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NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JESUS SANCHEZ -ECHEVARRIA
Appellant No. 1265 MDA 2016
Appeal from the Judgment of Sentence July 14, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP- 06 -CR- 0005792 -2014
COMMONWEALTH OF PENNSYLVANIA i IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JESUS M. SANCHEZ -ECHEVARRIA
Appellant No. 1266 MDA 2016
Appeal from the Judgment of Sentence July 14, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP- 06 -CR- 0005625 -2015
BEFORE: LAZARUS, J., RANSOM, J., and FITZGERALD, J.*
MEMORANDUM BY LAZARUS, J.: FILED JANUARY 17, 2017
* Former Justice specially assigned to the Superior Court.
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Jesus Sanchez -Echevarria appeals from the judgment of sentence'
entered in the Court of Common Pleas of Berks County following his open
guilty plea to charges of aggravated assault2 and making terroristic threats.3
Upon review, we affirm.
On May 4, 2015, Sanchez -Echevarria entered a negotiated guilty plea
to making terroristic threats. He was sentenced to two years of probation.
While serving this sentence, the criminal charges in the instant matter for
aggravated assault and terroristic threats were filed. At his guilty plea
hearing on the new charges on July 14, 2016, Sanchez -Echevarria admitted
to attacking Alexandra Nazario- Santiago on November 4, 2015, by
repeatedly punching and kicking her and knocking her on the floor. He also
admitted that during the same incident he threatened to kill Nazario-
Santiago and screamed that he would "kill the kids." N.T. Guilty Plea and
Sentencing Hearing, 7/14/16, at 5.
The court accepted Sanchez -Echevarria's guilty plea, which constituted
a violation of probation regarding his earlier sentence for making terroristic
' Sanchez- Echevarria was sentenced two separate trial
in one proceeding at
court docket numbers and filed separate notices of appeal for each of the
docket numbers. Because Sanchez -Echevarria raises the same issue in both
appeals, we have consolidated them on appeal and we dispose of both cases
in this memorandum. See Pa.R.A.P. 513.
2 18 Pa.C.S. § 2702(a)(1).
3 18 Pa.C.S. § 2706(a)(1).
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threats. The court sentenced Sanchez -Echevarria to 3 to 6 years'
incarceration for aggravated assault and 5 years' probation for making
terroristic threats. As to the direct violation of his probationary sentence,
the court imposed a new sentence of 1 to 2 years' incarceration to be served
consecutively to the aggravated assault term of imprisonment. Sanchez -
Echevarria filed a timely post- sentence motion, which the court denied.
Thereafter, Sanchez -Echevarria filed a timely notice of appeal and court -
ordered concise statement of errors complained of on appeal pursuant to
Pa. R.A. P. 1925(b).
On appeal, Sanchez -Echevarria raises the following issue for our
review:
Whether the [s]entencing [c]ourt abused its discretion by
sentencing Sanchez -Echevarria to an aggregate term of
incarceration [of] 4 years to 8 years in a state correctional
institution where the sentencing judge focused solely on the
offense as it relates to the impact on the life of the victim and no
the other general principles set forth in the sentencing code,
specifically the lack of impact on the community and the
rehabilitative needs of [Sanchez -Echevarria] or other mitigating
facts set forth by [Sanchez -Echevarria] at the time of
sentencing[,] thereby causing the sentence of incarceration to be
excessive?
Brief of Appellant, at 6.
Sanchez -Echevarria asserts that the sentence imposed by the trial
court was excessive and unreasonable and did not take into consideration
his rehabilitative needs. This claim implicates the discretionary aspects of
Sanchez -Echevarria's sentence, and is not appealable as of right.
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Commonwealth v. Swope, 123 A.3d 333, 337 (Pa. Super. 2015). Rather,
before we can address such a discretionary challenge, an appellant must
comply with the following requirements:
An appellant challenging the discretionary aspects of his
sentence 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.
Id. (quoting Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.
2011)).
Instantly, Sanchez -Echevarria filed a post- sentence motion raising his
sentencing claim, followed by a timely notice of appeal to this Court. He has
also included in his appellate brief a concise statement of reasons relied
upon for allowance of appeal with respect to the discretionary aspects of his
sentence pursuant to Rule 2119(f). We must now determine whether
Sanchez -Echevarria has raised a substantial question that the sentence
appealed from is not appropriate under the Sentencing Code. In order to do
so, an appellant must "advance a colorable argument that the sentencing
court's actions were inconsistent with a specific provision of the Sentencing
Code or violated a fundamental norm of the sentencing process."
Commonwealth v. Feucht, 955 A.2d 377, 383 -84 (Pa. Super. 2008).
In his Rule 2119(f) statement, Sanchez -Echevarria claims that his
sentence is manifestly excessive because it is beyond the recommendation
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of the Commonwealth and the supervising probation officer. Ordinarily, the
mere claim that a sentence is excessive when it is within the statutory limits
does not raise a substantial question. See Commonwealth v. Coss, 695
A.2d 831, 833 (Pa. Super. 1997) Here, however, Sanchez -Echevarria also
asserts that the sentencing court took into account only the impact of the
crime on the victim, thereby considering only one of the general factors set
forth in 42 Pa.C.S. § 9721. See 42 Pa.C.S. § 9721(b) ( "sentence imposed
should call for confinement that is consistent with 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 "). Thus, Sanchez -Echevarria alleges that the sentencing court
violated a fundamental norm of the sentencing process. Feucht, supra.
Accordingly, he has raised a substantial question, and we will address the
merits of his appeal.
Sentencing is within the sound discretion of the trial court and will not
be disturbed absent a manifest abuse of discretion. Commonwealth v.
Walls, 926 A.2d 957, 961 (Pa. 2007). "[A]n abuse of discretion is more
than a mere error of judgment; thus, a sentencing court will not have
abused its discretion unless 'the record discloses that the judgment
exercised was manifestly unreasonable, or the result of partiality, prejudice,
bias or ill- will. " Id. (quoting Commonwealth v. Smith, 673 A.2d 893, 895
(Pa. 1996)).
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Instantly, the sentence imposed was beyond the recommendation of
the Commonwealth but within the statutory limits for the crimes to which
Sanchez -Echevarria pled guilty. Moreover, Sanchez -Echevarria's contention
that the court focused solely on the impact on the victim is belied by the
record. At sentencing in this matter, the court noted that Sanchez -
Echevarria's probationary sentence for previously making terroristic threats
had not been effective in rehabilitating him. Additionally, the altercation
with Nazario- Santiago took place in front of Sanchez -Echevarria's and her
children, and the court noted that "one sees that violence and thinks that's
the appropriate way to behave. So I have concerns about what his children
have witnessed." N.T. Guilty Plea and Sentencing Hearing, 7/14/16, at 11-
12. Accordingly, the court took a reasoned approach and sentenced
Sanchez -Echevarria after taking into account multiple factors, including
Sanchez -Echevarria's rehabilitative needs and the protection of the public.
42 Pa.C.S. § 9721(b). Thus, we discern no abuse of discretion. Walls,
supra.
Judgment of sentence affirmed.
Judgment Entered.
J:seph Seletyn,
D.
Prothonotary
Date: 1/17/2017
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Com. v. Sanchez-Echevarria, J.
Combined Opinion