Com. v. Romero, J.

J-S02001-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JONATHAN ROMERO :
:
Appellant : No. 1132 MDA 2022
Appeal from the Judgment of Sentence Entered May 19, 2022
In the Court of Common Pleas of Huntingdon County
Criminal Division at No(s): CP-31-CR-0000144-2021
BEFORE: PANELLA, P.J., OLSON, J., and DUBOW, J.
MEMORANDUM BY PANELLA, P.J.: FILED APRIL 25, 2023
Jonathan Romero appeals from the judgment of sentence entered in the
Huntingdon County Court of Common Pleas after Romero was convicted of
possession of methamphetamine and possession of brass knuckles. On
appeal, Romero only argues the trial court abused its discretion by imposing
an excessive sentence. We affirm.
Romero was staying with some friends at a hotel and had several
asthma attacks. During each attack, Romero’s friends would call 911
requesting medical assistance. Emergency medical technicians responded
each time. After the first two calls, Romero refused to be taken to the local
hospital, and instead requested on-the-scene treatment with an albuterol
inhaler.
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After the third call, however, the EMTs informed him that they could not
administer a third dose of albuterol and that policy required that Romero be
taken to the hospital for observation. The EMT alleged that Romero possessed
a baseball bat and a pocketknife, so he requested police assistance in dealing
with Romero’s refusal to go to the hospital.
Before the police arrived, however, the EMT was able to get Romero to
surrender the bat and accompany him to the hospital in an ambulance. While
en route to the hospital, the EMT contacted police dispatch to alert officers
that Romero was no longer at the hotel and requested that the police instead
respond to the hospital.
An officer was present as the ambulance arrived at the hospital. Given
the EMT’s statements and the hospital’s policy forbidding the possession of
weapons, the officer performed a pat-down search of Romero. The search
revealed several other weapons including a set of brass knuckles, as well as a
small glassine bag of crystal methamphetamine and a similar bag containing
five fentanyl pills.
The Commonwealth charged Romero with one count of possession of
methamphetamine, one count of possession of fentanyl with the intent to
distribute, and one count of possession of a prohibited weapon (brass
knuckles). A jury convicted Romero on the charges of possessing the
methamphetamine and the brass knuckles but acquitted him of possessing
the fentanyl with the intent to distribute.
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The trial court sentenced Romero to an aggregate sentence of three to
six years in prison. The court subsequently denied Romero’s post-sentence
motion, and this timely appeal followed.
Romero’s sole issue on appeal is a claim the trial court abused its
discretion in imposing sentence. See Appellant’s Brief, at 8.1 “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.” Commonwealth
v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014). To challenge the
discretionary aspect of a sentence, an appellant must invoke this Court’s
jurisdiction by satisfying a four-part test:
(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. 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).
See Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011).
____________________________________________
1 We note that Romero’s brief does not comply with our Rules of Appellate
Procedure. Rule 2119(f) requires an appellant who raises a challenge to the
discretionary aspects of his sentence to “set forth in a separate section of the
brief a concise statement of the reasons relied upon for allowance of appeal
…”. While Romero has a section titled “Concise Statement of the Reasons to
Allow an Appeal to Challenge the Discretionary Aspects of Sentence,” there is
no separate section entitled “Argument.” However, we decline to find
Romero’s challenge waived as the Commonwealth did not object and our
review of whether he has raised a substantial question is not hindered by this
violation.
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Romero filed a timely notice of appeal. He also preserved his challenge
to the discretionary aspects of his sentence in his post-sentence motion. And
while his brief is defective, the defect is not fatal to our review. We therefore
must determine whether Romero has raised a substantial question.
To raise a substantial question, Romero must advance a colorable
argument that the court’s sentencing was either: “(1) inconsistent with a
specific provision of the Sentencing Code; or (2) contrary to the fundamental
norms which underlie the sentencing process.” Commonwealth v. Caldwell,
117 A.3d 763, 768 (Pa. Super. 2015) (citations omitted). Without a
substantial question, Romero cannot establish this Court’s jurisdiction to
review his claim. See Allen, 24 A.3d at 1064.
Here, Romero contends, among other allegations, that the sentence
imposed was “highly excessive and well beyond the Sentencing Guidelines …
[and] considered factors that were not proved at trial.” Appellant’s Brief, at 9.
This claim raises a substantial question. See Commonwealth v. Eby, 784
A.2d 204, 206 (Pa. Super. 2001). We further note that there is no dispute that
Romero was sentenced entirely outside the guidelines for the prohibited
weapon conviction. See Commonwealth’s Brief, at 8; Trial Court Opinion,
6/29/22, at 7.
Even if a substantial question is raised, the sentence will only be
overturned if the record establishes the trial court abused its discretion by
“ignor[ing] or misapply[ing] the law, exercis[ing] its judgment for reasons of
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partiality, prejudice, bias or ill will, or arriv[ing] at a manifestly unreasonable
decision.” Commonwealth v. Mouzon, 828 A. 2d 1126, 1128 (Pa. Super.
2003). “[G]reat weight [is given] to the sentencing court’s discretion, as he
or she is in the best position to measure factors such as the nature of the
crime, the defendant’s character, and the defendant’s display of remorse,
defiance, or indifference.” Id. (citation omitted).
When imposing sentence, “the trial court is required to consider the
particular circumstances of the offense and the character of the defendant,”
including reference to the “defendant’s prior criminal record, age, personal
characteristics, and potential for rehabilitation.” Commonwealth v. Fowler,
893 A.2d 758, 766 (Pa.Super. 2006). The sentencing guidelines are not
mandatory and courts do not have a duty to impose sentences within their
bounds. See Commonwealth v. Archer, 722 A.2d 203, 210 (Pa. Super
1998). This does not mean that the trial court may disregard the sentencing
guidelines entirely, “and such consideration must be more than mere fluff.”
Commonwealth v. Scassera, 965 A.2d 247, 250 (Pa. Super. 2009)
(citations omitted). Sentencing courts “must ascertain the correct guideline
ranges before deciding that a departure is in order.” Id. (citation omitted).
Here, the trial court explained numerous factors that influenced the
sentencing decision: Romero’s “violent history” and extensive criminal record;
his actions of “running around the lobby of the [hotel] with a baseball bat[;]”
his possession of “baseball bat, brass knuckles, a knife, and [5.5 grams] of
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methamphetamine[;]” and his risk to the public, the tourism industry, and
“the entire community.” N.T., Sentencing, at 6-7. Furthermore, the trial court
had the benefit of a presentence investigation report (“PSI”), which
establishes that it was aware of relevant information regarding Romero’s
character and mitigating factors. See Watson, 228 A.3d at 936 (stating that
where the trial court is informed by a PSI, 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).
Finally, in its opinion, the trial court expanded on the extensiveness of
Romero’s criminal history:
Looking to the PSI Report, [Romero] has four prior convictions for
Simple Assault, each graded as a second-degree misdemeanor.
He has one conviction for Theft by Unlawful Takings graded as a
third-degree misdemeanor, and two for Possession With Intent to
Deliver a Controlled Substance, graded as third-degree felonies.
Most significantly, he has a prior conviction for Robbery - Inflicts
or Threatens to Immediately Inflict Bodily Injury, graded as a
second-degree felony. He also has a recent (2019) conviction for
Indecent Exposure, graded as a second-degree misdemeanor.
Trial Court Opinion, 6/29/22 at 8 (footnotes omitted).
Moreover, the trial court notes a lesser sentence would not adequately meet
Romero’s rehabilitative needs and prevent recidivism as is evidenced by the
fact that, Romero “has [already] served terms of incarceration in both county
and state correctional institutions, with his sentences totaling a term of 13
years.” Id.
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Based upon this record, we cannot conclude the trial court abused its
discretion in imposing sentence. Romero’s only issue on appeal merits no
relief, and we therefore affirm his judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/25/2023
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