Com. v. Velazquez, L. ( 2023 )

J-S06002-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LUIS MIGUEL VELAZQUEZ :
:
Appellant : No. 1306 MDA 2022
Appeal from the Judgment of Sentence Entered November 12, 2020
In the Court of Common Pleas of Berks County
Criminal Division at No.: CP-06-CR-0006168-2017
BEFORE: STABILE, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED: JUNE 6, 2023
Appellant, Luis Miguel Velazquez, appeals from the judgment of
sentence entered in Court of Common Pleas of Berks County on November 12,
2020. On appeal, Appellant challenges the discretionary aspects of his
sentence. Upon review, we affirm.
The trial court summarized the factual and procedural background of the
instant case as follows.
On December 21, 2016, Appellant [] entered an open plea to one
count of persons not to possess, use, manufacture, control, sell or
transfer firearms, two counts of delivery of a controlled substance,
one count of receiving stolen property, and four counts of
possession with intent to deliver a controlled substance. The same
day, [the trial court] sentenced [Appellant] to an aggregate term
of incarceration of seven and one-half (7½) to twenty-five (25)
years in a state correctional institute[.]
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* Former Justice specially assigned to the Superior Court.
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On November 19, 2020, [Appellant], through plea counsel, filed
[a] post-sentence motion seeking modification of sentence and
claiming that the sentence imposed was unreasonable and
excessive. The [trial court] denied the motion by order dated
November 24, 2020. No appeal was taken.
On January 6, 2021, [Appellant], through plea counsel[,] filed a
petition to appeal nunc pro tunc. By order dated January 7, 2021,
[the trial court] denied the petition.
On June 16, 2021, [Appellant], again through plea counsel, filed
a PCRA petition, his first, alleging plea counsel’s ineffectiveness in
failing to file a timely notice of appeal. On July 21, [the PCRA
court appointed counsel to assist Appellant in the PCRA
proceedings]. After several extensions, PCRA counsel filed an
amended PCRA petition on July 7, 2022, raising plea counsel’s
ineffectiveness. An evidentiary hearing was held on August 15,
2022, upon the conclusion of which [the PCRA court] granted the
relief requested and reinstated [Appellant]’s direct appeal rights
nunc pro tunc.
A notice of appeal was filed September 13, 2022, and [the trial
court] ordered [Appellant] to file a concise statement of matters
complained of on appeal, pursuant to Pa.R.A.P. 1925(b).
[Appellant] filed a concise statement on October 11, 2022.
Trial Court Opinion, 10/17/22, at 1-2 (unnecessary capitalization and
footnotes omitted).
Appellant challenges the discretionary aspects of his sentence.1 As this
Court observed in Commonwealth v. Crawford, 257 A.3d 75 (Pa. Super.
2021):
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1While the statement of question involved on appeal includes numerous issues
and sub-issues for our review, the argument section of the brief focuses on
one issue only, which Appellant summarizes as follows: “Appellant asserts that
his sentence was excessive and insufficient consideration was given to
(Footnote Continued Next Page)
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The right to appeal the discretionary aspects of one’s sentence is
not absolute, and the jurisdiction of this Court must be properly
invoked. To raise a substantial question, an appellant must satisfy
the following four-part test:
(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, see 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. The determination of whether a particular
issue raises a substantial question is to be evaluated on a
case-by-case basis. Generally, however, in order to
establish a substantial question, the appellant must show
actions by the sentencing court inconsistent with the
Sentencing Code or contrary to the fundamental norms
underlying the sentencing process.
Id. at 78 (quoting Commonwealth v. Dunphy, 20 A.3d 1215, 1220-21 (Pa.
Super. 2011)).
Our review of the record confirms that Appellant filed a timely notice of
appeal and that he properly preserved the issue in his motion to reconsider
the sentence. Further, he has included a Rule 2119(f) statement in his brief
filed with this Court. Therefore, we must determine whether there is a
substantial question that Appellant’s sentence is not appropriate under the
Sentencing Code.
____________________________________________
Appellant’s [] substantial cooperation with law enforcement. As such, the
[trial court] failed to take into consideration the relevant mitigating factors
when promulgating the sentence imposed.” Appellant’s Brief at 10. Our
review will be limited to the above issue.
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The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825,
828 (Pa. Super. 2007). We have found that a substantial question exists
“when the 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.” Commonwealth v. Phillips, 946 A.2d 103, 112
(Pa. Super. 2008) (citation omitted), appeal denied, 964 A.2d 895 (Pa.
2009). “[W]e cannot look beyond the statement of questions presented and
the prefatory [Rule] 2119(f) statement to determine whether a substantial
question exists.” Commonwealth v. Christine, 78 A.3d 1, 10 (Pa. Super.
2013), aff’d, 125 A.3d 394 (Pa. 2015).
It is settled that this Court does not accept bald assertions of sentencing
errors. See Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super.
2006). When we examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists, “[o]ur inquiry must focus on the
reasons for which the appeal is sought, in contrast to the facts underlying the
appeal, which are necessary only to decide the appeal on the merits.”
Commonwealth v. Ahmad, 961 A.2d 884, 886-87 (Pa. Super. 2008)
(quoting Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)).
A Rule 2119(f) statement is inadequate when it “contains incantations of
statutory provisions and pronouncements of conclusions of law[.]”
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Commonwealth v. Bullock, 868 A.2d 516, 528 (Pa. Super. 2005) (citation
omitted).
Appellant argues that the trial court abused its discretion by failing to
“properly weigh” the “mitigating evidence of his extensive consideration with
law enforcement against the remaining factors in Section 9721(b).”
Appellant’s Brief at 8.2
Quoting Commonwealth v. Disalvo, 70 A.3d 900 (Pa. Super. 2013),
in Commonwealth v. Patterson, 180 A.3d 1217 (Pa. Super. 2018), we
noted,
“[T]his Court has held on numerous occasions that a claim of
inadequate consideration of mitigating factors does not raise a
substantial question for our review.” See also Commonwealth
v. Kraft, 737 A.2d 755, 757 (Pa. Super. 1999), appeal
denied, 560 Pa. 742, 747 A.2d 366 (1999) (determining
appellant’s claim that sentence of incarceration for [driving under
suspension] violation was excessive because sentencing court
failed to adequately consider certain mitigating factors did not
raise substantial question).
Id. at 1233 (quoting Disalvo, 70 A.3d at 903) (additional citations omitted).
See also Crawford, 257 A.3d at 79 (citing Commonwealth v. Cannon, 954
A.2d 1222, 1228-29 (Pa. Super. 2008) and Commonwealth v. Eline, 940
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2 To the extent that Appellant’s challenge can be construed as asking us to
reweigh the mitigating circumstances against the factors set forth in Section
9721(b), it is well-established that “the weighing of factors under 42 Pa.C.S.A.
§ 9721(b) is exclusively for the sentencing court, and an appellate court may
not substitute its own weighing of those factors.” See Commonwealth v.
Bricker, 41 A.3d 872, 876 (Pa. Super. 2012) (citing Commonwealth v.
Bowen, 975 a.2d 1120, 1123-24 (Pa. Super. 2009).
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A.2d 421, 435 (Pa. Super. 2007)). Consistent with these cases, we conclude
that Appellant failed to raise a substantial question with respect to his
excessiveness claim premised on the inadequate consideration of mitigating
factors.
Even if his discretionary aspect of sentencing claim raised a substantial
question, Appellant would not be entitled to relief. Our well-settled standard
of review concerning the discretionary aspects of sentencing is as follows:
[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 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.
Patterson, 180 A.3d at 1231-32 (quoting Commonwealth v. Moury, 992
A.2d 162, 169–170 (Pa. Super. 2010) (citation omitted)).
Here, the trial court explained that
[b]ased on the offenses to which he was pleading, the maximum
permissible sentence to which [Appellant] was potentially exposed
was one hundred forty (140) years of incarceration and up to
$885,000 in fines. At the sentencing hearing, the Commonwealth
provided its recommendation to the court, which was an
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aggregate sentence of eight and one-half (8½) to twenty-five (25)
years of incarceration. The Commonwealth noted that the
mitigated sentences it sought in some of the offenses were in
consideration of information that [Appellant] provided to law
enforcement.
We heard from three witnesses, including two detectives, on
[Appellant]’s behalf, who detailed their knowledge of [Appellant]’s
cooperation with authorities and how the information he provided
assisted law enforcement. We also received documents
evidencing [Appellant]’s completion of various drug and
counseling programs while incarcerated. [Appellant] then
exercised his right of allocution.
The [trial] court, in imposing the sentence, reviewed a PSI
prepared about [Appellant], and expressed that the PSI informed
[the trial court]’s sentence, which demonstrated that [the trial
court was] aware of the relevant information regarding
[Appellant]’s character and weighed those considerations along
with mitigating statutory factors, as well as satisfying the
requirement that reasons for imposing sentence be placed on the
record. [The trial court] likewise expressed that [it] took into
account the testimony from the various witnesses and information
presented at the sentencing hearing. The sentences imposed by
[the trial court] were all within, or slightly below the standard
range, and reflected [the trial court]’s deep consideration of the
sentencing factors.
Trial Court Opinion, 10/17/22, at 4 (quotation marks and citations omitted).
In light of the foregoing, and upon review of the record, see N.T. Guilty
Plea and Sentencing Hearing, 11/12/20, at 11-30, it is clear that Appellant
has failed to “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.”
Disalvo, 70 A.3d at 903 (citation omitted); see also Patterson, supra.-7-
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While Appellant would have preferred the sentencing court give more
weight to Appellant’s cooperation, this is not to say that the sentencing court
did not account for or did not account adequately for Appellant’s cooperation.
To the contrary, the sentencing court fully appreciated the value of Appellant’s
cooperation, commenting on a witness’s statement as follows: “I did not view
the Commonwealth’s presentation as attempting to diminish the value of what
[Appellant] apparently has contributed here. Having worked both sides of the
street, I understand fully the value of having corroborating information even
though it might not result in testimony. So you need not – you need not sell
me on that principle.” N.T., Guilty Plea and Sentencing Hearing, at 16.
To the extent Appellant’s argument can be construed as arguing that
the trial court abused its discretion in not providing a detailed, step-by-step
analysis and dissertation of its reasons for the sentence imposed, well-
established case law refutes Appellant’s argument.
In Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988), our Supreme
Court stated:
Where pre-sentence 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. A 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
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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.
Id. at 18 (emphasis added). Here the record shows, inter alia, that the trial
court received and took into account the PSI, and reviewed “all the information
that [it] gleaned [at sentencing] between the testimony of the witnesses and
[Appellant]’s allocution and the recommendations of the parties.” N.T., Guilty
Plea and Sentencing Hearing, at 27. Accordingly, the claim has no merit. See
Devers, supra.
Because Appellant has failed to demonstrate an abuse of discretion on
the part of the trial court, Appellant would not be entitled to relief on his
challenge of the discretionary aspects of his sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/06/2023
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