J-S60031-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOSE SANTANA, :
:
Appellant : No. 3796 EDA 2015
Appeal from the Judgment of Sentence October 12, 2015
in the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0000260-2015
BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 30, 2016
Jose Santana (Appellant) appeals from the judgment of sentence
imposed following his conviction for aggravated assault. We affirm.
On August 17, 2015, Appellant entered a guilty plea to the
aforementioned crime based on his involvement in an altercation with Luis
Rivera Rojas (Rojas) wherein he stabbed Rojas “at least twice, once in the
abdomen and once in the lower back.”1 N.T., 8/17/2015, at 17. On October
12, 2015, he was sentenced to a term of 10 to 20 years of incarceration.
1
“[W]hen … Rojas was stabbed the blade went in through the abdominal
cavity, cutting the renal vein, and the blade then went into the spinal cord
and broke” from the handle of the knife. N.T., 8/17/2015, at 18. It appears
that both men were romantically involved with the same woman and that
the altercation occurred outside of her residence. N.T., 10/12/2015, at 5-6.
*Retired Senior Judge assigned to the Superior Court.
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Following the denial of his post-sentence motion,2 Appellant filed his notice
of appeal to this Court. The trial court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),
and one was filed. The trial court issued an opinion pursuant to Pa.R.A.P.
1925(a) on January 19, 2016.
Appellant presents one issue on appeal, wherein he alleges that the
trial court abused its discretion at sentencing by failing to consider all
necessary sentencing factors, including mitigating factors, and failing “to set
forth appropriate reasons for its radical deviation from the standard
sentencing ranges” in imposing the statutory maximum sentence.
Appellant’s Brief at 7 (unnecessary capitalization omitted).
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant
challenging the discretionary aspects of his sentence must
invoke this Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
2
Appellant filed pro se a motion to withdraw his plea and “for ineffective
councel [sic]” on October 19, 2015. On October 22, 2015, Appellant’s
counsel filed supplemental post-sentence motions, which incorporated
Appellant’s pro se motion to withdraw his guilty plea and included a motion
to modify sentence. Counsel also filed a petition for leave to withdraw as
counsel the same day. A hearing was held on November 17, 2015, at which
time it was determined that Appellant did not wish to pursue his motion to
withdraw his guilty plea and wanted to proceed with counsel on his motion
to modify his sentence. N.T., 11/17/2015, at 3-5. As a result, the motion to
withdraw his guilty plea and the petition for leave to withdraw as counsel
were withdrawn. Id. at 5-7; Order, 11/17/2015. As indicated above,
Appellant’s post-sentence motion to modify sentence was denied. N.T.,
11/17/2015, at 7; Order, 11/17/2015.
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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.[] § 9781(b).
Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing hearing
or in a motion to modify the sentence imposed.
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some
citations omitted) (quoting Commonwealth v. Evans, 901 A.2d 528, 533
(Pa. Super. 2006)).
Here, Appellant filed timely post-sentence motions and a notice of
appeal, and included a statement pursuant to Rule 2119(f) in his brief.
However, because the discretionary-aspects claims Appellant presented in
his post-sentence motions are not identical to those which he presents on
appeal, we must determine which, if any, claims are properly preserved for
our review. In so doing, we observe that
challenges to a court’s sentencing discretion must be raised
during sentencing or in a post-sentence motion in order for this
Court to consider granting allowance of appeal. Moreover, for
any claim that was required to be preserved, this Court cannot
review a legal theory in support of that claim unless that
particular legal theory was presented to the trial court. Thus,
even if an appellant did seek … to attack the discretionary
aspects of sentencing in the trial court, the appellant cannot
support those claims in this Court by advancing legal arguments
different than the ones that were made when the claims were
preserved.
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Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008) (citations
omitted).
In his post-sentence motion, Appellant challenged the imposition of
the statutory maximum sentence as excessive and manifestly unjust based
on mitigating factors present herein, the circumstances of the case,
Appellant’s personal circumstances, and the trial court’s alleged failure to
take into consideration Appellant’s rehabilitative needs. Supplemental
Post-Sentence Motions, 10/22/2015, at ¶¶ 9-14. Appellant did not include a
claim based on the trial court’s alleged failure to provide adequate reasons
for the sentence and, therefore, that claim is waived. Rush, 959 A.2d at
949.
Moreover, the only discretionary-aspects claim Appellant included in
his Rule 1925(b) statement was that “the sentence imposed was harsh and
manifestly excessive as the court imposed the maximum legal sentence
permitted without justification or proper explanation of the reasons for the
sentence or why the court deviated from the sentencing guidelines by
imposing the sentence that was nearly double the aggravated range.” Rule
1925(b) Statement, 1/7/2016 (unnecessary capitalization omitted).
Because Appellant failed to include any issue with respect to the trial court’s
failure to consider appropriate mitigating or other sentencing factors, those
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claims are also waived.3 See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included
in the Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived.”); Commonwealth v. Schutzues, 54 A.3d
86, 98 (Pa. Super. 2012) (holding defendant waived challenge to
discretionary aspects of sentencing where he failed to preserve claim in Rule
1925(b) statement).
Notwithstanding our conclusion that Appellant has waived his claims
for failing to preserve them properly, our review of the merits of the claims
reveals that he is not entitled to relief. In so doing, we turn to consideration
of whether Appellant has raised a substantial question worthy of appellate
review.4 The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d
825, 828 (Pa. Super. 2007). “A substantial question exists only when the
appellant advances a colorable argument that the sentencing judge’s actions
3
We further note that, though Appellant included in his Rule 1925(b)
statement the claim relating to whether the trial court provided adequate
reasons for its sentence on the record, such action does not rectify his
failure to raise the claim at sentencing or in his post-sentence motion.
Commonwealth v. Tejada, 107 A.3d 788, 790, 799 (Pa. Super. 2015)
(finding specific challenges to discretionary aspects of sentence waived
where raised for the first time in a Rule 1925(b) statement rather than at
sentencing or in a post-sentence motion).
4
“[W]e cannot look beyond the statement of questions presented and the
prefatory 2119(f) statement to determine whether a substantial question
exists.” Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super.
2012).
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were either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie the
sentencing process.” Griffin, 65 A.3d at 935 (citation and internal quotation
marks omitted).
Appellant’s Rule 2119(f) statement in its entirety is as follows:
[Appellant] is requesting the review of his sentence based
upon his belief that the sentencing court abused its discretion
when it imposed a harsh and excessive sentence contrary to the
fundamental norms of the sentencing guidelines. The sentence
imposed was the maximum legally allowable sentence and was
more than double the standard sentencing range as applied to
[Appellant]. The deviation from the guideline range must be
supported by appropriate and factually justifiable reasons and
[Appellant] does not believe that the court presented such
justification.
Appellant’s Brief at 11 (unnecessary capitalization omitted). Appellant’s
claim raises a substantial question. See Commonwealth v. Antidormi, 84
A.3d 736, 759 (Pa. Super. 2014) (“This Court has held that claims that the
sentencing court imposed a sentence outside the standard guidelines without
stating adequate reasons on the record presents a substantial question.”).
Although not included in his 2119(f) statement, Appellant’s issue as it relates
to the court’s alleged failure to consider the necessary sentencing factors,
including mitigating factors, also raises a substantial question.
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (“It is
well-established that a sentencing court’s failure to consider mitigating
factors raises a substantial question.”); Commonwealth v. Cartrette, 83
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A.3d 1030, 1042 (Pa. Super. 2013) (concluding that Appellant’s argument
that the sentencing court did not consider the appropriate sentencing factors
raises a substantial question).
In addressing the merits of Appellant’s claims, we begin with our
well-settled 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.
In every case in which the court imposes a sentence for a felony
or a misdemeanor, the court shall make as a part of the record,
and disclose in open court at the time of sentencing, a statement
of the reason or reasons for the sentence imposed. The
sentencing guidelines are not mandatory, and sentencing courts
retain broad discretion in sentencing matters, and therefore,
may sentence defendants outside the [g]uidelines. In every
case where the court imposes a sentence ... outside the
guidelines adopted by the Pennsylvania Commission on
Sentencing ... the court shall provide a contemporaneous written
statement of the reason or reasons for the deviation from the
guidelines. However, [t]his requirement is satisfied when the
judge states his reasons for the sentence on the record and in
the defendant’s presence. Consequently, all that a trial court
must do to comply with the above procedural requirements is to
state adequate reasons for the imposition of sentence on the
record in open court.
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. Where pre-
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sentence reports exist, we shall ... presume that the sentencing
judge was aware of relevant information regarding the
defendant’s character and weighed those considerations along
with mitigating statutory factors. A pre-sentence report
constitutes the record and speaks for itself.
Antidormi, 84 A.3d at 760–61 (internal quotation marks and citations
omitted).
The sentencing court provided the following reasoning for its sentence:
All right. I’ve taken into account everything that happened
at the hearings that we’ve had. I’ve taken into account the
content of the pre-sentence investigation report [(PSI)]. I’ve
taken into account the guidelines. I would point out among
those things that this man almost died and has gone through
terrible recovery since the date of this incident. [Appellant] has
shown an absolute callousness about the injuries sustained by
this victim and actually his own actions.
From what I read here, [Appellant] left the victim
unconscious after stabbing him. From what I read, I understand
[Appellant] then fled and had to be picked up, was actually
arrested I think it was in Manhattan and brought back to
Pennsylvania. Hardly the actions of a remorseful person. And
then also on the day of the stabbing, where does he go after the
stabbing? He goes to the casino to try to win some money.
This is a dangerous man that’s standing before me that
almost killed this victim here, and there may have been some
events done by this woman with her various boyfriends, but
none of that factors into what ultimately happened here in terms
of the stabbing.
This was intentional. This was cold-blooded as
demonstrated by [Appellant’s] actions during the stabbing and
following the stabbing. There are cases where the [c]ourt should
deviate from the guidelines, and there are cases where the
maximum punishment is in order. This is a dangerous man. The
community needs to be protected from him. Accordingly, the
maximum sentence is imposed.
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N.T, 10/12/2015, at 17-18.
Upon review, we conclude that the above-stated reasons are adequate
to support the imposition of the statutory-maximum sentence. “The court is
not required to parrot the words of the Sentencing Code, stating every factor
that must be considered under Section 9721(b).... [T]he record as a whole
must reflect due consideration by the court of the statutory considerations.”
Antidormi, 84 A.3d at 761 (internal quotation marks and citation omitted).
Here, the court noted its consideration of “everything that happened at the
hearings [it held],” the PSI, and the guidelines, and it made specific
observations with respect to Appellant’s lack of remorse, the impact on the
victim, the particular circumstances of the crime, and the protection of the
community. N.T., 10/12/2015, at 17-18. Moreover, we conclude that
Appellant’s claim that the court failed to consider the necessary sentencing
factors, including mitigating facts, is meritless in light of the fact that the
court had the benefit of a PSI. See Antidormi, 84 A.3d at 761;
Commonwealth v. Downing, 990 A.2d 788, 794 (Pa. Super. 2010) (“Our
Supreme Court has determined 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.”). Based on the foregoing, we discern
no abuse of discretion.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/2016
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