Com. v. Laureano, M.

J-S53013-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MIGUEL LAUREANO :
:
Appellant : No. 2867 EDA 2018
Appeal from the Judgment of Sentence Entered August 30, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010147-2011
BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 05, 2019
Appellant, Miguel Laureano, appeals from the judgment of sentence
entered on August 30, 2018, following his non-jury trial convictions for rape
of a child,1 involuntary deviate sexual intercourse with a child,2 aggravated
indecent assault of a child,3 unlawful contact with a minor,4 and related
offenses. We affirm.
In a previous appeal, we summarized the facts of this case as follows:
Complainant, Y.R., resided with [Appellant] and his wife, Luz
Moralez, from the time she was approximately six to eleven years
[old]. During this time, Y.R.’s mother was incarcerated. Moralez
previously had been Y.R.’s babysitter. Y.R. testified that while
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1 18 Pa.C.S.A. § 3121(c).
2 18 Pa.C.S.A. § 3123(b).
3 18 Pa.C.S.A. § 3125(b).
4 18 Pa.C.S.A. § 6318(a)(1).
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living with [Appellant] and Moralez, [Appellant] sexually assaulted
her and raped her on a regular basis. At trial, Y.R. testified to
numerous incidents in which [Appellant] penetrated her vagina
with his penis or fingers or otherwise inappropriately touched her.
[Appellant] was convicted of the aforementioned crimes and was
sentenced on June 17, 2015, to 25 to 50 years’ incarceration, to
be followed by seven years of probation.
Commonwealth v. Laureano, __A.2d__, 1961 EDA 2015 (Pa. Super. 2016)
(unpublished memorandum), at 1-4 (citation omitted).
This Court affirmed Appellant’s judgment of sentence on May 4, 2016.
Id. Our Supreme Court denied allocatur on August 30, 2016.
Commonwealth v. Laureano, 145 A.3d 724 (Pa. 2016). On June 6, 2017,
Appellant filed a pro se petition pursuant to the Post Conviction Relief Act
(PCRA). Appellant’s Pro Se PCRA Petition, 6/6/17, at 1-3. Subsequently,
counsel was appointed and, on November 24, 2017, filed an amended PCRA
petition on Appellant’s behalf. Appellant’s Amended PCRA Petition, 11/24/17,
at 1-10. Within his petition, Appellant alleged that he was sentenced to a
“minimum mandatory sentence” deemed unconstitutional by both our
Supreme Court and the United States Supreme Court. Id. at *5
(un-paginated). See Alleyne v. United States, 133 S. Ct. 2151 (2013);
Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016) (holding that the statute
imposing a ten-year minimum mandatory sentence for involuntary deviate
sexual intercourse (IDSI) violated the Sixth Amendment).
On May 31, 2018, the PCRA court granted Appellant’s petition and
ordered re-sentencing. PCRA Court Order, 5/31/18, at 1. A hearing was held
on August 30, 2018, during which the trial court re-imposed Appellant’s
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original sentence.5 See PCRA Court Opinion, 1/15/19, at 1. Appellant did not
file a post-sentence motion or challenge his sentence at the August 30, 2018
hearing. Appellant timely appealed.6
Appellant raises the following issues on appeal:
I. Did the trial court abuse its discretion when [] it re-imposed
the same sentence without considering mitigating evidence
provided at the time of re-sentencing?
II. Did the trial court abuse its discretion when it imposed a
sentence of 25 to 50 years[’] which[ is clearly unreasonable
when] compared to a normal sentence under similar
circumstances?
Appellant’s Brief at vii (some internal capitalization omitted).
On appeal, Appellant contends that the trial court abused its discretion
in the imposition of his sentence. Specifically, Appellant claims that the court
“ignored the mitigating evidence of Appellant’s prior record score, work
history, and five character witnesses that testified” at the re-sentencing
hearing, and instead, “re-imposed the same punitive sentence.” Appellant’s
Brief at 5. Similarly, Appellant claims that the trial court imposed an “irrational
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5 At the August 30, 2018 hearing, the trial court made clear that, “while [it]
made reference to the mandatories [at Appellant’s original sentencing,] . . .
they were not the basis for [its] decision.” N.T. Sentencing Hearing, 8/30/18,
at 27.
6 Appellant filed a notice of appeal on September 28, 2018. On October 16,
2018, the trial court entered an order directing Appellant to file a concise
statement of matters complained of on appeal pursuant to Pa.R.A.P.
1925(b)(1). Appellant timely complied. The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on January 15, 2019.
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and unreasonable sentence.” Id. Upon review, we conclude that Appellant
has waived both claims.
Appellant's issues implicate the discretionary aspects of sentencing.
With respect to our standard of review, we have held that “sentencing 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 Pa.C.S.A. § 9781(b).
Instead, Appellant must petition this Court for permission to appeal. Id. As
this Court has 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. [708(E)];
(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. Cook, 941 A.2d 7, 11 (Pa. Super. 2007); see also
Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (en
banc) (“[I]ssues challenging the discretionary aspects of a sentence must be
raised in a post-sentence motion or by presenting the claim to the trial court
during the sentencing proceedings. Absent such efforts, an objection to a
discretionary aspect of a sentence is waived”).
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In this case, Appellant did not challenge the discretionary aspects of his
sentence at the August 30, 2018 re-sentencing hearing or file a subsequent
motion to reconsider or modify his sentence. See N.T. Sentencing Hearing,
8/30/18, at 1-36; Pa.R.Crim.P. 708(E). Therefore, Appellant waived his
claims challenging the discretionary aspects of his sentence. Cartrette, 83
A.3d at 1042.
Appellant, however, contends that he “preserved the issue through [his]
PCRA petition.” Appellant’s Brief at 10. This claim is meritless. The petition
was filed before Appellant’s re-sentencing; hence, the sentencing issues he
raised within his petition are not the same ones he now raises on appeal.
Thus, Appellant’s PCRA petition was insufficient to preserve his claims
challenging the discretionary aspects of his new sentence. Therefore, we are
prohibited from addressing the merits of Appellant’s claims because he failed
to properly “object[] to [the] discretionary aspects of [his] sentence.”
Cartrette, 83 A.3d at 1042.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/5/19
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