Com. v. Naranjo, I.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ISAAC NARANJO
Appellant No. 227 EDA 2015
Appeal from the Judgment of Sentence August 19, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-00212551-2002
BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED APRIL 12, 2016
Appellant, Isaac Naranjo, appeals from the judgment of sentence
entered on August 19, 2014, as made final by the denial of Appellant’s post-
sentence motion on December 31, 2014. We affirm.
As this Court previously explained:
[In 2003, a] jury convicted Appellant of attempted murder,
aggravated assault, burglary, possession of an instrument
of crime (“PIC”), terroristic threats, criminal trespass,
recklessly endangering another person [(“REAP”)], simple
assault, and contempt of court.[1] The convictions stemmed
from Appellant’s brutal attack on his former girlfriend with a
box cutter. The assault occurred after she had successfully
obtained a protection from abuse order. . . .
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1
18 Pa.C.S.A. §§ 2502, 2702, 3502, 907, 2706, 3503, 2705, and 2701, and
23 Pa.C.S.A. § 6114, respectively.
*Retired Senior Judge assigned to the Superior Court.
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On May 8, 2003, the [trial] court sentenced Appellant to
[20] to [40] [years’] incarceration for attempted murder
and consecutive terms of imprisonment of ten to [20] years
for burglary and two and one-half to five years each for his
PIC and terroristic threats convictions. No further sentence
was imposed on the remaining convictions. Appellant’s
aggregate sentence was [35] to [70] [years’] imprisonment.
. . . This Court affirmed Appellant’s judgment of sentence
on October 19, 2005. Commonwealth v. Naranjo, 889
A.2d 116 (Pa. Super. 2005) (unpublished memorandum). . .
. The Pennsylvania Supreme Court [] denied Appellant’s
petition for allowance of appeal on May 20, 2008.
Commonwealth v. Naranjo, 953 A.2d 541 (Pa. 2008).
Commonwealth v. Naranjo, 81 A.3d 1002 (Pa. Super. 2013) (unpublished
memorandum) at 1-3 (internal footnotes omitted), appeal denied, 81 A.3d
76 (Pa. 2013).
Appellant filed a timely petition under the Post-Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, and the PCRA court denied Appellant
relief. On May 23, 2013, this Court affirmed the PCRA court in part,
reversed the PCRA court in part, vacated Appellant’s judgment of sentence,
and remanded the case for re-sentencing. As we held, Appellant’s sentence
of 20 to 40 years’ imprisonment for attempted murder was illegal because
“the jury was never presented with, nor rendered a decision on, the question
of whether a serious bodily injury resulted from the attempted murder.” Id.
at 12, quoting Commonwealth v. Johnson, 910 A.2d 60, 67 (Pa. Super.
2006).
The trial court held Appellant’s re-sentencing hearing on August 19,
2014. At the conclusion of the hearing, the trial court re-sentenced
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Appellant to serve an aggregate term of 25 to 50 years in prison. The trial
court structured Appellant’s sentencing term in the following manner: ten to
20 years in prison for attempted murder; a concurrent term of ten to 20
years in prison for aggravated assault; a consecutive term of ten to 20 years
in prison for burglary; a consecutive term of two-and-a-half to five years in
prison for PIC; and, a consecutive term of two-and-a-half to five years in
prison for terroristic threats.2 N.T. Sentencing, 8/19/14, at 4-5.
On August 29, 2014, Appellant filed a timely post-sentence motion,
where Appellant baldly claimed that his aggregate sentence was excessive.
In relevant part, Appellant’s post-sentence motion reads:
I. MOTION FOR RECONSIDERATION OF SENTENCE:
The application of [Appellant], by his Attorney . . .
respectfully represents:
1. That on August 19, 2014, [Appellant] was
resentenced after a Superior Court remand to 25 to 50
years for attempted murder, burglary, terroristic
threats, and PIC.
2. The sentence imposed was the maximum allowed by
law and is above the aggravated range of the
Sentencing Guidelines and extremely excessive.
WHEREFORE, [Appellant] respectfully prays that [the trial
court] grant [Appellant’s] application to reconsider sentence
and impose a guideline sentence.
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2
Appellant received no further penalty for simple assault, REAP and criminal
trespass. N.T. Sentencing, 8/19/14, at 5.
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Appellant’s Post-Sentence Motion, 8/29/14, at 1 (internal bolding omitted)
(some internal capitalization omitted).
On December 31, 2014, Appellant’s post-sentence motion was deemed
denied by operation of law. See Pa.R.Crim.P. 720(B)(3)(a). After Appellant
filed a timely notice of appeal, the trial court ordered Appellant to file and
serve a concise statement of errors claimed on appeal, pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b). Appellant listed the
following boilerplate claim in his Rule 1925(b) statement:
The trial court abused its discretion when it sentenced
Appellant to an aggregate 25-50 [years’] incarceration on
the charges of attempted murder, [aggravated] assault,
burglary, criminal trespass, [PIC], and terroristic threats.
Appellant’s Rule 1925(b) Statement, 2/18/15, at 1 (some internal
capitalization omitted).
Now on appeal, Appellant raises one claim:
Whether the trial court abused its discretion when it
sentenced Appellant to an aggregate sentence of 25-50
years [of] incarceration?
Appellant’s Brief at 4.
Appellant’s claim on appeal is a challenge to the discretionary aspects
of his sentence. “[S]entencing 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
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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 explained:
[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; (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. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).
In the case at bar, Appellant filed a timely post-sentence motion and
notice of appeal. Moreover, Appellant’s brief contains “a concise statement
of the reasons relied upon for allowance of appeal with respect to the
discretionary aspects of a sentence.” See Pa.R.A.P. 2119(f); see also
Appellant’s Brief at 7. However, the bald claim of excessiveness found in
Appellant’s post-sentence motion did not preserve any of the specific claims
that are contained in Appellant’s current Rule 2119(f) statement. 3 See
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3
Within Appellant’s Rule 2119(f) statement, Appellant argued that the trial
court abused its discretion because, at sentencing: “the [trial court] based
its sentence on the fact that Appellant used a weapon, and his prior
convictions, which squarely focuses on the serious and heinous nature of the
crime without taking into account the other [42 Pa.C.S.A. §] 9721(b)
factors;” the trial court “failed to give adequate consideration and weight to
Appellant’s mental health problems and potential for rehabilitation;” the trial
court focused “nearly exclusively upon the need to punish and the harm
caused to the victim[];” and, the trial court “failed to take adequate
(Footnote Continued Next Page)
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Appellant’s Brief at 7. As such, Appellant “did not give the sentencing judge
an opportunity to reconsider or modify [Appellant’s] sentence” on any of the
bases that Appellant currently argues on appeal. Commonwealth v.
Reeves, 778 A.2d 691, 692-693 (Pa. Super. 2001). Therefore, Appellant
has not preserved any of the specific discretionary aspects of sentencing
claims that are contained in his brief to this Court. Pa.R.A.P. 302(a)
(“[i]ssues not raised in the lower court are waived and cannot be raised for
the first time on appeal”). The specific claims contained in Appellant’s brief
to this Court are thus waived.4
Judgment of sentence affirmed.
_______________________
(Footnote Continued)
consideration of [Appellant’s] background, mental health condition, or his
potential for rehabilitation.” Appellant’s Brief at 7.
4
We also note that Appellant’s Rule 1925(b) statement simply consisted of a
boilerplate assertion that “[t]he trial court abused its discretion when it
sentenced Appellant to [the specific] aggregate” term. Appellant’s Rule
1925(b) Statement, 2/18/15, at 1. Thus, Appellant’s discretionary aspects
of sentencing claim is also waived under Rule 1925(b), as the Rule 1925(b)
statement was “too vague to allow the [trial] court to identify the issues
raised on appeal.” Pa.R.A.P. 1925(b)(4)(vii); see also Commonwealth v.
Hansley, 24 A.3d 410, 415 (Pa. Super. 2011) (“[a]n appellant’s concise
statement must properly specify the error to be addressed on appeal. In
other words, the Rule 1925(b) statement must be specific enough for the
trial court to identify and address the issue an appellant wishes to raise on
appeal. A concise statement which is too vague to allow the court to identify
the issues raised on appeal is the functional equivalent of no concise
statement at all. The court’s review and legal analysis can be fatally
impaired when the court has to guess at the issues raised. Thus, if a concise
statement is too vague, the court may find waiver”) (internal quotations,
citations, and corrections omitted).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/12/2016
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