Com. v. Lopez, V.

J-S77036-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
VINCENT LOPEZ, :
:
Appellant : No. 1725 EDA 2014
Appeal from the Judgment of Sentence Entered September 24, 2012
in the Court of Common Pleas of Montgomery County,
Criminal Division, at No(s): CP-46-CR-0005161-2011
BEFORE: STABILE, JENKINS, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 03, 2015
Vincent Lopez (Appellant) appeals from his aggregate judgment of
sentence of 56 months to 12 years of imprisonment, and restitution in
excess of $585,000 entered after he pled guilty to theft by unlawful taking,
dealing in proceeds of unlawful activities, and criminal conspiracy. We
affirm.
Appellant was the manager of Plymouth Hills Condominiums, a
community of largely elderly residents. Over the course of nearly a decade,
Appellant engaged in a conspiracy to defraud the residents, through the
condominium association, of $585,746.51. Appellant entered an open guilty
plea to the above-stated charges on May 2, 2012. On September 24, 2012,
Appellant was sentenced as indicated. He filed neither post-sentence
motions nor a direct appeal.
*Retired Senior Judge assigned to the Superior Court.
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On August 5, 2013, Appellant timely filed a petition pursuant to the
Post Conviction Relief Act1 which resulted in the reinstatement of his post-
sentence motion rights. Appellant filed a motion for reconsideration of his
sentence, which the trial court denied without a hearing by order of May 15,
2014. Appellant filed a notice of appeal on June 11, 2014. The trial court
ordered Appellant to file a statement of errors complained of on appeal,
which Appellant timely filed on June 20, 2014.
Appellant presents the following question for our consideration: “Did
the trial court err by denying, without hearing, [Appellant’s] motion for
reconsideration and/or modification of sentence, such sentence being harsh
and excessive under the particular facts and circumstances of the case,
especially the trial court’s order of restitution?” Appellant’s Brief at 2
(emphasis in original; unnecessary capitalization omitted).
Appellant’s question raises several issues. First is a claim that the trial
court’s failure to hold a hearing on Appellant’s post-sentence motion
constituted error. Appellant argues that “the best chance that the truth has
to emerge in any case is provided by an evidentiary hearing where sworn
testimony can be presented to the fact-finder with the reliability and veracity
of that testimony being tested in the crucible of cross-examination.” Id. at
7. Appellant maintains that he was denied a full and fair opportunity to
1
42 Pa.C.S. §§ 9541-9546.
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show that his sentence was excessive based upon his age, lack of a prior
record, ailing knee, and acceptance of responsibility for his crimes. Id. at 8.
As the Commonwealth aptly notes, the trial court was under no
compulsion to conduct a hearing or oral argument on Appellant’s post-
sentence motion; rather, the decision whether to schedule such a session
was within the trial court’s discretion. Commonwealth’s Brief at 12 (citing
Pa.R.Crim.P. 720(B)(2)(b)). All of the mitigating circumstances Appellant
points to in his brief as reasons for reconsideration were fully presented to
the trial court at Appellant’s original sentencing hearing, and the trial court
at that time offered sound reasons for the sentence it imposed. Therefore,
the trial court committed no abuse of discretion in declining to give Appellant
an opportunity for a repeat performance. See, e.g., Commonwealth v.
Dalberto, 648 A.2d 16, 23 (Pa. Super. 1994) (quoting Commonwealth v.
Ziomek, 435 A.2d 894, 896 (Pa. Super. 1981)) (“A petition for modification
of sentence is designed to give the sentencing court an opportunity, before
appellate review is undertaken, to correct any errors it may have committed
at sentencing…. A modification of sentence hearing, therefore, is only
necessary if the sentencing record discloses errors by the trial court. Should
the modification petition fail to raise such errors, then the trial court is under
no obligation to hold an obviously frivolous hearing…. It is within the trial
court’s discretion to rely upon the sentencing record.”).
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The portion of Appellant’s question which addresses the alleged
excessive harshness of his sentence constitutes a challenge to the
discretionary aspects of his sentence. Accordingly, we bear in mind the
following.
It is well settled that, with regard to the discretionary aspects of
sentencing, there is no automatic right to appeal.
Before [this Court may] reach the merits of [a challenge to
the discretionary aspects of a sentence], we must engage
in a four part analysis to determine: (1) whether the
appeal is timely; (2) whether Appellant preserved his
issue; (3) whether Appellant’s brief includes a concise
statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of
sentence; and (4) whether the concise statement raises a
substantial question that the sentence is appropriate under
the sentencing code.... [I]f the appeal satisfies each of
these four requirements, we will then proceed to decide
the substantive merits of the case.
Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations
omitted).
Appellant’s appeal is timely filed, and he filed a post-sentence motion
seeking sentence modification. His brief contains the following statement of
reasons for allowance of appeal, reproduced here in toto:
An order of restitution is a sentence, and such an order
may not be excessive and must be based upon facts and
evidence of record. A restitution order that is excessive raises a
substantial question, especially when the trial court itself found
that [Appellant] was unable to comply with the restitution order
imposed.
Appellant’s Brief at 5 (emphasis and unnecessary capitalization omitted).
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Appellant’s bald assertion of excessiveness does not raise a substantial
question. See, e.g., Commonwealth v. Trippett, 932 A.2d 188, 202
(Pa.Super. 2007) (“Trippett does not set forth the specific provision of the
Sentencing Code or the fundamental norm underlying the sentencing
process that the trial court violated in imposing the sentence. Accordingly,
we find that Trippett has failed to raise a substantial question that his
sentence was excessive.”).
Moreover, to the extent that Appellant claims that the trial court
abused its discretion in ordering restitution in excess of his ability to pay, he
fails to raise a substantial question. Under the mandatory restitution
statute, the trial court was required to order restitution for the full amount
that Appellant stole; his ability to pay it is irrelevant. See 18 Pa.C.S.
§ 1106(c)(1)(i) (“The court shall order full restitution: … [r]egardless of the
current financial resources of the defendant, so as to provide the victim with
the fullest compensation for the loss.”).
Therefore, we conclude that no issue raised in Appellant’s question
entitles him to relief.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/3/2015
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