J-S06029-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WILBERT A. SANCHEZ
Appellant No. 937 MDA 2015
Appeal from the Judgment of Sentence April 29, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0001303-2013
CP-36-CR-0002217-2013
CP-36-CR-0002222-2013
CP-36-CR-0002665-2014
CP-36-CR-0002669-2014
CP-36-CR-0004885-2013
BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MUNDY, J.: FILED APRIL 01, 2016
Appellant, Wilbert A. Sanchez, appeals from the April 29, 2015
aggregate judgment of sentence of two to four years’ imprisonment,
imposed following the revocation of his probation. After careful review, we
affirm.
The trial court has fully and accurately set forth the facts and
procedural history of this case in its opinion filed pursuant to Pennsylvania
Rule of Appellate Procedure 1925(a), as such we need not repeat them in
full herein. See Trial Court Opinion, 6/30/15, at 1-5. Relevant to the
instant appeal, we note the following. On February 24, 2015, a revocation
*Former Justice specially assigned to the Superior Court.
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hearing was held relative to Appellant’s various parole and probationary
sentences at six criminal dockets. Several of the dockets, including the
probationary sentences at 2665 and 2669 of 2014, involved domestic
violence related charges. At said hearing, J.R. (Mother), the mother of
Appellant’s four children, and the victim in Appellant’s domestic violence
charges testified for the Commonwealth. The Commonwealth sought
revocation of Appellant’s probation for three separate violations, to wit,
missing appointments, displaying assaultive and threatening behavior
towards Mother, and being apprehended at her residence from which he was
prohibited as a special condition. N.T., 2/24/15, at 3. Appellant stipulated
to the missed appointments and apprehension, as such, the hearing was
only on the alleged assaultive and threatening behavior. Id. at 3-4. At the
conclusion of said hearing, the trial court found Appellant in violation of all
three of the aforementioned conditions, and ordered a pre-sentence
investigation report. Id. at 33.
On April 29, 2015, relative to the revocation of his probationary
sentences, Appellant was resentenced to an aggregate term of two to four
years’ incarceration consecutive to the unexpired balance of his remaining
sentences, which had been the subject of the revocation of his parole. N.T.,
4/29/15, at 15. Specifically, Appellant was sentenced as follows.
As to 1303 of 2013, Count 1, the [trial c]ourt
sentences him to the unexpired balance. He may be
paroled after 265 days.
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2217 of 2013, Count 1, the [trial c]ourt
sentences him to the unexpired balance. He may be
paroled after 265 days.
2222 of [20]13, Counts 1 through 5, the [trial
c]ourt sentences him to the unexpired balance. He
may be paroled after 265 days.
As to Count 1, the consecutive five years’
probation remains.
As to 4885 of 2013, Count 1, he is to receive
the unexpired balance.
Count 2, he’s sentenced to the unexpired
balance and may be paroled after 265 days.
2665 of 2014, Count 1, he is sentenced to
incarceration in a State Correctional Institution of not
less than one, nor more than two years. This is
consecutive to the sentence imposed on the
informations from 2013.
Count 2 is two years’ probation.
2669 of 2014, Count 1, sentence of
incarceration in a State Correctional Institution of not
less than one, nor more than two years.
This is to be consecutive to 2665 of 2014.
Domestic violence conditions 1, 3, 6A, 7, 8 and
10 remain, as do all previously imposed conditions.
He is not RRRI eligible.
Id. at 13-14.
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On May 4, 2015, Appellant filed a timely motion to modify sentence
which was denied on May 5, 2015. On May 29, 2015, Appellant filed a
timely notice of appeal.1
On appeal, Appellant raises the following issue for our review.
I. Was an aggregate sentence of two to four years[’]
incarceration for a probation and parole violation so
manifestly excessive as to constitute too severe a
punishment and contrary to the fundamental norms
underlying the sentencing process as it was not
consistent with the protection of the public, the
gravity of the offenses, the rehabilitative needs of
[Appellant], and the [trial] court did not impose an
individualized sentence which took into consideration
[Appellant]’s circumstances?
Appellant’s Brief at 5.
We review a trial court’s sentence imposed following the revocation of
probation for an error of law or an abuse of discretion. Commonwealth v.
Colon, 102 A.3d 1033, 1041 (Pa. Super. 2014), appeal denied, 109 A.3d
678 (Pa. 2015). “An abuse of discretion is not merely an error of judgment,
but if in reaching a conclusion the law is overridden or misapplied or the
judgment exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias, or ill will, as shown by the evidence or the record, discretion
is abused.” Commonwealth v. Burns, 988 A.2d 684, 689 (Pa. Super.
2009) (en banc) (citation omitted), appeal denied, 8 A.3d 341 (Pa. 2010).
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Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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As the revocation of a sentence of probation is within the sound discretion of
the trial court, “our review is limited to determining the validity of the
revocation proceedings and the authority of the sentencing court to consider
the same sentencing alternatives that it had at the time of the initial
sentencing.” Commonwealth v. Ahmad, 961 A.2d 884, 888 (Pa. Super.
2008). “[Our] scope of review in an appeal from a revocation sentencing
includes discretionary sentencing challenges.” Commonwealth v.
Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en banc).
Appellant does not dispute that he violated his probation. Instead, he
claims that the trial court abused its discretion when it revoked his probation
and sentenced him to two to four years’ imprisonment “for only a second
violation of probation and parole.” Appellant’s Brief at 13. This challenge to
the discretionary aspects of a sentence is not appealable as of right. Colon,
supra at 1042. Instead, an appellant must petition for permission to
appeal. Id. We evaluate the following factors to determine whether to
grant permission to appeal a discretionary aspect of sentencing.
Before we reach the merits of this issue, 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 [as required by
Rule 2119(f) of the Pennsylvania Rules of Appellate
Procedure]; and (4) whether the concise statement
raises a substantial question that the sentence is
appropriate under the sentencing code. The third
and fourth of these requirements arise because
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Appellant’s attack on his sentence is not an appeal
as of right. Rather, he must petition this Court, in
his [Rule 2119(f)] concise statement of reasons, to
grant consideration of his appeal on the grounds that
there is a substantial question. [I]f the appeal
satisfies each of these four requirements, we will
then proceed to decide the substantive merits of the
case.
Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)
(citations omitted), appeal denied, 81 A.3d 75 (Pa. 2013).
Here, Appellant filed a timely notice of appeal, preserved his
discretionary sentencing challenge in his timely motion to modify sentence
and Rule 1925(b) concise statement, and has included a Rule 2119(f)
statement in his brief. Therefore, we next determine whether Appellant has
raised a substantial question for our review.
The determination of whether a particular issue
raises a substantial question is to be evaluated on a
case-by-case basis. In order to establish a
substantial question, the appellant must show
actions by the trial court inconsistent with the
Sentencing Code or contrary to the fundamental
norms underlying the sentencing process.
Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa. Super. 2014)
(citation omitted). “At a minimum, the Rule 2119(f) statement must
articulate what particular provision of the code is violated, what fundamental
norm the sentence violates, and the manner in which it violates that norm.”
Commonwealth v. Zirkle, 107 A.3d 127, at 132 (Pa. Super. 2014)
(citation omitted).
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In his Rule 2119(f) statement, Appellant claims that by “imposing a
sentence of two to four years[’] incarceration, the [trial] court violated the
provisions of 42 Pa.C.S. § 9721, and failed to consider this was [Appellant]’s
second violation and that he was not a danger to the public.” Appellant’s
Brief at 10, citing Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super.
2012), appeal denied, 63 A.3d 776 (Pa. 2013). The essence of Appellant’s
argument amounts to an assertion that a two to four year sentence for a
second violation of probation is manifestly excessive. Appellant’s Brief at
13.
We have previously concluded “a claim that a particular probation
revocation sentence is excessive in light of its underlying technical violations
can present a [substantial] question that we should review.”
Commonwealth v. Carver, 923 A.2d 495, 497 (Pa. Super. 2007), citing
Commonwealth v. Sierra, 752 A.2d 910, 912, 913 (Pa. Super. 2000);
Commonwealth v. Schutzues, 54 A.3d 86, 98 (Pa. Super. 2012) (holding
“[a]n argument that the trial court imposed an excessive sentence to
technical probation violations raises a substantial question[]”), appeal
denied, 67 A.3d 796 (Pa. 2013). Accordingly, Appellant has raised a
substantial question and we will address the merits of his claim. See
Edwards, supra.
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The Sentencing Code provides that the trial court may impose a
sentence of total confinement upon revocation of a sentence of probation if
one of the following three circumstances applies.
§ 9771. Modification or revocation of order of
probation
…
(c) Limitation on sentence of total
confinement.--The court shall not impose a
sentence of total confinement upon revocation unless
it finds that:
(1) the defendant has been convicted of
another crime; or
(2) the conduct of the defendant indicates that
it is likely that he will commit another crime if
he is not imprisoned; or
(3) such a sentence is essential to vindicate
the authority of the court.
42 Pa.C.S.A. § 9771(c). We have consistently held “[t]echnical violations
can support revocation and a sentence of incarceration when such violations
are flagrant and indicate an inability to reform.” Carver, supra at 498; see
also Schutzues, supra at 99 (concluding that appellant’s frequent contact
with his young nieces was not a de minimus violation of his probation when
one of his probation conditions barred him from having any contact with
minors).
Instantly, at sentencing, the trial court set forth the following
reasoning for imposing a sentence of two to four years of total confinement.
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[Appellant] is 24 years of age, which shows
sufficient maturity to understand the significance of
his acts.
He is intelligent enough to understand the
significance of his acts, having completed 11 grades
of education.
He can read, write and understand the English
language, certainly to an extended degree. He
indicates a work history specifically with this carpet
business that clearly shows he can follow directions.
He has an extremely lengthy prior record,
predominantly those cases that are before us on
violations. But since 2004, when he started with his
simple assault and terroristic threats, two summary
harassments in [20]13, and [20]14 a retail theft.
There are five separate simple assaults, all related to
[Mother], endangering the welfare of children, two
intimidation charges and three separate violations of
his probation and parole.
He has controlled [Mother] and kept her in fear
for the majority of their relationship. He wants the
[trial c]ourt to believe that there was no physical
abuse that brought him back to th[e trial c]ourt for
the violations in front of us, when, in fact, she not
only reported to the probation office of hitting and
choking and being punched in the stomach while
pregnant, probation and parole actually saw the
injuries relative to that.
He still blames her for everything. Six dockets
are violent in nature. Five out of six the same
victim[, Mother].
One of the most disturbing parts about this
individual who is before me is that we did a hearing
on this violation solely because of his attempts to
intimidate her and have her come before the [trial
c]ourt and lie.
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It is he who is the liar, not she. It is he who is
the violent person, not she. It is he who is the
abusive, controlling individual, not she.
His assaultive and threatening behavior
towards [Mother] will continue the minute he is
around her. He was only apprehended at her
request from her residence where he was clearly told
by Judge Madenspacher he shall not live.
His drug and alcohol issues go back to
synthetic marijuana use.
The [trial c]ourt does note, as counsel
indicated in her comments on his behalf, that he has
reported all kinds of abuse to himself as a young
person from his mother on him. It does also indicate
that he was suspended from school a lot relative to
fighting.
One of the comments I saw in here is that he
indicates he talks and writes - - talks or writes to her
every day. I know that Judge Madenspacher’s
specific domestic violence conditions included the no
contact provision but for custody issues with the
children.
There were no custody issues with the children
when he’s incarcerated in the Lancaster County
Prison.
The [trial c]ourt has considered the pre-
sentence report in detail. The [trial c]ourt has
considered the penalties authorized by the
Legislature.
Incarceration is warranted because a lesser
sentence would depreciate the seriousness of the
crimes and the seriousness of his total lack of
concern for court orders.
N.T., 4/29/15, at 11-13.
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Upon review, we discern no abuse of the sentencing court’s discretion.
Appellant received a statutorily based sentence of total confinement after
revocation of his probation for technical violations. The record supports the
reasonableness of Appellant’s sentence. He has a lengthy criminal record,
and, at the majority of the dockets, Mother is the victim. He continues to
try to control her and contact her in violation of the trial court’s orders.
Based on these considerations, the trial court sentenced Appellant to total
confinement pursuant to 42 Pa.C.S.A. § 9771(c)(2)-(3). As “it is evident
that the [trial] court was aware of sentencing considerations and weighed
the considerations in a meaningful fashion[,]” this sentence should not be
disturbed. See Ahmad, supra. In addition to the reasons listed, it is
axiomatic that where “the sentencing court had the benefit of a [PSI], we
can assume the sentencing court was aware of relevant information
regarding the defendant’s character and weighed those considerations along
with mitigating statutory factors.” Commonwealth v. Rhoades, 8 A.3d
912, 919 (Pa. Super. 2010) (internal quotation marks and citation omitted),
appeal denied, 25 A.3d 328 (Pa. 2011), cert. denied, Rhoades v.
Pennsylvania, 132 S. Ct. 1746 (2012). Therefore, the above factors
provide a sufficient basis for the trial court to sentence Appellant to a period
of total confinement.
Based on the foregoing, we conclude the trial court did not abuse its
discretion in sentencing Appellant to two to four years’ incarceration upon
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revocation of his probation. Accordingly, we affirm the trial court’s April 29,
2015 judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/1/2016
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