Com. v. Rodriguez, J.

J-S65006-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSE RODRIGUEZ
Appellant No. 3650 EDA 2016
Appeal from the Judgment of Sentence July 21, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014026-2012
MC-51-CR-0023002-2012
BEFORE: OLSON, J., OTT, J. and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 19, 2017
Appellant, Jose Rodriguez, appeals from the judgment of sentence
entered on July 21, 2016. We affirm.
At docket number CP-51-CR-009966-2011 (hereinafter “docket
number 9966-2011”), the Commonwealth charged Appellant with crimes
that included possession of marijuana with the intent to deliver (hereinafter
“PWID”) and criminal conspiracy.1 The information alleged that Appellant
committed the charged crimes on May 31, 2011. Commonwealth’s
Information, 9/3/11, at 1.
Appellant entered a negotiated guilty plea to PWID and conspiracy at
docket number 9966-2011 and, on November 3, 2011, the trial court
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1 35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 903, respectively.
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sentenced Appellant to serve an aggregate term of four years of probation
for his convictions. See Sentencing Order, 11/3/11, at 1.
At docket number CP-51-CR-0014026-2012 (hereinafter “docket
number 14026-2012”), the Commonwealth charged Appellant with crimes
that included possession of heroin with the intent to deliver (hereinafter
“PWID”) and criminal conspiracy.2 The information alleged that Appellant
committed the charged crimes on June 5, 2012. Commonwealth’s
Information, 12/5/12, at 1.
Appellant entered a negotiated guilty plea to PWID and conspiracy at
docket number 14026-2012 and, on January 16, 2013, the trial court
sentenced Appellant to serve an aggregate term of 12 months of
intermediate punishment, followed by two years of probation, for his
convictions at that docket number. See Sentencing Order, 1/16/13, at 1.
Appellant’s convictions at docket number 14026-2012 caused him to
violate the conditions of his probation at docket number 9966-2011. Thus,
following a violation of probation hearing at docket number 9966-2011, the
trial court resentenced Appellant on September 10, 2014, to serve an
aggregate term of five years of probation. See Sentencing Order, 9/10/14,
at 1.
As the trial court explained:
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2 35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 903, respectively.
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On May 31, 2015, while [Appellant was on probation at both
of the above docket numbers, Appellant] was arrested for
attempted murder and related charges. On March 8, 2016,
[Appellant] was found guilty of attempted murder and
related charges[ and,] on May 13, 2016, [Appellant] was
sentenced to [serve 12 to 25 years in prison,] followed by
five [] years of probation [for the convictions].
Trial Court Opinion, 3/3/17, at 1 (some internal capitalization omitted).
On July 21, 2016, the trial court held a violation of probation hearing
at docket numbers 9966-2011 and 14026-2012. The trial court found that
Appellant’s attempted murder conviction placed him in direct violation of the
terms of his probation at both docket numbers. N.T. VOP Hearing, 7/21/16,
at 5. The trial court then revoked Appellant’s probation at both docket
numbers and sentenced Appellant to serve a term of five to ten years in
prison at docket number 9966-2011 and to serve a term of five to ten years
in prison at docket number 14026-2012. Id. at 5-6. The trial court ordered
that the terms of imprisonment be served consecutively to one another and
consecutively to the term of imprisonment Appellant received at the docket
number encompassing his attempted murder conviction. Id.
On July 22, 2016, Appellant filed a “Petition to Vacate and Reconsider
VOP Sentence” (hereinafter “Appellant’s Motion to Modify Sentence”) and
listed both docket numbers in the caption. See Appellant’s Motion to Modify
Sentence, 7/22/16, at 1. Within Appellant’s motion to modify, Appellant
requested that the trial court vacate his sentences at docket numbers 9966-
2011 and 14026-2012 because his counsel “had a conflict of interest in this
matter and should not have represented [Appellant] in this matter.” Id. at
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1-2. Further, Appellant claimed that his sentences were manifestly
excessive, as they “far surpassed what was required to protect the public,
the complainant or the community, and was well beyond what was
necessary to foster [Appellant’s] rehabilitation.” Id. at 2.
On July 26, 2016, the trial court vacated Appellant’s sentences at
docket numbers 9966-2011 and 14026-2012, appointed new counsel to
represent Appellant, and scheduled a resentencing hearing for a later date.
Trial Court Order, 7/26/16, at 1.
The trial court held the resentencing hearing on October 13, 2016. At
the conclusion of the hearing, the trial court resentenced Appellant to serve
the same terms of incarceration that it originally imposed. N.T.
Resentencing Hearing, 10/13/16, at 8-9. Moreover, the trial court noted on
both dockets that Appellant’s “motion for reconsideration of VOP sentence”
was denied. See Docket Number 9966-2011, at Entry 10/13/16; Docket
Number 14026-2012, at Entry 10/13/16.
On November 12, 2016, Appellant filed timely notices of appeal at both
docket numbers. The current appeal is from Appellant’s judgment of
sentence at docket number 14026-2012.3 Appellant raises one claim in this
appeal:
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3Appellant’s appeal from the judgment of sentence at docket number 9966-
2011 is addressed in a separate memorandum at No. 3508 EDA 2016.
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Whether the trial court abused its discretion when it
sentenced Appellant to an aggregate sentence of [five to
ten] years’ incarceration, which did not follow the dictates of
42 Pa.C.S. § 9721(b) that requires the court to at least
consider the particular circumstances of the offense and the
character of the defendant[?]
Appellant’s Brief at 7.
Appellant’s claim challenges the discretionary aspects of his sentence.
See Commonwealth v. Lee, 876 A.2d 408 (Pa. Super. 2005) (claim that
the trial court erred in imposing an excessive sentence is a challenge to the
discretionary aspects of a sentence); Commonwealth v. Gonzalez-
Dejusus, 994 A.2d 595 (Pa. Super. 2010) (claim that the trial court erred in
imposing consecutive sentences is a challenge to the discretionary aspects of
a sentence).
We note that, in an appeal following the revocation of probation, our
scope of review includes discretionary aspects of sentencing claims.
Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (en
banc). With respect to our standard of review, we have held that
“sentencing is a matter vested in the sound discretion of the sentencing
judge, whose judgment will not be disturbed absent an abuse of discretion.”
Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 2001).
Moreover, pursuant to statute, Appellant does not have an automatic right to
appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A.
§ 9781(b). Instead, Appellant must petition this Court for permission to
appeal the discretionary aspects of his sentence. Id.
As this Court has explained:
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[t]o reach the merits of a discretionary sentencing issue, we
conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, Pa.R.A.P. 902,
903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify
sentence, Pa.R.Crim.P. 720 [and 708(E)]; (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. § 9781(b).
Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007); see also
Cartrette, 83 A.3d at 1042 (“issues challenging the discretionary aspects of
a sentence [following the revocation of probation] must be raised in a post-
sentence motion or by presenting the claim to the trial court during the
sentencing proceedings. Absent such efforts, an objection to a discretionary
aspect of a sentence is waived”); Commonwealth v. Kalichak, 943 A.2d
285, 289 (Pa. Super. 2008) (“when a court revokes probation and imposes a
new sentence, a criminal defendant needs to preserve challenges to the
discretionary aspects of that new sentence either by objecting during the
revocation sentencing or by filing a [motion to modify] sentence”).
As our Supreme Court has held, the determination of whether a
substantial question exists must be done prior to – and be divorced from –
the determination of the potential merits of an issue. Commonwealth v.
Tuladziecki, 522 A.2d 17, 19 (Pa. 1987). If it were otherwise, a challenger
would “in effect obtain[] an appeal as of right from the discretionary aspects
of a sentence” – a result that would violate statutory law. Id. Further, as
we have held:
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An appellant who seeks to challenge the discretionary
aspects of his or her sentence must provide a separate
statement, pursuant to Rule of Appellate Procedure 2119(f),
specifying where the sentence falls in relation to the
Sentencing Guidelines and what particular provision of the
Sentencing Code has been violated. The 2119(f) statement
must specify what fundamental norm the sentence violates
and the manner in which it violates that norm.
Commonwealth v. Johnson, 873 A.2d 704, 708 (Pa. Super. 2005)
(internal citations omitted); see also Commonwealth v. Zirkle, 107 A.3d
127, 132-134 (Pa. Super. 2014) (“[a]t a minimum, the Rule 2119(f)
statement must articulate what particular provision of the code is violated,
what fundamental norms the sentence violates, and the manner in which it
violates that norm”) (internal quotations and citations omitted).
Appellant’s Rule 2119(f) statement simply declares:
Appellant argues that his sentence is not in accordance with
42 Pa.C.S. § 9721, which dictates the considerations and
procedures for judges at sentencing, and this raises a
substantial question.
Appellant’s Brief at 15.
On appeal, the Commonwealth objects to Appellant’s Rule 2119(f)
statement and claims that, since Appellant failed to satisfy the minimum
requirements of Rule 2119(f), Appellant’s discretionary aspect of sentencing
claim is waived. Commonwealth’s Brief at 6. We agree. See, e.g.,
Commonwealth v. Griffin, 149 A.3d 349 (Pa. Super. 2016) (“[i]f the
Commonwealth objects to the appellant's failure to comply with Pa.R.A.P.
2119(f), the sentencing claim is waived for purposes of review”);
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Commonwealth v. Karns, 50 A.3d 158, 166 (Pa. Super. 2012) (“[i]f a
defendant fails to include an issue in his Rule 2119(f) statement, and the
Commonwealth objects, then the issue is waived and this Court may not
review the claim”) (internal quotations and citations omitted).
Appellant’s boilerplate Rule 2119(f) statement does not satisfy the
minimum requirements of the rule. Zirkle, 107 A.3d at 132-134 (Pa. Super.
2014) (“[a]t a minimum, the Rule 2119(f) statement must articulate what
particular provision of the code is violated, what fundamental norms the
sentence violates, and the manner in which it violates that norm”) (internal
quotations and citations omitted). To be sure, since Appellant’s Rule 2119(f)
statement consists of mere boilerplate, the only way this Court could
possibly determine whether Appellant has raised a substantial claim on
appeal is to review the argument section of Appellant’s brief. Yet, as our
Supreme Court has held:
[the] Superior Court [is] not . . . permitted to rely on its
assessment of the argument on the merits of the
[discretionary aspects] issue to justify post hoc a
determination that a substantial question exists. If this
determination is not made prior to examination of and
ruling on the merits of the issue of the appropriateness of
the sentence, the [challenger] has in effect obtained an
appeal as of right from the discretionary aspects of a
sentence. It is elementary that such an enlargement of the
appeal rights of a party cannot be accomplished by rule of
court. For this reason it is essential that the rules of
procedure governing appeals such as this be followed
precisely.
Tuladziecki, 522 A.2d at 19.
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Therefore, in this case, since Appellant has failed to comply with the
minimum requirements of Rule 2119(f) and since the Commonwealth has
objected to Appellant’s failure, we must conclude that Appellant has waived
his discretionary aspect of sentencing claim.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/19/2017
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