Com. v. Maldonado, J.

J-S03044-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JEHOVAH MALDONADO
Appellant No. 2187 EDA 2014
Appeal from the Judgment of Sentence June 17, 2014
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0002541-2013
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED FEBRUARY 10, 2015
Jehovah Maldonado appeals from the judgment of sentence imposed
on June 17, 2014, in the Court of Common Pleas of Monroe County. A jury
found Maldonado guilty of burglary, conspiracy to commit robbery, criminal
trespass, and recklessly endangering another person.1 The charges arose as
a result of Maldonado’s participation with others in an armed home invasion
where shots were fired.2 The trial court sentenced Maldonado to an
aggregate term of four to ten years’ imprisonment.3 In this timely appeal,
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1
18 Pa.C.S. §§ 3502(a)(1), 3701(a)(1)(ii), 3503(a)(1)(ii), and 2705,
respectively.
2
Maldonado and another individual were hit by the shots.
3
The trial court sentenced Maldonado to a term of 24 to 60 months
imprisonment for the charge of burglary, a felony of the first degree; a
consecutive period of 24-60 months’ imprisonment for the charge of criminal
(Footnote Continued Next Page)
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Maldonado claims the trial court erred and abused its discretion in (1)
“sentencing [Maldonado] who has a prior record score of zero at the top of
the standard range for each count,”4 and (2) “sentencing [Maldonado] to
consecutive sentences which aggregately total a sentence greater than even
the aggravated range for each count.” Maldonado’s Brief at 6. For the
following reasons, we affirm.
The principles that guide our review are as follows:
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,
exercised its judgment for reasons of partiality, prejudice,
bias or ill will, or arrived at a manifestly unreasonable
decision.
_______________________
(Footnote Continued)
conspiracy to commit robbery, a felony of the first degree; and a concurrent
term of one to 12 months’ imprisonment for the charge of recklessly
endangering another person, a misdemeanor of the second degree. The
criminal trespass charge, a felony of the second degree, merged for
sentencing purposes.
4
Based on Maldonado’s prior record score of zero, for the burglary charge
(offense gravity score of 9), the standard range was 12 to 24 months, with
an aggravated range of 36 months; for the conspiracy to commit robbery
charge (offense gravity score of 9), the standard range was 12 to 24
months, with an aggravated range of 36 months; and for the charge of
recklessly endangering another person (offense gravity score of three), the
standard range was restorative sanctions to one months, with an aggravated
range of four months. See Maldonado’s Brief at 10.
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The right to appellate review of the discretionary aspects
of a sentence is not absolute, and must be considered a
petition for permission to appeal. An appellant must
satisfy a four-part test to invoke this Court’s jurisdiction
when challenging the discretionary aspects of a sentence.
[W]e conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal;
(2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify
sentence; (3) whether appellant's brief has a fatal
defect; and (4) whether there is a substantial
question that the sentence appealed from is not
appropriate under the Sentencing Code.
****
A substantial question will be found where an appellant
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 which underlie the sentencing process. At 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.
Commonwealth v. Zirkle, ___ A.3d ___, ___ [2014 Pa. Super. LEXIS
4563] (Pa. Super. 2014) (citations omitted).
Here, Maldonado preserved his discretionary aspects of sentencing
challenge by filing a motion to modify sentence within 10 days of sentencing,
and a timely appeal.5 See Pa.R.Crim.P. 720(A). Maldonado has also
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5
Maldonado also complied with the court’s order to file a Pa.R.A.P. 1925(b)
statement.
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included in his brief a concise statement pursuant to Pa.R.A.P. 2119(f). See
Maldonado’s Brief at 9–11. The only remaining question is whether
Maldonado has raised a substantial question.
First, Maldonado argues his sentence is manifestly excessive due to
the sentences for the burglary and conspiracy charges being ordered to run
consecutively. With regard to such a claim, this Court has stated:
A challenge to the imposition of consecutive rather than
concurrent sentences does not present a substantial question
regarding the discretionary aspects of sentence. Lloyd, 878 A.2d
at 873. “We see no reason why [a defendant] should be afforded
a volume discount’ for his crimes by having all sentences run
concurrently.” Hoag, 665 A.2d at 1214.
Zirkle, supra at ___ (citation omitted). Nevertheless,
we have recognized that a sentence can be so manifestly
excessive in extreme circumstances that it may create a
substantial question. Commonwealth v. Moury, 2010 Pa. Super.
46, 992 A.2d 162, 171-72 (Pa. Super. 2010). When determining
whether a substantial question has been raised, we have focused
upon “whether the decision to sentence consecutively raises the
aggregate sentence to, what appears upon its face to be, an
excessive level in light of the criminal conduct in this case.”
[Commonwealth v.] Mastromarino, 2 A.3d at 588 (quoting
Commonwealth v. Gonzalez-Dejusus, 2010 Pa. Super. 62, 994
A.2d 595, 599 (Pa. Super. 2010)).
Id. at ___ (footnote omitted). Finally,
where a sentence is within the standard range of the guidelines,
Pennsylvania law views the sentence as appropriate under the
Sentencing Code.
Moury, supra, at 171 (citation omitted).
Here, all of Maldonado’s sentences were at the high end of the
standard range. Given that Maldonado faced a possible maximum sentence
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of 20 to 40 years’ incarceration on the burglary and conspiracy charges, the
aggregate sentence of four to ten years’ imprisonment is not unduly harsh
and does not represent an extreme circumstance. Accordingly, this issue
does not raise a substantial question.
Next, Maldonado claims his aggregate sentence is manifestly excessive
because the trial court failed to consider mitigating circumstances, i.e., his
age (19 years old), his lack of a prior record score, the fact he had never
been incarcerated prior to this incident, and the extreme inconsistencies in
the sentences of his co-defendants. This claim also fails to raise a
substantial question. See Moury, 992 A.2d at 171 (“An allegation that the
sentencing court failed to consider certain mitigating factors generally does
not necessarily raise a substantial question.”).6
However, Maldonado’s claim that the court improperly focused only on
the nature of the crime does raise a substantial question. See
Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa. Super. 2013) (“[A]
claim the trial court focused solely on the nature of the offense, without
considering the protection of the public or the rehabilitative needs of the
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6
Moury, citing Commonwealth v. Felmlee, 828 A.2d 1105 (Pa. Super.
2003) (en banc), does note that a substantial question is raised when the
sentencing court imposes an aggravated range sentence without adequately
considering mitigating factors. Here, there is no aggravated range sentence
at issue.
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appellant, as is required by 42 Pa.C.S.A. § 9721(b), presents a substantial
question.”), appeal denied, 85 A.3d 481 (Pa. 2014).
At sentencing, Maldonado’s counsel requested that the court impose
concurrent, standard range sentences, resulting in a two to four year
sentence. See N.T., 6/17/2014, at 8–9. Maldonado addressed the court
and stated that he took responsibility for his actions. He also told the court
that while he was in juvenile placement he had “accomplished a lot” in
obtaining a GED, various certifications, and “vo-tech things,” and while in jail
he had completed a class in life applications, and was about to start a class
in anger management. Id. at 9–10. The court noted:
[Y]ou just got off of supervision when you did this, and I’m
looking and you were at PA Childcare, Vision Quest, violated,
Glen Mills, remanded, remanded, remanded, you were released,
then you were violated, you were placed at Abraxis, returned to
Abraxis after review.
Id. at 10.
The court noted that in this case “people got shot, including
[Maldonado], people could have died.” N.T., 6/17/2014, at 14. The court
questioned, “[H]ow do you think you would feel if [these crimes] happened
to you[.]” Id. Maldonado responded that he didn’t possess a firearm and
requested a two-to-four years term of incarceration. Id. at 15. Maldonado
told the court:
I just think that, I just want to go out there, and this is an
opportunity for me to think, and I’ve thought a lot and I’ve been
through a lot of classes, and I’ve heard other people’s
experiences, because there’s people in [jail] that’s got similar
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charges and stuff like that, and I’m attending these classes and
I’m learning from older people, you know, who are well, have
way more wisdom than me, that are teaching me things I need
to learn, you know, and I’m ready to go out there in society,
within the next year, that’s when I get two to four or two to five,
so I can go back to going to college. I’m not going [to] surround
myself with wrong people, I just put myself in a position where I
surround myself around negativity and I’m a positive person, I
just get myself in the wrong, I get myself in the wrong
situations, and my job and my goal is to not do that, my
aspiration in life is just to be better.
Id. at 16–17.
Later, in listening to counsel’s arguments, the court stated:
Here’s my concern, I still am concerned that it’s talk and that if
he’s pushed into a corner, into a disagreement, the other side
comes out, the side that failed at juvenile placement, who got off
supervision and then does this.
Id. at 19–20.
The court, at the conclusion of the hearing, placed the following
comments on the record:
The one thing, and this is what I go back to and I think I’ve said
it before, in his statement [Maldonado] in the PSI [Presentence
Investigation Report] said I’m ready to prove to everybody that
if given the opportunity I can be a better person and move on
from this. My concern is he’s already been given so many
opportunities and yet I stand here with a 19 year old person
before me[.] … [Y]ou have been given so many chances to make
something out of yourself and to learn to make good decisions
for yourself, and it seems like your history is replete with
blowing those opportunities, and that’s where I struggle because
that’s really what I have to judge you by. … I find you very
charismatic, charming, a good salesman for yourself, but I’m not
sure that I believe that if you were pushed into a corner,
confronted, challenged in a way that you found disagreeable,
that you wouldn’t revert to the old behaviors, that you wouldn’t
fail to play by the rules, because that’s what your history shows
you’ve done in the past, and as I’ve said, you were just off
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supervision. I know that you did a lot of things and you received
the OSHA certification, the CPR, the first aid, the automotive
repair, but those were all done while you were in placement, if I
remember correctly.[7]
****
So as I said, I’m troubled by your history and that you were
recently discharged from supervision and here we go again. I
note that there are no aggravating or mitigating circumstances
in the PSI, …. The question then becomes where in the standard
range does he belong. I just go back to the fact that his history
is replete, and maybe some of it’s not by his own fault, maybe
some of it is the upbringing that he, I don’t think that it was
easiest or the best by any stretch of the imagination and that
really isn’t a choice that you got to make, but then you were put
in placement and you were given opportunities away from those
settings you continued to violate[], you continued to have
problems, you continued to have an inability to follow the rules,
and that is really what concerns me, and so if I judge you by
character and prior conduct, I think it puts you at the higher end
of the standard range. … So for the reasons stated on the
record as well as those in the PSI, which I will adopt in its
entirety, we’ll issue the following order[.]
N.T., 6/17/2014, at 24–28.
“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.” Commonwealth v. Devers, 546 A.2d 12, 18
(Pa. 1988). Furthermore, the court’s on-the-record rationale for its sentence
demonstrates that the trial court did not focus solely on the nature of the
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7
Maldonado explained to the trial court that “The automotive thing, I was
working, I worked.” N.T., 6/17/2014, at 26.
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crime and the impact on the victims, but rather considered, as well, the
protection of the public or the rehabilitative needs of Maldonado, and
therefore considered all relevant Section 9721(b) factors. Accordingly, we
reject Maldonado’s claim the trial court abused its discretion in imposing the
four-to-ten year sentence of incarceration.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2015
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