Com. v. Mendez, C.

J-S35022-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER A. MENDEZ :
:
Appellant : No. 1637 WDA 2016
Appeal from the Judgment of Sentence October 11, 2016
in the Court of Common Pleas of Venango County
Criminal Division at No(s): CP-61-CR-0000069-2015,
CP-61-CR-0000376-2016
BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY RANSOM, J.: FILED AUGUST 17, 2017
Appellant, Christopher A. Mendez, appeals from the judgment of
sentence of three to ten years of imprisonment, imposed following his guilty
plea to criminal trespass, endangering the welfare of children, and driving
under the influence.1 We affirm.
The following statement of facts and procedural history is garnered
from the trial court opinion, which is supported by the record. See Trial
Court Opinion, 12/14/2016, at 1-3. Following a hearing with the trial court
in March 2015, Appellant entered a guilty plea to criminal trespass. In May
2015, Appellant was sentenced to imprisonment for eight to twenty-four
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1
Respectively, see 18 Pa.C.S. §§ 3503(a)(1)(ii), 4304(a)(1); and 75 Pa.C.S.
§ 3802(a)(1).
*
Former Justice specially assigned to the Superior Court.
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months less one day, followed by two years of probation. Appellant was
given credit for time served. In September 2015, Appellant was paroled
until his maximum expiration date of January 2017.
In May 2016, Appellant was pulled over by law enforcement for driving
erratically. There was an odor of alcohol on his breath, and Appellant’s
speech was slurred. Two children, ages three and four, were in the car at
the time of this incident. Appellant was arrested. Thereafter, Appellant
stipulated to violation of his parole, which was revoked, and pleaded guilty
to endangering the welfare of children as well as driving under the influence
(“DUI”) – minor occupants.
In October 2016, Appellant was resentenced on the criminal trespass
to two to five years of imprisonment. Appellant was also sentenced to one
to five years of imprisonment for endangering the welfare of children, and
one to five years of imprisonment on the DUI - minor occupants2 to be
served concurrent to each other, but consecutive to the criminal trespass
conviction. This resulted in an aggregate term of three to ten years of
incarceration. Appellant was again given credit for time served. Appellant
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2
Although the instant DUI was Appellant’s first, which would typically limit
his sentence to six months maximum imprisonment, the presence of minors
in the vehicle resulted in the offense being graded as a first-degree
misdemeanor punishable by five years imprisonment. See 75 Pa.C.S. §
3803(b)(5).
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filed a motion for reconsideration of sentence, which was denied in October
2016.
Thereafter, Appellant timely filed an appeal and a court-ordered
Pa.R.A.P. 1925(b) statement. The trial court issued a responsive opinion.
Appellant presents the following question for our review:
1. Is the sentence imposed upon Mr. Mendez unreasonable,
manifestly excessive and thus an abuse of discretion?
Appellant’s Brief at 5.
In the sole issue before this Court, Appellant argues that his sentence
was manifestly excessive and that the court failed to adequately consider
evidence presented at sentencing. Appellant’s Brief at 17. Appellant’s
challenge is to the discretionary aspects of his sentence. See, e.g.,
Commonwealth v. Lutes, 793 A.2d 949, 964 (Pa. Super. 2002) (stating
claim that sentence is manifestly excessive challenges discretionary aspects
of sentencing).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d
910, 913 (Pa. Super. 2000). Prior to reaching the merits of a discretionary
sentencing issue:
[W]e 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
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that the sentence appealed from is not appropriate under
the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (most
citations omitted), appeal denied, 909 A.2d 303 (Pa. 2006).
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in his brief a
separate concise statement demonstrating that there is a substantial
question as to the appropriateness of the sentence under the Sentencing
Code. Commonwealth v. Mouzon, 812 A.2d 617, 621 (Pa. 2002);
Pa.R.A.P. 2119(f). “The requirement that an appellant separately set forth
the reasons relied upon for allowance of appeal furthers the purpose evident
in the Sentencing Code as a whole of limiting any challenges to the trial
court’s evaluation of the multitude of factors impinging on the sentencing
decision to exceptional cases.” Commonwealth v. Phillips, 946 A.2d
103, 112 (Pa. Super. 2008) (emphasis in original) (internal quotation marks
omitted), appeal denied, 954 A.2d 895 (Pa. 2008), cert. denied, 129 S. Ct.
2450, (2009).
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. See Commonwealth v. Anderson,
830 A.2d 1013, 1018 (Pa. Super. 2003). A substantial question exists “only
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.” Sierra, 752 A.2d at 912-13. A claim that a
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sentence is manifestly excessive might raise a substantial question if the
appellant’s Rule 2119(f) statement sufficiently articulates the manner in
which the sentence imposed violates a specific provision of the Sentencing
Code or the norms underlying the sentencing process. See Mouzon, 812
A.2d at 627. The court's exercise of discretion in imposing consecutive as
opposed to concurrent sentences is generally not viewed as raising a
substantial question. Commonwealth v. Gonzalez-Dejusus, 994 A.2d
595, 598 (Pa. Super. 2010); see also Commonwealth v. Hoag, 665 A.2d
1212, 1214 (Pa. Super. 1995) (explaining that a defendant is not entitled to
a ‘volume discount’ for his or her crimes).
As an initial matter, we note that Appellant timely filed a notice of
appeal, preserved the instant issue in a motion to reconsider sentence, and
included a Pa.R.A.P. 2119(f) statement in his brief. Therefore, our analysis
turns on whether there is a substantial question that the sentence appealed
from is inappropriate under the Sentencing Code. See 42 Pa.C.S.A. §
9781(b). We conclude Appellant has failed to present a substantial question
for our review.
Appellant argues that the sentencing scheme in the instant case was
at the higher range of the possible sentences and that all the sentences
should have run concurrent. Appellant’s Brief at 9. However, Appellant’s
aggregate sentence was composed exclusively of standard range guideline
sentences and was less than the statutory maximum for the crimes charged.
Notes of Testimony (N.T.), 10/11/2016, at 18-20. As previously stated, a
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sentencing court’s decision to impose consecutive versus concurrent
sentences does not generally raise a substantial question. See Gonzalez-
Dejusus, 994 A.2d at 598. Likewise, Appellant’s contention that the court
failed to consider mitigating circumstances does not present a substantial
question. Commonwealth v. Moury, 992 A.2d 162, 175 (Pa. Super. 2010)
(observing that the sentencing court’s refusal to weigh the proposed
mitigating factors as Appellant wished does not raise a substantial
question).3 Moreover, Appellant’s bald assertion that his sentence was
unreasonable lacked citation to specific provisions of the Sentencing Code
allegedly violated and was devoid of argument that the sentence was
contrary to sentencing norms.
Accordingly, Appellant has failed to raise a substantial question for our
review, and no relief is due.
Judgement of sentence affirmed.
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3
We note that the trial court was aware of Appellant’s parental
responsibilities and acceptance of his actions. N.T., 10/11/2016, at 19-22.
The court also had the benefit of a pre-sentence investigation report. Id. at
16. “Our Supreme Court has ruled that where pre-sentence reports exist,
the presumption will stand that the sentencing judge was both aware of and
appropriately weighed all relevant information contained therein.”
Commonwealth v. Griffin, 804 A.2d 1, 9 (Pa. Super. 2002), appeal
denied, 868 A.2d 1198 (Pa. 2005), cert. denied, 125 S. Ct. 2984 (2005).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/2017
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