Com. v. Martinez-DeJesus, W.

J-S53023-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WILLIAM MARTINEZ-DEJESUS,
Appellant No. 2103 MDA 2015
Appeal from the Judgment of Sentence September 28, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0000883-2015
BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED AUGUST 25, 2016
Appellant, William Martinez-DeJesus, appeals from the judgment of
sentence entered following his conviction of robbery. We affirm.
We summarize the procedural history of this case as follows. In an
information filed on April 29, 2015, the Commonwealth charged Appellant
with one count of robbery in relation to his actions on December 19, 2014, in
which Appellant beat and threatened to kill a taxi driver over a fare dispute
and took items from his taxicab. On July 21, 2015, Appellant entered a plea
of nolo contendere to the robbery charge. On September 28, 2015, the trial
court sentenced Appellant to serve a term of incarceration of five to ten
years, and payment of fines, costs, and restitution to the victim. Appellant
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*
Former Justice specially assigned to the Superior Court.
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filed a timely post-sentence motion. On November 3, 2015, the trial court
entered an order denying Appellant’s post-sentence motion. This timely
appeal followed. Both Appellant and the trial court have complied with
Pa.R.A.P. 1925.
Appellant presents the following issue for our review:
WAS IT SO MANIFESTLY EXCESSIVE AS TO CONSTITUTE
AN ABUSE OF DISCRETION FOR THE COURT TO IMPOSE A
SENTENCE OUTSIDE ALL RANGES OF THE SENTENCING
GUIDELINES WHEN SUCH SENTENCE WAS “UNREASONABLE”
WITHIN THE MEANING OF 42 Pa.C.S. §9781(c)(3) BECAUSE
THERE WERE NO SPECIAL CIRCUMSTANCES JUSTIFYING AN
UPWARD DEPARTURE?
Appellant’s Brief at 5.
Appellant argues that the trial court abused its discretion in imposing
the sentence in this case. Appellant’s Brief at 20-25. Appellant contends
that the sentencing court failed to give adequate reasons for imposing a
sentence that exceeded the aggravated range of the Sentencing Guidelines.1
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1
As the Commonwealth properly observes, to the extent Appellant presents
an argument pertaining to whether the Commonwealth established certain
elements of the crime charged, we note that this specific issue was not
raised in Appellant’s Pa.R.A.P. 1925(b) statement. Thus, we are constrained
to conclude that this specific argument is waived for purposes of appellate
review. See Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998)
(holding that where a trial court directs a defendant to file a concise
statement pursuant to Pa.R.A.P. 1925, any issues not raised in that
statement shall be waived). See also Commonwealth v. Oliver, 946 A.2d
1111, 1115 (Pa. Super. 2008) (noting that Lord “requires a finding of
waiver whenever an appellant fails to raise an issue in a court-ordered
Pa.R.A.P. 1925(b) statement”).
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Appellant’s claim of error is a challenge to the discretionary aspects of
his sentence. It is well settled that a challenge to the discretionary aspects
of a sentence is a petition for permission to appeal, as the right to pursue
such a claim is not absolute. Commonwealth v. Treadway, 104 A.3d 597,
599 (Pa. Super. 2014). Before this Court may review the merits of a
challenge to the discretionary aspects of a sentence, we must engage in the
following four-pronged analysis:
[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 that the sentence appealed from is not appropriate
under the Sentencing Code, 42 Pa.C.S. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citing
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006)).
We note that Appellant has met the first three parts of the four-prong
test: Appellant filed a timely appeal; Appellant preserved the issue in a
post-sentence motion; and Appellant included a statement pursuant to
Pa.R.A.P. 2119(f) in his brief. Thus, we next assess whether Appellant has
raised a substantial question with respect to the issue he presents.
Whether a particular issue constitutes a substantial question about the
appropriateness of a sentence is a question to be evaluated on a case-by-
case basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.
2001). As to what constitutes a substantial question, this Court does not
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accept bald assertions of sentencing errors. Commonwealth v. Malovich,
903 A.2d 1247, 1252 (Pa. Super. 2006). An appellant must articulate the
reasons the sentencing court’s actions violated the sentencing code. Id. “A
substantial question will be found where the defendant advances a colorable
argument that the sentence imposed is either inconsistent with a specific
provision of the Sentencing Code or is contrary to the fundamental norms
underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d
1128, 1133 (Pa. Super. 2009) (citations omitted).
In Appellant’s brief, he argues that “[t]he [sentencing] court failed to
give adequate reasons for imposing a sentence that exceeded the
aggravated range of the Sentencing Guidelines.” Appellant’s Brief at 18.
This Court has held that claims that the sentencing court imposed a
sentence outside the standard guidelines without stating adequate reasons
on the record presents a substantial question. Commonwealth v.
Antidormi, 84 A.3d 736, 759 (Pa. Super. 2014) (citing Commonwealth v.
Robinson, 931 A.2d 15, 26 (Pa. Super. 2007)). Thus, we conclude that
Appellant’s claim presents a substantial question for our review and we will
review the merits of Appellant’s challenge.
Our standard of review in appeals 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,
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exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Mann, 957 A.2d 746, 749 (Pa. Super. 2008).
A sentencing judge has broad discretion in determining a reasonable
penalty, and appellate courts afford the sentencing court great deference, as
it is the sentencing court that is in the best position to view the defendant’s
character, displays of remorse, defiance, or indifference, and the overall
effect and nature of the crime. Commonwealth v. Walls, 926 A.2d 957,
961 (Pa. 2007) (quotations and citations omitted). 2 When imposing a
sentence, the sentencing court must consider “the protection of the public,
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2
The Walls Court instructed the following:
In making this “unreasonableness” inquiry, the General
Assembly has set forth four factors that an appellate court is to
consider:
(d) Review of the record.—In reviewing the record the appellate
court shall have regard for:
(1) The nature of the circumstances of the offense
and the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to
observe the defendant, including any pre-sentence
investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).
Walls, 926 A.2d at 963.
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the gravity of the offense as it relates to the impact on the life of the victim
and on the community, and the rehabilitative needs of the defendant.” 42
Pa.C.S. § 9721(b). As we have stated, “[A] court is required to consider the
particular circumstances of the offense and the character of the defendant.”
Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002). In
particular, the sentencing court should refer to the defendant’s prior criminal
record, his age, personal characteristics, and his potential for rehabilitation.
Id.
Moreover, it is well settled that sentencing courts are not bound by the
Sentencing Guidelines because they are merely advisory. Commonwealth
v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation omitted). The
sentencing court may deviate from the Sentencing Guidelines, because they
are one factor among many that the court must consider when imposing a
sentence. Id. (citation omitted). The sentencing court “may depart from
the [G]uidelines if necessary, to fashion a sentence which takes into account
the protection of the public, the rehabilitative needs of the defendant, and
the gravity of the particular offense as it relates to the impact on the life of
the victim and the community.” Id. (internal quotation marks and citation
omitted).
Our review of the record reflects that at the time of Appellant’s
sentencing, the court was aware of the applicable guideline ranges. N.T.,
9/28/15, at 3. In addition, a victim-impact statement was presented to the
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court and photographs of the victim’s injuries were admitted. Id. at 4-5.
Also, Appellant’s counsel apprised the court of Appellant’s personal history
and the fact that Appellant was taking full responsibility for the incident. Id.
at 6. Appellant’s counsel then read into the record a personal letter of
apology from Appellant to the victim. Id. at 7-8. Thereafter, Appellant
personally addressed the court and offered an apology directly to the victim.
Id. at 8. The victim rebuffed Appellant’s act of contrition. Id.
Thereafter, the sentencing court made the following statement on the
record:
Here is the problem. Here lies the problem. There are
different types of robberies that take place, and there are those
with force and threat of force. Even a purse-snatch is a robbery.
Then there are senseless acts that take place.
And then there is always the emotional trauma that a
victim will sustain, and some more than others. Some folks are
more sensitive to aggressive acts than others. And then you
have situations where there is mindless physical brutality that
takes place because then a victim has to live with it for the rest
of their life.
I appreciate greatly the efforts the District Attorney’s
Office has indicated they are willing to go to, to try to get the
Compensation Board to try to help out the financial situation that
exists here.
[Appellant] stands before me and says, I will pay whatever
to do it, and he is not capable of it. So the words, although they
may sound good, are hollow because he is not able to correct
what he has done. He does not have to go through life with the
injuries and the scarring and the debilitating aspects of his
actions.
***
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And the remorsefulness I don’t think covers it. Being sorry
for it doesn’t cover it. Having lots of stress in your life and
everything falling apart, what does that have to do with [the
victim]? [The victim] didn’t cause any of that stress or strife.
So that’s my concern.
Yes, [Appellant] has pled guilty and we take that into
consideration. Yes, [Appellant] has indicated that he is sorry for
it. Sure, I bet you he is, or at least I hope he is.
***
And it is not necessarily the photographs that exist. Have
I seen worse photographs over my ... 30 some years of being
involved in criminal law? Sure, I have. Sure I have. But what
[the victim] has to live with the rest of his life -- and it has
impacted him financially as well -- I don’t know that the Victim
Compensation Board can ever put him back on his feet. And
that doesn’t even cover, you know, what [the victim] is living
with.
And that’s the egregious aspect of this case, is I feel for
[the victim], the senseless inflictions that have occurred. And
that’s where I see our problem. [Appellant] has zero prior
record score, but to jump so quickly and violently into the area
where he did, I don’t understand it. And that’s my problem and
that’s my concern.
***
I see this as the injuries, the impact on the life of the
victim, the degree of the violent nature of this particular robbery
bespeak of going above the guidelines. It makes no sense.
N.T., 9/28/15, at 9-12.
In its opinion, the sentencing court made the following conclusion
regarding the sentence imposed:
In light of the record, this Court did not abuse its
discretion in deviating from the guidelines. The sentence was
not so manifestly excessive as to constitute an abuse of
discretion. Moreover, such sentence was consistent with the
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protection of the public, the gravity of the offense, and
[Appellant’s] rehabilitative needs.
Trial Court Opinion, 2/18/16, at 4 (citations omitted).
Upon review of the record, we conclude that the sentencing court
presented adequate reasons for imposing a sentence upon Appellant that
was beyond the Sentencing Guidelines. There is no indication that the trial
court ignored any relevant factors in fashioning the sentence. Rather, we
agree with the sentencing court that its focus was properly upon Appellant’s
brutal behavior during the commission of the crime and the impact upon the
victim. Accordingly, it is our determination that there was no abuse of
discretion on the part of the sentencing court. Hence, we conclude this
claim lacks merit. Based on the foregoing, we affirm the judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2016
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