Com. v. Velez, J.

J-S37012-21
2022 PA Super 56COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUNITO VELEZ :
:
Appellant : No. 1227 EDA 2021
Appeal from the Order Entered March 1, 2021
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0000699-2020
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
OPINION BY PANELLA, P.J.: FILED MARCH 31, 2022
Junito Velez raises three claims challenging the sentencing court’s
discretion in sentencing him to an aggregate term of ten to 20 years’
imprisonment after he pleaded guilty to robbery and aggravated assault.
Specifically, he argues the sentencing court abused its discretion by paying
undue attention to the circumstances of the crime itself, by failing to consider
mitigating factors, and by imposing an unreasonable and excessive sentence
outside the sentencing guidelines. We find no such abuse of discretion on the
part of the sentencing court, and we therefore affirm.
The facts underlying Velez’s crimes are not in dispute. On the morning
of December 11, 2019, Velez and Jorge Velasquez were driving around the
city of Easton, Pennsylvania, when they decided to commit a robbery. Velez
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* Former Justice specially assigned to the Superior Court.
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had a metal baseball bat with him. Velez and Velasquez saw the victim walking
down the street, with her phone, and they agreed to steal her phone. The two
got out of the car, ran up behind the victim, and Velez struck the victim in the
back of the head with the bat. The victim fell to the ground, and Velez
continued to strike her head and body multiple times with the bat while
Velasquez stomped on her head with his foot. At some point during the attack,
the victim was shot in the head at least three times with a BB gun. Velasquez
and Velez stole a bag from the victim, which they later discarded. The victim
survived the attack, but suffered serious bodily injuries, including a
concussion, a broken rib, a leg hematoma, nerve damage and a numb scalp.
Velez was arrested and charged with multiple crimes in relation to the
attack. He eventually pleaded guilty to robbery with serious bodily injury and
aggravated assault causing serious bodily injury, both felonies of the first
degree. The court deferred sentencing so that a pre-sentence investigation
(“PSI”) report, psychological evaluation, and psychiatric evaluation could be
performed.
On March 1, 2021, the trial court held a sentencing hearing at which
Velez, Velez’s grandmother, and the victim testified. The victim testified she
suffered lingering effects, both physical and psychological, from the attack.
See N.T., 3/1/21, at 34. She also testified the attack had impacted not only
her, but her family and the community as well. See id. at 35. During
allocution, Velez stated he was sorry for what he had done. See id. at 51.
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Following the testimony, and prior to imposing sentence, the court gave
a lengthy explanation for the sentence it had decided to impose. The court
then sentenced Velez to a sentence outside the guidelines but within the
statutory maximum for each of the convictions: ten to 20 years’ imprisonment
for the robbery count and ten to 20 years’ imprisonment for the aggravated
assault count. Per the plea agreement, the court ordered the sentences to run
concurrently.
Velez filed a post-sentence motion seeking reconsideration of his
sentence, which the trial court denied. Velez then filed a timely notice of
appeal and a court-directed Pa.R.A.P. 1925(b) statement of errors complained
of on appeal.
On appeal, Velez raises three claims, all of which challenge the
discretionary aspects of his sentence:
1. Did the Trial Court abuse its discretion when it failed to conduct
an individualized sentencing of [Velez] and considered the
circumstances of the offense and its impact on the victim to the
exclusion of all other sentencing factors?
2. Did the Trial Court abuse its discretion when it failed to consider
mitigating factors?
3. Did the Trial Court abuse its discretion when it imposed an
excessive and unreasonable sentence outside of the guideline
ranges on [Velez]?
Appellant’s Brief at 4 (double spacing and suggested answers omitted).
When an appellant raises claims challenging the discretionary aspects
of his sentence, as Velez does here, this Court will only review the claims if
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the appellant shows he filed a timely notice of appeal, properly preserved his
claims at sentencing or in a post-sentence motion, included a statement
pursuant to Pa.R.A.P. 2119(f) in his brief, and raised a substantial question
that his sentence is not appropriate under the Sentencing Code. See
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (defining a
substantial question as one where the appellant advances a colorable
argument that the sentencing court’s actions were either inconsistent with a
specific provision of the Sentencing Code or contrary to the fundamental
norms underlying the sentencing process).
Velez has met all of these requirements. He filed a timely appeal,
preserved his claims in a post-sentence motion and included a Rule 2119(f)
statement in his brief. In that statement, Velez cited cases supporting his
contention that each of his three claims raises a substantial question under
the Sentencing Code. See Commonwealth v. Lewis, 45 A.3d 405, 411 (Pa.
Super. 2012) (finding allegations that the sentencing court focused exclusively
on the seriousness of the crime raises a substantial question);
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (stating
that a sentencing court’s failure to consider mitigating circumstances raises a
substantial question); Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa.
Super. 2015) (stating that a claim that a sentence was excessive in light of
certain mitigating factors raises a substantial question).
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We therefore proceed to the merits of Velez’s claims challenging the
discretionary aspects of his sentence, mindful of our standard of review that
we will not disturb a sentence unless we find the sentencing court committed
a manifest abuse of discretion. See Commonwealth v. Lekka, 210 A.3d 343,
350 (Pa. Super. 2019). In reviewing a record to determine if the sentencing
court abused its discretion, the Sentencing Code instructs this Court to
consider the nature and circumstances of the crime; the history and
characteristics of the defendant; the sentencing court’s findings as well as the
court’s opportunity to observe the defendant, including through presentence
investigation; and the sentencing guidelines. See 42 Pa.C.S.A. § 9781(d).
The Sentencing Code additionally instructs sentencing courts to consider
“the protection of the public, 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.A. § 9721(b). The balancing of these
Section 9721(b) sentencing factors is within the sole province of the
sentencing court. See Lekka, 210 A.3d at 353.
The sentencing court must also consider the sentencing guidelines when
sentencing a defendant. See 42 Pa.C.S.A. § 9721(b). However, the sentencing
guidelines are purely advisory in nature - they are not mandatory. See
Commonwealth v. Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007). A court may
therefore use its discretion and sentence defendants outside the guidelines,
as long as the sentence does not exceed the maximum sentence allowed by
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statute. See id. at 1118-19. When a court deviates from the sentencing
guidelines, it must state the reasons for doing so on the record. See
Commonwealth v. McLaine, 150 A.3d 70, 76 (Pa. Super. 2016). This Court
may vacate a sentence if it finds the “sentencing court sentenced outside the
sentencing guidelines and the sentence is unreasonable.” 42 Pa.C.S.A. §
9781(c)(3).
Further, the weight accorded to the mitigating factors or aggravating
factors presented to the sentencing court is within the court’s exclusive
domain. See Commonwealth v. Chilquist, 548 A.2d 272, 274 (Pa. Super.
1988). This Court has stated that when a court possesses a pre-sentence
report, it is presumed the court “was aware of and weighed all relevant
information contained [in the report] along with any mitigating sentencing
factors.” Commonwealth v. Marts, 889 A.2d 608, 615 (Pa. Super. 2005)
(citation omitted).
Here, although Velez raises three purportedly distinct claims challenging
the discretionary aspects of his sentence, those claims substantially overlap.
He argues the sentencing court abused its discretion by placing undue
emphasis on the “brutality” of the crime and its impact on the victim “to the
exclusion of other sentencing factors.” Appellant’s Brief at 19, 21. He contends
the court failed to consider numerous mitigating factors, including his remorse
and assumption of responsibility for the crime, that he was only 18 years old
at the time of the crime, and that he had a history of mental health issues and
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was under the influence of drugs and alcohol at the time of the robbery. He
maintains the sentence imposed by the court, which was outside the
guidelines, was unreasonable given his “age, immaturity, lack of criminal
record, mental health issues, and displays of genuine remorse.” Id. at 25.
These claims offer no basis for relief.
The sentencing court gave a lengthy explanation for Velez’s sentence
both at the time of sentencing and in its 33-page Pa.R.A.P. 1925(a) opinion.
The court reviewed the sentencing guidelines applicable to both the robbery
and aggravated assault counts, outlining the minimum sentence ranges as
they related to Velez as well as that both counts carried a maximum sentence
of 20 years. See N.T., 3/1/21, at 49-50. In doing so, the court acknowledged
that Velez had no prior criminal record. See id. at 80.
The court stated it had reviewed the court-ordered PSI report,
psychological evaluation and psychiatric evaluation. See id. at 79, 82-83 (“I
have thoroughly reviewed all of these reports and considered all of the
recommendations”), 84.
As for the PSI report, the court specifically noted Velez reported having
drug and alcohol issues, including the daily use of alcohol, marijuana,
Percocet, heroin, and ecstasy. See id. at 81. The court also noted that the
probation officer conducting the PSI report opined that Velez’s prognosis for
community supervision after a period of incarceration was “very guarded,” id.,
when accounting for the following information:
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Velez admitted guilt to the instant offense and takes responsibility
for his actions as well as feeling remorseful. To [Velez]’s credit is
his young age and his continuing education toward his high school
diploma currently. Weighing against [Velez] is the serious and
violent nature of the instant offense and the victim’s significant
and severe injuries. Also weighing against [Velez] is his extensive
admitted substance abuse at such a young age, lack of treatment,
and lack of compliance of mental health treatment.
Trial Court Opinion, 8/12/21, at 30 (quoting Northampton County Presentence
Investigation, 9/14/20, at 6).
The court also stated it had reviewed the court-ordered psychological
evaluation, which included the fact that Velez reported hearing voices
directing him to harm himself. See N.T., 3/1/21, at 82. The court read the
report’s notation that “quote, Velez’s criminal acts by themselves are
concerning enough but even more concerning given his statement that he
does not know why he did this, end quote.” Id. Our own review of the report
reveals it also cataloged Velez’s history of ADHD, anger issues, hallucinations
and depressive episodes, and contained Velez’s contentions that he was
intoxicated at the time of the crime and felt remorse for the crime. See
Confidential Report by Dynamic Counseling Associates, 7/23/20, 2, 3, 5, 9,
10.
The court stated it had also reviewed the contents and recommendations
of the court-ordered psychiatric evaluation. See N.T., 3/1/21, at 82. That
evaluation gave a detailed account of Velez’s psychiatric history as well as his
drug and alcohol history and recounted that the evaluator had ultimately
diagnosed Velez with several disorders, including psychotic disorder
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unspecified, depressive disorder unspecified and attention deficit disorder.
See Court-Ordered Psychiatric Evaluation, 9/14/20, at 2-4.
The court also stated it had considered all of the testimony given at the
hearing, as well as the aggravating factors referred to by the Commonwealth.
See N.T., 3/1/21, at 79, 83. The court considered the circumstances of what
it described as a “brazen, savage, and merciless” attack, id. at 86-67,
including that the victim was innocent and random, that Velez had inflicted
more harm than was necessary to steal the victim’s property and had done so
using a metal baseball bat, and that the victim had sustained life-long injuries
from the attack, see id. at 83-84.
The court explicitly stated on the record that it had considered each of
the Section 9721(b) sentencing factors, Velez’s significant drug and alcohol
abuse, his mental health history, and the mitigating factors outlined in Velez’s
pre-sentence memorandum. See id. at 79, 84-85. That memorandum
specifically provided that Velez was only 18 years old and “drunk and high” at
the time of the crime, that he was remorseful and took responsibility for the
crime, and also recounted his mental health history, his history of drug abuse,
and his list of diagnoses. See Defendant’s Pre-sentence Memorandum,
2/25/21, at 1-3, 7.
The court then read the facts of the attack, as recounted and agreed to
by Velez at his guilty plea hearing. The court stated it was going to show Velez
the same mercy he had shown the victim, and was going to “depart from the
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guidelines, and … sentence [him] to the maximum period allowed by law.”
N.T., 3/1/21, at 87. The court continued:
[A]fter weighing all the factors, the Court believes the only
appropriate sentence would be to sentence the defendant to the
statutory maximum. And, again, my only regret ... is that I could
not give you more time.
Id.
As all of the above makes clear, the court did not, as Velez alleges, only
consider the gravity of the offense to the exclusion of the other Section
9721(b) sentencing factors or fail to consider mitigating factors. To the
contrary, the court specifically stated on the record that it had considered all
of the Section 9721(b) factors, including the rehabilitative needs of Velez. It
also highlighted on the record that it had considered all the mitigating factors
in Velez’s pre-sentence memorandum, which included the mitigating factors
Velez now says the court failed to consider. The court also stated on the record
several times that it had considered Velez’s extensive drug and alcohol history
and his mental health history, as well as the information and
recommendations in the three pre-sentence reports it had ordered. As such,
the record clearly belies Velez’s claims that the court abused its discretion by
not considering the Section 9721(b) sentencing factors or the mitigating
circumstances before imposing his sentence. The weight accorded to those
sentencing factors, as well as to the mitigating circumstances, was within the
sentencing court’s sole discretion. See Lekka, 210 A.3d at 353; Chilquist,
548 A.2d at 274.
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Velez also claims the court abused its discretion by imposing an
unreasonable sentence. Velez summarily asserts the court’s sentence
“exceeding all guideline ranges” was unreasonable in light of his age,
immaturity, lack of prior record, expressions of remorse, potential for
rehabilitation and mental health and drug and alcohol issues. This claim is also
meritless.
As noted above, this Court may vacate a sentence that is outside the
guidelines and found to be unreasonable pursuant to 42 Pa.C.S.A. §
9781(c)(3). While the Sentencing Code does not define unreasonableness, our
Supreme Court has explained that the concept “commonly connotes a decision
that is ‘irrational’ or ‘not guided by sound judgment.’” Commonwealth v.
Walls, 926 A.2d 957, 963 (Pa. 2007) (citations omitted). In deciding whether
a sentencing court has issued a sentence that was unreasonable, the Supreme
Court has instructed us to be guided by the considerations listed in Section
9781(d) and whether the trial court properly considered the sentencing factors
outlined in Section 9721(b). See id. at 964. We must also undertake this
inquiry through the lens of whether the trial court abused its discretion. See
id. at 962.
We cannot say the sentencing court abused its discretion in imposing
this sentence. As detailed above, the court considered a multitude of factors
before imposing its sentence, including the Section 9721(b) sentencing
factors, the sentencing guidelines, the nature and circumstances of the
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offense, the PSI, the psychiatric report, the psychological report, the
testimony at the sentencing hearing, and the mitigating and aggravating
factors that had been presented to it. This does not connote a decision that is
irrational or not guided by sound judgment. See Walls, 926 A.2d at 963. As
the sentencing court stated, “while Velez may disagree with the manner in
which the Court weighed the statutory factors and the sentence we imposed,
this Court’s decision was not unreasonable.” Trial Court Opinion, 8/12/21, at
32.
We also briefly address the claim Velez has tacked on to the end of his
brief that appears to allege his sentence was also unreasonable because the
sentencing court misstated the aggravated range minimum sentence for
aggravated assault as 55 months to 76 months of incarceration, when the
correct range is actually 54 months to 66 months of incarceration. This,
according to Velez, “made the sentence seem less extreme than it actually
was.” Appellant’s Brief at 28. However, as the Commonwealth points out, this
claim is waived because it was not included in either Velez’s Rule 1925(b)
statement or his Rule 2119(f) statement. See Pa.R.A.P. 1925(b)(4)(vii);
Commonwealth v. Robinson, 931 A.2d 15, 19 (Pa. Super. 2007) (en banc).
The argument is also not included in the summary of the argument section of
Velez’s brief, as required by our Rules of Appellate Procedure. See Pa.R.A.P.
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2118. As such, this belated claim, like his other claims, offers Velez no basis
for relief.1
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/31/2022
____________________________________________
1 Velez seems to base this argument on the aggravated guideline range for
aggravated assault the sentencing court provided in its 1925(a) opinion.
However, again as the Commonwealth points out, at the sentencing hearing,
the court accepted the corrections counsel for Velez had made to the guideline
range, which counsel for Velez then specifically agreed were correct. See N.T.,
3/1/21, at 49. The Commonwealth also notes the guideline ranges for robbery,
the more serious offense, were correct. Accordingly, even if Velez had not
waived this claim, he has not shown it establishes his sentence was
unreasonable.
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