Com. v. Alvarez-Pitre, J.

J-S51041-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH ALVAREZ-PITRE :
:
Appellant : No. 366 MDA 2020
Appeal from the Judgment of Sentence Entered December 4, 2018
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0007498-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH ALVAREZ-PITRE :
:
Appellant : No. 367 MDA 2020
Appeal from the Judgment of Sentence Entered December 4, 2018
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0005377-2017
BEFORE: MURRAY, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED JANUARY 29, 2021
Joseph Alvarez-Pitre (Appellant) appeals from the judgments of
sentence entered in the York County Court of Common Pleas, following his
guilty pleas to drug and related offenses at two dockets, CP-67-CR-0007498-
2016 (2016 Case) and CP-67-CR-0005377-2017 (2017 Case). He avers the
trial court abused its discretion in imposing aggravated-range and above-
J-S51041-20
aggravated range sentences, and in ordering his sentences to run
consecutively. We affirm.
The trial court summarized the underlying facts:
In [the 2016 Case], on October 3, 2016, . . . Appellant sold
heroin, later determined to be [4.2 grams of1] fentanyl, [to a
confidential informant2] in police presence in the vicinity of his
residence . . . in the City of York, Pennsylvania. On October 6,
2016, police executed a search warrant on [Appellant’s]
residence. Inside the residence, police found packaging, a scale,
cash, and a small amount of marijuana. The marijuana field[-]
tested positive.
In [the 2017 Case,] Appellant delivered crack cocaine to
another person in the presence of police on July 19, 2017. On
July 20, 2017, . . . Appellant delivered crack cocaine and heroin
to another [confidential informant3] in the presence of police.
[The next day], at approximately 3:00 p.m., the York City Police
Department attempted to stop [Appellant] while he was driving[.
Appellant] fled and in his attempt to elude the police drove onto a
curb and drove the wrong way down a one-way street. After his
car was forcefully stopped by the police, [Appellant] attempted to
continue his escape on foot. Officers . . . pursued and
apprehended [Appellant] in a nearby backyard. They found a
quantity of crack cocaine and marijuana on his person when they
apprehended him.
Trial Ct. Op. (2016 Case), 4/21/20, at 2.4
____________________________________________
1 N.T. Plea, 4/10/18, at 7.
2 N.T. Plea at 7.
3 N.T. Plea at 10.
4 The trial court filed nearly identical opinions at the two cases. Our citations
to the “Trial Ct. Op.” throughout this memorandum are to the 2016 Case
opinion.
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On April 10, 2018, Appellant entered open guilty pleas at both dockets
in the Heroin Opioid Wellness Court (drug treatment court). N.T. Plea at 1-2.
The trial court described drug treatment court as “an intensive rehabilitation
program that focuses upon treatment rather than incarceration.” N.T.
Sentencing, 12/4/18, at 9. “Upon successful completion of that program, the
felony counts [would] be reduced to a misdemeanor[,] and the misdemeanor
counts [would] be dismissed.” N.T. Plea at 2. At the 2016 Case, Appellant
pleaded guilty to one count each of possession with intent to deliver (PWID)
heroin,5 possession of marijuana, and possession of drug paraphernalia.6 At
the 2017 Case, Appellant pleaded guilty to four counts of PWID — for,
respectively, 1.02 grams of cocaine, 20.1 grams of cocaine, 0.26 grams of
heroin, and 21.03 grams of cocaine. Id. at 11. Appellant also pleaded guilty
to one count of fleeing or attempting to elude an officer.7
From January 5 (predating the plea hearing) to September 25, 2018,
Appellant appeared before drug treatment court “at least twice a month.” Trial
____________________________________________
5 At the plea hearing, the parties and trial court referred to the offense of
PWID fentanyl. N.T. Plea at 6-7. However, as the trial court notes in its
opinion, fentanyl is not a listed controlled substance in the Controlled
Substance, Drug, Device and Cosmetic Act, 35 P.S. §§ 780-1 to 780-144. See
35 P.S. § 780-104 (“Schedules of controlled substances”); Trial Ct. Op. at 7.
6 35 P.S. § 780-113(a)(30), (31), (32).
7 75 Pa.C.S. § 3733(a). One count of driving the wrong way, 75 Pa.C.S.
§ 3308(b), was nolle prossed. N.T. Plea at 2.
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Ct. Op. at 7. However, on September 25, 2018, he was removed from the
program for “falsifying employment documents and lying to the treatment
court team about his income sources.” Id. at 1.
On December 4, 2018, the trial court conducted sentencing, after having
reviewed the pre-sentence investigation report (PSI). N.T. Sentencing at 9.
Appellant had a prior record score of five and three prior PWID convictions —
in 2005 and 2008 (cocaine) and in 2012 (heroin)8 — for which he served state
sentences. Id. at 3, 6, 12. Appellant was RRRI9 eligible. Id. at 15. The trial
court and both parties reviewed the sentencing guidelines for each count in
detail and in light of his RRRI eligibility. See id. at 3-4 (defense counsel), 7-
8 (Commonwealth), 13-14 (trial court). The Commonwealth recommended a
total sentence of 36 to 72 months’ (or three to six years’) imprisonment,
comprised of concurrent sentences “at the top of the aggravated range.” Id.
at 4. Defense counsel then argued, however, that the Commonwealth was
seeking an aggregate sentence of 3½ to 7 years’ imprisonment, but
nevertheless agreed such a sentence “is appropriate,” as Appellant’s “life is
not a lost cause.” Id. at 5.
The trial court considered Appellant’s removal from drug treatment
court, where he was provided “the opportunity to rehabilitate himself outside
____________________________________________
8Appellant’s counsel also stated Appellant had adjudications of PWID “since
he was a juvenile going back to 2004.” N.T. Sentencing at 3.
9 Recidivism Risk Reduction Incentive, 61 Pa.C.S. §§ 4501-4512.
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of an incarceration sentence despite his extensive criminal record.” N.T.
Sentencing at 11. However, Appellant “demonstrated a lack of rehabilitative
potential and criminal disposition by repeatedly falsifying his employment
records and repeatedly lying about them to his probation officer[,]
presenting . . . falsified payment slips.” Id. The court observed Appellant
had maintained sobriety, which was “a positive,” but the court found he
“demonstrated through his deception and false conduct before the Court that
his criminal conduct is not just because of addiction but because of criminal
thinking and criminal predisposition.” Id. at 12.
At the 2016 Case, the trial court imposed five to 10 years’ imprisonment
for PWID, a sentence above the aggravated range and at the statutory
maximum.10 N.T. Sentencing at 15. In announcing this sentence, the court
contemporaneously stated Appellant “is a threat to the public and will re-
offend again,” he “will deal these deadly drugs again in the future unless a
very strong message is sent through his sentence,” and “therefore we need
to separate him from the public to protect the likelihood of dead from Fentanyl
toxicity.” Id. at 14-15.
At the 2017 Case, the trial court imposed the following sentences on the
four PWID counts: (1) 18 to 36 months’ imprisonment — a standard range
____________________________________________
10 At Case 2016, the trial court also imposed: (1) for possession of marijuana,
time served to 30 days; and (2) for possession of drug paraphernalia, time
served to 219 days’ credit. N.T. Sentencing at 15. Appellant’s sentencing
credit fulfilled these sentences.
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sentence — to run consecutive to the sentence at the 2016 Case; (2) a
concurrent 18 to 36 months’ imprisonment; (3) a consecutive 33 to 66
months’ imprisonment —in the aggravated range; and (4) a concurrent 33 to
66 months’ imprisonment — in the standard range. N.T. Sentencing at 15-
16. For fleeing or attempting to elude police, the court imposed a consecutive
nine to 18 months’ imprisonment; this sentence was at the top of the standard
range. Id. at 16. Appellant’s aggregate sentence, across both dockets, was
thus 10 to 20 years’ imprisonment.
Nine months after sentencing, on September 30, 2019, Appellant filed
a timely Post Conviction Relief Act11 petition. On December 4th, the trial court
reinstated Appellant’s post-sentence and appellate rights. Appellant then filed
a post-sentence motion on December 16th, alleging, inter alia, the court erred
in considering his prior convictions when imposing aggravated-range
sentences, as his “criminal history is already considered in the calculation of
his prior record score.” Appellant’s Motion for Reconsideration of Sentence,
12/16/19, at 5 (unpaginated). Appellant also asserted the court failed to state
sufficient reasons for imposing “a sentence far beyond the top of the
aggravated range” for the PWID count in the 2016 Case. Id.
The trial court held a hearing on January 22, 2020. Appellant reported
he had 750 days of sobriety and argued, “I don’t feel like I’m a lost cause. I
____________________________________________
11 42 Pa.C.S. §§ 9541-9545.
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feel like there’s a chance for me to change.” N.T. Sentence Reconsideration,
1/22/20, at 5. The parties stipulated that Count 2/PWID, at the 2017 Case,
should be based on 0.52 grams of cocaine, and not 20.01 grams as stated in
the PSI. Id. at 2. On this basis, the court amended the sentence, from an
18 to 36-month concurrent sentence, to a 12 to 24 month-concurrent
sentence. Id. at 9. However, the trial court rejected Appellant’s argument
that it improperly “double count[ed]” his prior convictions. Id. at 10. The
court reasoned “[t]his is an ongoing issue . . . in almost any drug case where
there is repeat dealing offenses,” and the court properly considered
Appellant’s “remorse and rehabilitative potential.” Id. The court also denied
Appellant’s request to modify his sentences that were in or above the
aggravated range. Id. at 9, 16.
Appellant filed timely notices of appeal at each docket,12 and complied
with the trial court’s orders to file Pa.R.A.P. 1925(b) concise statements of
errors complained of on appeal.
Appellant presents five related issues for our review:
I. Whether the Sentencing Court committed an abuse of
discretion on Count 1 in [the 2016 Case] by imposing a sentence
of 5 to 10 years, which far exceeds the aggravated range
maximum of 36 months by two years?
____________________________________________
12 Thus, there is no violation of Commonwealth v. Walker, 185 A.3d 969(Pa. 2018). See id. at 976 (Pa.R.A.P. 341 requires separate notices of appeal
from a single order resolving issues spanning more than one docket).
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II. Whether the Sentencing Court failed to state sufficient reasons
on record for imposing a sentence exceeding the aggravated
range on Count 1 in [the 2016 Case]?
III. Whether the Sentencing Court failed to state sufficient
reasons on record for imposing aggravated range sentences in
[the 2017 Case]?
IV. Whether the Sentencing Court committed an abuse of
discretion by considering the prior convictions for drug-related
offenses as an aggravating factor when such offenses are already
considered in the Prior Record Score?
V. Whether the sentences imposed in [the 2016 and 2017 Cases],
resulting in a cumulative sentence of 10 to 20 years in a state
correctional institution is clearly unreasonable in toto?
Appellant’s Brief at 6-7.
In his first issue, Appellant argues the trial court abused its discretion in
imposing a statutory-maximum, 5 to 10-year sentence on the PWID/2016
Case, as the sentence “far exceeds the aggravated range maximum of 36
months by two years.” Appellant’s Brief at 18. Appellant contends the trial
court’s deviation from the sentencing guidelines is “improper and
unreasonable,” where the court erred in “primarily rel[ying] upon [his] prior
convictions and the dangerousness of fentanyl,” as the guidelines already
“take into consideration the dangerousness of . . . dealing various
substances,” resulting in “different offense gravity scores.” Id. at 21.
Appellant addresses his second and third issues together: that the trial
court “failed to state sufficient reasons on the record for imposing” a sentence
above the aggravated range and at the statutory maximum for PWID in the
2016 Case and aggravated range sentences in the 2017 Case. Appellant’s
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Brief at 22. In support, Appellant reiterates the court improperly “‘double-
count[ed’] factors already included in the sentencing guidelines.” Id. at 24.
Appellant’s fourth issue alleges again that the trial court abused its
discretion in considering prior convictions as an aggravating factor.
Appellant’s Brief at 27. Appellant acknowledges the trial court’s discussion
that it considered his “past bad acts, not to ‘double punish[,’] but to assess
his rehabilitative potential” and public safety. Id. However, Appellant
maintains, the court did not consider “how he performed during his
supervision on the prior offenses,” and instead “simply focused on the number
of times [he] previously committed these offenses.” Id. at 27, 29.
In his final issue, Appellant incorporates his prior arguments and alleges
his cumulative sentence of 10 to 20 years, across both dockets, is manifestly
excessive. Appellant’s Brief at 33. He also avers the court abused its
discretion in ordering some sentences to run consecutively. Id. at 36-37.
After careful review, we conclude no relief is due.
Appellant’s claims implicate the discretionary aspects of sentencing. We
note:
[A]n appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction. We determine
whether the appellant has invoked our jurisdiction by considering
the following four factors:
(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.
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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).
* * *
What constitutes a substantial question must be evaluated on a
case-by-case basis. A substantial question exists “only when the
appellant advances a colorable argument that the sentencing
judge’s actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing process.” A
claim that a sentence is manifestly excessive might raise a
substantial question if the appellant’s Rule 2119(f) statement
sufficiently articulates the manner in which the sentence imposed
violates a specific provision of the Sentencing Code or the norms
underlying the sentencing process.
Commonwealth v. McLaine, 150 A.3d 70, 76 (Pa. Super. 2016) (some
citations omitted).
Here, Appellant filed a timely notice of appeal and raised these
discretionary sentencing claims before the trial court. See McLaine, 150 A.3d
at 76. Additionally, his appellate brief properly includes the required Pa.R.A.P.
2119(f) statement. See Appellant’s Brief at 16-17. We thus consider whether
Appellant presents substantial questions invoking our review. See McLaine,
150 A.3d at 76.
This Court has held the following claims do raise a substantial question:
whether the defendant “was sentenced outside of the aggravated range of the
sentencing guidelines without sufficient justification from the court,” and
“[w]hether a court specified specific reasons for an aggravated range
sentence.” McLaine, 150 A.3d at 76 (citations omitted). Additionally, “[a]
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claim that the sentencing court misapplied the sentencing guidelines in double
counting a prior conviction in its calculation of the prior record score presents
a substantial question.” Commonwealth v. Keiper, 887 A.2d 317, 319 (Pa.
Super. 2005) (citation omitted).
However, with respect to the imposition of consecutive sentences, we
have reasoned:
Generally, Pennsylvania law “affords the sentencing court
discretion to impose its sentence concurrently or consecutively to
other sentences being imposed at the same time or to sentences
already imposed. Any challenge to the exercise of this discretion
ordinarily does not raise a substantial question.” . . . But see
Commonwealth v. Dodge, [957 A.2d 1198 (Pa. Super. 2008)]
(holding consecutive, standard range sentences on thirty-seven
counts of theft-related offenses for aggregate sentence of 58
1/2 to 124 years’ imprisonment constituted virtual life sentence
and, thus, was so manifestly excessive as to raise substantial
question). “Thus, in our view, the key to resolving the preliminary
substantial question inquiry is 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 at issue in the case.”
Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super. 2011) (some
citations omitted).
In the case sub judice, with respect to Appellant’s total five PWID counts
and sole fleeing or attempting to elude police count, the trial court imposed
four terms to run consecutively, and two to run concurrently, for an aggregate
sentence of five to 10 years’ imprisonment. We decline to find, in this
particular case, a substantial question based merely on the consecutive nature
of some of the sentences. See Prisk, 13 A.3d at 533. However, Appellant’s
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claims regarding his aggravated range and above-aggravated range sentences
— that the trial court failed to state sufficient reasons on the record and erred
in double counting his prior convictions —do raise substantial questions
invoking our review. See McLaine, 150 A.3d at 76; Keiper, 887 A.2d at 319.
We note the relevant standard of review:
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.
* * *
When imposing sentence, a court is required to consider the
particular circumstances of the offense and the character of the
defendant. In considering these factors, the court should refer to
the defendant’s prior criminal record, age, personal characteristics
and potential for rehabilitation.
McLaine, 150 A.3d at 75-76 (citation omitted). “[W]here the trial court is
informed by a pre-sentence report, it is presumed that the court is aware of
all appropriate sentencing factors and considerations, and that where the
court has been so informed, its discretion should not be disturbed.”
Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009).
The Pennsylvania Supreme Court has explained:
It is well established that the Sentencing Guidelines are purely
advisory in nature. [T]he Guidelines do not alter the legal rights
or duties of the defendant, the prosecutor or the sentencing court.
The guidelines are merely one factor among many that the court
must consider in imposing a sentence.
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* * *
Likewise, we explained in Commonwealth v. Mouzon, . . . 812
A.2d 617, 621 (Pa. 2002) (plurality), that despite the
recommendations of the Sentencing Guidelines, “the trial courts
retain broad discretion in sentencing matters, and therefore, may
sentence defendants outside the Guidelines.” The only line that a
sentence may not cross is the statutory maximum sentence.
Commonwealth v. Yuhasz, 923 A.2d 1111, 1118-19 (Pa. 2007) (some
citations omitted).
Finally, we consider:
The sentencing court may, in an appropriate case, deviate from
the guidelines by fashioning 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. In doing
so, the sentencing judge must state of record the factual basis
and specific reasons which compelled him or her to deviate from
the guideline ranges. When evaluating a claim of this type, it is
necessary to remember that the sentencing guidelines are
advisory only.
McLaine, 150 A.3d at 76-77 (citations omitted).
Here, the trial court reviewed Appellant’s PSI, and thus we presume it
was aware of all appropriate sentencing factors. See Ventura, 975 A.2d at
1135. As stated above, at the sentencing hearing, the trial court and both
parties reviewed in detail the sentencing guidelines’ standard and aggravated
ranges for each count. N.T. Sentencing at 3-4, 7-9, 13-14. We observe that
that both Appellant and the Commonwealth stated aggravated range
sentences were appropriate, and the trial court noted the parties were “pretty
close” in their recommended aggregate sentences. Id. at 7. Indeed, we note
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Appellant’s recommended sentence of 3½ to seven years was longer than the
Commonwealth’s suggested three to six year-sentence. See id. at 4, 5.
Appellant is RRRI eligible, a factor that both parties and the trial court
discussed. The trial court considered the parties’ arguments and ultimately
imposed a total sentence of five to 10 years. The trial court
contemporaneously stated reasons on the record for its departure from the
sentencing guidelines with respect to the PWID count at the 2106 Case. See
McLaine, 150 A.3d at 76-77; N.T. Sentencing at 14-15. We now examine
whether, as Appellant avers, the court’s reasons constituted an abuse of
discretion.
At the post-sentence hearing and in its opinion, the trial court addressed
Appellant’s claim that it improperly double-counted Appellant’s prior
convictions. N.T. Sentence Reconsideration at 10; Trial Ct. Op. at 5. The
court reviewed the facts of the underlying two dockets:
Appellant was caught dealing extremely deadly drugs, including
fentanyl; when he was caught he fled the police and drove the
wrong way down a one-way street, imperiling innocent
bystanders; and then, when he was given an opportunity for
rehabilitation, he threw it away by falsifying records regarding his
income and lying to this Court. [N.T. Sentence at 11-13, 16.]
This Court also took into account and placed on the record
that . . . Appellant had three prior PWIDs stretching back from
2004 [. Id. at 11-12.] These facts forced this Court to reason
that . . . Appellant would continue to be a potential threat to the
safety of the public and lacked the rehabilitative potential
necessary to sentence him within the standard guidelines set forth
in the PSI. This Court’ s reasoning . . . was that . . . Appellant’s
past propensity to deal drugs, combined with his lies to the
treatment court regarding his income, demonstrated that he
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would try to support himself by dealing deadly, illegal substances
again. . . .
Trial Ct. Op. at 9-10.
The trial court also considered Appellant’s opportunity to participate in
drug treatment court, and his actions that caused his removal. In drug
treatment court, the court
had the benefit of meeting at least twice a month with . . .
Appellant from the date of his conditional admittance into the
treatment court on January 5, 2018, to his removal from the
treatment court on September 25, 2018. That lengthy period of
time gave this Court an excellent chance to weigh . . . Appellant’s
rehabilitative potential, and this Court found him lacking.
Trial Ct. Op. at 7.
The trial court then reasoned:
In sentencing . . . Appellant above the aggravated range, this
Court considered . . . Appellant’s past bad acts, not to “double
punish” . . . Appellant, but to assess his rehabilitative potential,
the impact of his crime on the community, and how the sentence
can best serve public safety. [Appellant] was sentenced on two
dockets after being removed from the Heroin Opioid Wellness
Court program. Both were for [PWID] either heroin or cocaine or
fentanyl. The sentencing transcript shows the sentencing court
considered . . . Appellant’ s rehabilitative potential, the impact of
his crimes on the community, and the general public welfare as
well as the sentencing guidelines provided by the York County
Probation Department. [N.T. Sentence at 13-14.]
The sentencing court demonstrated awareness and
incorporation of the sentencing guidelines when it stated the
standard and aggravated range sentences on the record. [N.T.
Sentence at 14.] During . . . Appellant’ s reconsideration of
sentence hearing, the [court] further made it clear that
sentencing . . . Appellant above the aggravated range was the
best course to follow given his penchant for crimes that pose a
grave threat to the community of York. [N.T. Sentence
Reconsideration Hearing at 14.]
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Trial Ct. Op. at 5-6.
After review of the certified record, the notes of testimony of the plea,
sentencing, and post-sentence proceedings, the trial court’s opinion, and both
parties’ briefs, we do not find an abuse of discretion in the sentences. It is
clear the court did not impose aggravated range and above-aggravated range
sentences solely on the fact Appellant had several prior PWID convictions.
Instead, the court properly considered Appellant’s prior convictions of the
same offense — PWID, in 2005, 2008, and 2012 — as well as his removal
from drug treatment court, due to falsification of income documents, within
the framework of Appellant’s rehabilitative needs and the protection of the
community. See McLaine, 150 A.3d at 76-77; Yuhasz, 923 A.2d at 1118-
19. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/29/2021
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