancaster County,
Criminal Division at No(s): CP-36-CR-0002614-2020.
BEFORE: OLSON, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED: MARCH 10, 2022
Avelino Ramos appeals from the judgment of sentence of 2 to 10 years
imprisonment imposed following his open guilty pleas to delivery of heroin,
conspiracy to deliver heroin, and criminal use of a communication facility 1 at
three separate dockets. After review, we affirm.
On February 20, 2020, an undercover officer with the Lancaster City
Bureau of Police Selective Enforcement Unit approached Ramos on a step and
offered him $20 to buy heroin. Ramos got in the officer’s vehicle and directed
the officer to drive to the McDonald’s parking lot, where Ramos used his cell
phone to call a dealer from whom he had bought heroin before. Ramos
directed the officer to drive to Country Garden Six Pack. The officer gave
Ramos money. Ramos entered the store and returned with four stamp bags
of heroin, which he gave to the officer.
On February 27, 2020, the undercover officer arranged for another
heroin purchase by sending Ramos a text message. The officer met with
Ramos at McDonald’s; Ramos got in the officer’s vehicle and directed him to
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 903, and 18 Pa.C.S.A. § 7512(a),
respectively.
-2-
J-A05024-22
various locations to find heroin. They parked at South Marshall Street and
East Mifflin Street in Lancaster, where the officer gave Ramos money, and
Ramos bought five stamp bags of heroin from a man on a bicycle. Ramos
gave the heroin to the officer.
On February 28, 2020, the officer again arranged via text message for
Ramos to buy heroin. Ramos met the officer at the McDonald’s parking lot to
use his cell phone to call drug dealers to purchase heroin. He had the officer
drive to various locations and then pick up Carlos Flores at McDonald’s. The
officer gave Ramos money to buy heroin. Ramos had the officer drive to Green
Street and Pershing Avenue. There, Ramon Roman-Marquez gave four stamp
bags of heroin to Flores, who gave them to Ramos, who gave them to the
officer.
In connection with each transaction, Ramos was charged with delivery
of heroin, conspiracy to deliver heroin, and criminal use of a communication
facility. He entered open guilty pleas to all counts on March 22, 2021. The
sentencing court ordered a pre-sentence investigation report (PSI). On May
12, 2021, the sentencing court sentenced Ramos to an aggregate term of 2
to 10 years of incarceration, with the sentences for all counts and all dockets
to run concurrently to each other. Ramos filed a post-sentence motion on
May 18, 2021, which the sentencing court denied on May 19, 2021.
Ramos filed timely appeals at each docket, which this Court consolidated
upon Ramos’ request. The sentencing court and Ramos complied with
Pennsylvania Rule of Appellate Procedure 1925.
-3-
J-A05024-22
Ramos raises one issue on appeal:
I. Were the minimum and maximum sentences of two to ten
years’ incarceration in a state correctional institution clearly
unreasonable under the circumstances?
Ramos’ Brief at 6.
Ramos claims his sentence was excessive because the sentencing court
failed to consider mitigating factors. As such, he challenges the discretionary
aspects of his sentence. See Commonwealth v. Watson, 228 A.3d 928,
934–35 (Pa. Super. 2020). An appellant is not entitled to appellate review as
of right to challenge the discretionary aspects of sentencing.
Commonwealth v. Weir, 239 A.3d 25, 34 & nn.12–13 (Pa. 2020) (citing 42
Pa.C.S.A. § 9781(b) and Pa.R.A.P. 2119(f)). Rather, he must satisfy a four-
part test to invoke this Court’s jurisdiction to consider the merits:
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. Renninger, 2022 PA Super 2, *31 (filed Jan. 3, 2022)
(en banc) (quoting Commonwealth v. Beatty, 227 A.3d 1277, 1286–87 (Pa.
Super. 2020)).
Ramos met the first three requirements by filing a timely notice of
appeal, raising the issue in a post-sentence motion, and including a Rule
-4-
J-A05024-22
2119(f) statement in his brief. Therefore, we must consider whether Ramos
has raised a substantial question. Commonwealth v. Crawford, 257 A.3d
75, 78 (Pa. Super. 2021) (citing Commonwealth v. Paul, 925 A.2d 825, 828
(Pa. Super. 2007), and quoting Commonwealth v. Radecki, 180 A.3d 441,
468 (Pa. Super. 2018)).
In his question presented and his Rule 2119(f) statement, Ramos claims
that his minimum and maximum terms of incarceration are unreasonable and
so manifestly excessive as to constitute an abuse of discretion. Ramos’ Brief
at 12–14. He contends that the sentencing court did not consider mitigating
personal circumstances or facts of the offenses. Id. The Commonwealth
counters that Ramos has not raised a substantial question because the
sentencing court had a PSI that included mitigating factors. Commonwealth’s
Brief at 5–6 (citing Commonwealth v. Yanoff, 690 A.2d 260 (Pa. Super.
1997), and Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)).
A claim that a penalty is excessive or disproportionate to the gravity of
the offense can raise a substantial question. Commonwealth v. DiClaudio,
210 A.3d 1070, 1075–76 (Pa. Super. 2019) (citing Commonwealth v.
Malovich, 903 A.2d 1247, 1253 (Pa. Super. 2006)). Further, “an excessive
sentence claim—in conjunction with an assertion that the court failed to
consider mitigating factors—raises a substantial question.” Commonwealth
v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en banc) (quoting
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014)). We
-5-
J-A05024-22
conclude that Ramos has presented a substantial question. Therefore, we will
address the merits of his claim.
Our standard of review regarding challenges to the discretionary
aspects of sentencing is well-settled:
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.
Commonwealth v. Gonzalez, [] 109 A.3d 711, 731 (Pa. Super.
2015) (citation omitted).
[A] sentencing court abuses its discretion when it considers
the criminal act, but not the criminal himself. The
Sentencing Code prescribes individualized sentencing by
requiring the sentencing court to consider the protection of
the public, the gravity of the offense in relation to its impact
on the victim and the community, and the rehabilitative
needs of the defendant, [] and prohibiting a sentence of
total confinement without consideration of “the nature and
circumstances of the crime[,] and the history, character,
and condition of the defendant[.]” 42 Pa.C.S.[A.] § 9725.
Commonwealth v. Luketic, [] 162 A.3d 1149, 1160-61 (Pa.
Super. 2017) (some internal citations and quotation marks
omitted). The rationale behind such broad discretion and our
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, 169-70 (Pa. Super. 2010).
Commonwealth v. Moye, 2021 PA Super 225, *18–19, __ A.3d __ (filed
Nov. 19, 2021). The Judicial Code only allows an appellate court to vacate a
-6-
J-A05024-22
sentence imposed within the guidelines “where the application of the
guidelines would be clearly unreasonable.” 42 Pa.C.S.A. § 9781(c)(2);
accord Commonwealth v. Aulisio, 253 A.3d 338, 344–45 (Pa. Super.
2021). Upon review, we find no abuse of discretion.
Based on Ramos’ Prior Record Score (PRS) of 5, the standard range for
the minimum sentences at each of the drug offenses was 21 to 27 months.
The statutory maximum penalty was 15 years. 35 P.S. § 780-113(f)(1);
accord Commonwealth v. Mola, 838 A.2d 791, 792–93 (Pa. Super. 2003).
The sentencing court imposed a sentence in the middle of the standard range
and ordered all sentences to run concurrently. Ramos does not allege that
the sentencing court applied the guidelines erroneously. Therefore, we will
affirm the sentence imposed unless “the application of the guidelines would
be clearly unreasonable.” 42 Pa.C.S.A. § 9781(c)(2).
Ramos argues that even though his sentence was within the standard
range of the guidelines, it was clearly unreasonable and excessive based on
the circumstances of the offenses and of Ramos himself. Ramos emphasizes
in mitigation that he was not dealing drugs when the Selective Enforcement
Unit offered him $20 to buy heroin, which he accepted out of desperation.
Ramos’ Brief at 18. After Ramos committed the offenses, he obtained
housing, employment, and treatment for alcoholism. Id. His PRS of 5 was
based on felony convictions from before 1998; he had three misdemeanor
convictions from 1998 to 2006 and no other convictions before committing
the offenses in these cases. Id. at 19. His maximum sentence of 10 years
-7-
J-A05024-22
will render him under supervision until he is 63. Id. (citing Commonwealth
v. Coulverson, 34 A.3d 135, 148 (Pa. Super. 2011)). Additionally, Ramos
submits that a sentence of county incarceration with work release eligibility
would be appropriate and meet the requirements of 42 Pa.C.S.A. § 9721.
The sentencing court opinion provides that it considered all appropriate
factors, including the PSI, sentencing guidelines, and the mitigating factors
that Ramos provided. As evidence that it considered mitigation, the
sentencing court indicates that it imposed a sentence within the guidelines
and ordered all of Ramos’ sentences to run concurrently. The sentencing court
notes that Ramos’ guilty plea and admission to the allegations in the affidavits
shows his criminal culpability.
Likewise, the Commonwealth argues that Ramos’ sentence within the
guidelines was not clearly unreasonable based on the sentencing court’s
imposing minimum terms lower than the top of the standard range and
ordering all sentences to run concurrently. Commonwealth’s Brief at 6–7.
Upon thorough review of the record, we observe that the sentencing
court ordered a PSI, which both parties had the opportunity to review. N.T.
Guilty Plea, 3/22/21, at 5; N.T. Sentencing, 5/12/21, at 2. “Where [PSI]
reports exist, we shall continue to presume that the sentencing judge was
aware of relevant information regarding the defendant’s character and
weighed those considerations along with mitigating statutory factors.”
Commonwealth v. Watson, 228 A.3d 928, 936 (Pa. Super. 2020) (quoting
Devers, supra, 546 A.2d at 18). At sentencing, the Commonwealth
-8-
J-A05024-22
requested a minimum term at the top of the standard range. N.T. Sentencing,
5/12/21, at 2–3. Ramos and his attorney presented the mitigating factors
that Ramos now presents before this Court. Id. at 3–10. Despite the age of
Ramos’ prior convictions, there is no provision for offenses committed as an
adult to lapse. See 204 Pa. Code § 303.5. We note that unlike in
Coulverson, supra, there is no indication that the sentencing judge believed
that he was required to impose the statutory maximum sentence. Rather, the
record reflects that the sentencing court imposed thoughtful, individualized
minimum and maximum terms after considering all relevant factors. As such,
we do not find that Ramos’ sentence was an abuse of discretion or that the
sentence within the guidelines was clearly unreasonable. See 42 Pa.C.S.A.
§ 9781(c)(2). Therefore, we affirm the sentence imposed by the sentencing
court.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2022
-9-