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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
SALVADOR LEMUS LOPEZ
Appellant No. 2771 EDA 2016
Appeal from the Judgment of Sentence July 28, 2016
in the Court of Common Pleas of Chester County Criminal Division
at No(s): CP-15-CR-0002047-2014
BEFORE: GANTMAN, P.J., STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 12, 2017
Appellant, Salvador Lemus Lopez, appeals from the judgment of
sentence entered in the Chester County Court of Common Pleas after he
pleaded guilty to possession with intent to deliver cocaine, 1 criminal
conspiracy,2 and corrupt organizations.3 He challenges the discretionary
aspects of his sentence. We affirm.
The facts are unnecessary for our disposition. We adopt the
procedural history set forth by the trial court’s decision:
On July 8, 2014, the Commonwealth charged Appellant
with 2,376 violations of the Controlled Substance, Drug,
Device and Cosmetic Act and related crimes. On March 7,
*
Former Justice specially assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30).
2
18 Pa.C.S. § 903.
3
18 Pa.C.S. § 911(b).
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2016, Appellant entered open guilty pleas to twenty-five
counts of delivery, or possession with intent to deliver
cocaine, and one count each of criminal conspiracy and
corrupt organizations. On June 16, 2016, we sentenced
Appellant to a [sic] serve a total term of incarceration of
27 years, 8 months, to 55 years, 4 months. We
determined that Appellant was an “eligible offender” under
the Recidivism Risk Relation Incentive (RRRI), 61 Pa.C.S. §
4505(a), and imposed a RRRI minimum sentence of
slightly more than 23 years. Appellant filed a timely
motion for modification of this sentence, which the Court
granted at a hearing held on July 28, 2016. At that time
we resentenced Appellant to serve a total term of
incarceration of 19 to 38 years. The RRRI minimum
sentence imposed that day was 15.83 years.
* * *
Appellant was also given credit for time served of
approximately 27 months.
Trial Ct. Op., 12/22/16, at 1-3 (some citations omitted). This appeal
followed. Appellant filed a court ordered Pa.R.A.P. 1925(b) statement of
errors complained of on appeal, and the trial court filed a responsive opinion.
Appellant raises the following issues for our review:
I. Did the trial court abuse its discretion imposing an
aggregate sentence of nineteen (19) years to thirty-eight
(38) years’ state incarceration?
* * *
II. Did the trial court err in imposing fines totaling
$225,000? Was there evidence of record that Appellant
would be able to pay the fines pursuant to 42 Pa.C.S. §
9726(c)?
Appellant’s Brief at 4.
In the case sub judice,
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[i]nitially, we must determine whether [Appellant] has the
right to seek permission to appeal the sentencing court’s
exercise of its discretion. Where a defendant pleads guilty
without any agreement as to sentence, the defendant
retains the right to petition this Court for allowance of
appeal with respect to the discretionary aspects of
sentencing.
Commonwealth v. Brown, 982 A.2d 1017, 1018-19 (Pa. Super. 2009)
(citation omitted). Instantly, there was no agreement as to sentencing, thus
Appellant has the right to seek permission to appeal. See id. at 1019.
This Court has stated, “[T]here is no absolute right to appeal when
challenging the discretionary aspect of a sentence.” Commonwealth v.
Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citations and quotation
marks omitted).
[A]n appellant challenging the sentencing court’s discretion
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. 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);[4] and (4) whether there is a
4
Rule 2119(f) provides as follows:
An appellant who challenges the discretionary aspects of a
sentence in a criminal matter shall set forth in a separate
section of the brief a concise statement of the reasons
relied upon for allowance of appeal with respect to the
discretionary aspects of a sentence. The statement shall
immediately precede the argument on the merits with
respect to the discretionary aspects of the sentence.
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substantial question that the sentence appealed from
is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (some
citations omitted).
The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis. A
substantial question exists only when the appellant
advances a colorable argument that the sentencing judge’s
actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing process.
* * *
Although Pennsylvania’s system stands for
individualized sentencing, the court is not required to
impose the “minimum possible” confinement. Under 42
Pa.C.S.A. § 9721, the court has discretion to impose
sentences consecutively or concurrently and, ordinarily, a
challenge to this exercise of discretion does not raise a
substantial question.
Commonwealth v. Moury, 992 A.2d 162, 170–71 (Pa. Super. 2010)
(citations omitted); see also Dodge, 77 A.3d at 1270 (citing Moury with
approval).
In the instant case, Appellant filed a timely notice of appeal and
preserved the issue in a motion for reconsideration of sentence. Appellant
included a concise statement of reasons relied upon for allowance of appeal
in which he “asserts that a substantial question exists in that he was
Pa.R.A.P. 2119(f).
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sentenced within the sentencing guidelines but the case involves
circumstances where the application of the guidelines would be clearly
unreasonable as applied.” Appellant’s Brief at 14.5 Appellant argues the
court “failed to give appropriate weight to Appellant’s age and lack of a prior
record in fashioning its sentence.” Id. at 15. He contends that
5
We acknowledge
that this Court is not persuaded by bald assertions or the
invocation of special words in a concise statement of
reasons; [t]o the contrary, a concise statement must
articulate the way in which the court’s conduct violated the
sentencing code or process.
Commonwealth v. Cannon, 954 A.2d 1222, 1229 (Pa. Super. 2008)
(citations and quotation marks omitted). However, in Commonwealth v.
Shugars, 895 A.2d 1270 (Pa. Super. 2006), the appellant “failed to provide
a Rule 2119(f) statement in his brief.” Id. at 1274. This Court opined:
“[I]n the absence of any objection from the Commonwealth, we are
empowered to review claims that otherwise fail to comply with Rule
2119(f).” Id. (citation omitted). Instantly, the Commonwealth did not
object to the Rule 2119(f) statement. The Commonwealth contends
Appellant
has failed to set forth sufficient reasons for this Court to
grant the allowance of appeal with respect to the
discretionary aspects of the sentence. Specifically
[Appellant] has failed to demonstrate that there is a
substantial question that the sentence imposed is not
appropriate under the Sentencing Code. [Appellant’s] only
attempt at raising a substantial question is his claim that
the application of the guidelines are clearly unreasonable
as applied. (Appellant Brief at 14).
Commonwealth’s Brief at 10. Thus, we will review the claim. See Shugars,
895 A.2d at 1274.
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[t]he imposed sentences were within the sentencing
guideline. As applied consecutively, however, considering
Appellant’s age, it created a de facto life sentence which is
disproportionate with the gravity of the offenses,
protection of the community, and [A]ppellant’s
rehabilitative needs. In that regard the sentences were
unreasonable . . . .
Id. at 19-20. We find Appellant has raised a substantial question. See
Moury, 992 Ad.2d at 170.
Our standard of review is as follows:
[s]entencing 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. An abuse of discretion is more
than just an error in judgment and, on appeal, the
trial court will not be found to 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.
More specifically, 42 Pa.C.S.A. § 9721(b) offers the
following guidance to the trial court’s sentencing
determination:
[T]he 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.
42 Pa.C.S.A. § 9721(b).
Furthermore,
section 9781(c) specifically defines three instances in
which the appellate courts should vacate a sentence
and remand: (1) the sentencing court applied the
guidelines erroneously; (2) the sentence falls within
the guidelines, but is “clearly unreasonable” based
on the circumstances of the case; and (3) the
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sentence falls outside of the guidelines and is
“unreasonable.” 42 Pa.C.S. § 9781(c). Under 42
Pa.C.S. § 9781(d), the appellate courts must review
the record and consider the nature and
circumstances of the offense, the sentencing court’s
observations of the defendant, the findings that
formed the basis of the sentence, and the sentencing
guidelines. The weighing of factors under 42 Pa.C.S.
§ 9721(b) is exclusively for the sentencing court,
and an appellate court could not substitute its own
weighing of those factors. The primary
consideration, therefore, is whether the court
imposed an individualized sentence, and whether the
sentence was nonetheless unreasonable for
sentences falling outside the guidelines, or clearly
unreasonable for sentences falling within the
guidelines, pursuant to 42 Pa.C.S. § 9781(c).
Commonwealth v. Bricker, 41 A.3d 872, 875-76 (Pa. Super. 2012)
(alterations and some internal citations omitted). Our Supreme Court has
stated:
Where pre-sentence reports exist, we shall continue to
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. In order to dispel any
lingering doubt as to our intention of engaging in an effort
of legal purification, we state clearly that sentencers are
under no compulsion to employ checklists or any extended
or systematic definitions of their punishment procedure.
Having been fully informed by the pre-sentence
report, the sentencing court’s discretion should not
be disturbed.[6] This is particularly true, we repeat, in
those circumstances where it can be demonstrated that
the judge had any degree of awareness of the sentencing
6
The trial court ordered and received a presentence report. See Docket at
420.
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considerations, and there we will presume also that the
weighing process took place in a meaningful fashion.
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (emphasis added);
see also Commonwealth v. Diaz, 867 A.2d 1285, 1286, 1288 (Pa. Super.
2005) (rejecting the seventy-four year old defendant’s claim that his
sentence of twelve to twenty-four years’ imprisonment was a virtual life
sentence and, therefore, manifestly excessive where the trial court reviewed
all evidence before it, including a pre-sentence report).
This Court has held that
42 Pa.C.S.A. section 9721 affords the sentencing court
discretion to impose its sentence concurrently or
consecutively to other sentences being imposed at the
same time or to sentences already imposed. Any
challenge to the exercise of this discretion ordinarily does
not raise a substantial question. Commonwealth v.
Johnson, 873 A.2d 704, 709 n.2 (Pa. Super. 2005); see
also Commonwealth v. Hoag, [ ] 665 A.2d 1212, 1214
([Pa. Super.] 1995) (explaining that a defendant is not
entitled to a “volume discount” for his or her
crimes).
Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (some
citations omitted and emphasis added). In the case sub judice, the trial
court opined:
We granted reconsideration of Appellant’s original
sentence because we were uncomfortable with its length,
given Appellant’s age (67) and life expectancy
(approximately 85 years). We then imposed a 19 to 38
year sentence, with a minimum RRRI sentence of 15.83
years. Appellant was also given credit for time served of
approximately 27 months. We specifically noted that the
minimum sentence imposed was less than his projected
life expectancy. Thus, the challenged sentence makes
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Appellant eligible for parole at the age of 81, allowing him
to see “the light at the end of the tunnel.”
In addition, prior to imposing Appellant’s sentence, the
[c]ourt considered the factors set forth in 42 Pa.C.S.A. §
9721(b)[7], specifically “the protection of the public, the
gravity of the offense as it relates to the impact on the
victim and the community, the defendant’s rehabilitative
needs, and the sentencing guidelines. We noted during his
first hearing that while Appellant was not a drug “kingpin,”
he was in fact the leader of his own drug enterprise.
Trial Ct. Op. at 3 (some citations omitted).8 We agree no relief is due.
In the case sub judice, the trial court had the benefit of a presentence
report. See Devers, 546 A.2d at 18. The trial court considered the factors
set forth in Section 9721. See Bricker, 41 A.3d at 875-76; Marts, 889
A.2d at 612. We discern no abuse of discretion. See Bricker, 41 A.3d at
875-76.
7
Section 9721 provides in pertinent part as follows:
[T]he court shall follow the general principle that the
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.
42 Pa.C.S. § 9721(b).
8
We note that in Dodge, this court affirmed the judgment of sentence of
forty years, seven months’ to eighty-one years and two months’
incarceration for “forty counts of receiving stolen property, two counts of
burglary, two counts of criminal trespass, and one count each of possession
of a small amount of marijuana, possession of drug paraphernalia, and
unauthorized use of a motor vehicle.” Dodge, 77 A.3d at 1267 (footnote
omitted).
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Lastly, Appellant contends the trial court erred in imposing fines
totaling $225,000. Appellant avers that
[t]he Sentencing Code provides that the [c]ourt not
sentence a defendant to pay a fine unless it appears of
record that the defendant will be able to pay the fine. 42
Pa.C.S.A. § 9726(c). Further, the Sentencing Code
provides that the [c]ourt take into account the defendant’s
financial resources and the nature of the burden the
payment will impose. 42 Pa.C.S.A. § 9726(d). The [c]ourt
did not make a determination regarding Appellant’s
financial resources or the burden the fines would impose.
* * *
The court found that the money subject to forfeiture
which included $40,000 seized from Appellant’s home and
$88,000 seized from bank accounts, should be applied to
Appellant’s fines and costs. Other than this determination,
the court did not take into account Appellant’s financial
resources and did not consider the burden imposed. It
does not appear of record how Appellant would be able to
pay the fines imposed.
Appellant’s Brief at 29-30.
In Commonwealth v. Boyd, 73 A.3d 1269 (Pa. Super. 2013) (en
banc), this Court held that
a claim that the trial court failed to consider the
defendant’s ability to pay a fine can fall into several
distinct categories. First, a defendant may claim that
there was no record of the defendant’s ability to pay
before the sentencing court. In the alternative, a
defendant may claim that the sentencing court did not
consider evidence of record. Finally, a defendant may
claim that the sentencing court failed to permit the
defendant to supplement the record.
After reviewing these categories, we conclude that only the
first type of claim qualifies as non-waivable . . . . Section
9726(c) requires that it be “of record” that the defendant
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can pay the fine. Therefore, an argument that there was
no evidence of the defendant’s ability to pay constitutes a
claim that the fine was imposed in direct contravention of
a statute. Furthermore, a complete lack of evidence in the
record would be apparent from the face of the record and
would not require the application of reasoning or discretion
on the part of the appellate court. Accordingly, we
conclude [ ] that a claim raising the complete absence of
evidence of the defendant’s ability to pay is not subject to
waiver for a failure to preserve the issue in the first
instance.
In contrast, the other categories of claims concerning the
sentencing court’s consideration of the defendant’s ability
to pay are subject to waiver . . . . These claims would
require the application of discretionary reasoning to the
record before the sentencing court. Section 9726(c) does
not require the sentencing court to credit any specific
testimony. Nor does it require that the sentencing court
hold a hearing on the issue. So long as there is some
evidence of record regarding the defendant’s ability
to pay, arguments over the scope and weighting of
such evidence implicate the discretionary aspects of
the sentence imposed. Therefore, these categories of
claims are subject to waiver for failure to preserve the
claim in the first instance.
Id. at 1273-74 (some citations omitted and emphasis added).
In the case sub judice, Appellant’s claim raises a challenge to the
discretionary aspect of his sentence. See id. Appellant’s statement of the
reasons to allow the appeal from the discretionary aspects of his sentence
does not raise the issue of the amount of the fine. See Leatherby, 116
A.3d at 83. However, the Commonwealth has not raised an objection to the
failure to raise the issue in the statement of reasons to allow the appeal.
Moreover, Appellant contends a specific provision of the Sentencing Code
was violated, which raises a substantial question. See Commonwealth v.
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Fusco, 594 A.2d 373, 374 (Pa. Super. 1991) Therefore, we will address
Appellant’s claim. See id.; Shugars, 895 A.2d at 1274.
A court may impose a fine where:
(b) Fine as additional sentence.─The court may
sentence the defendant to pay a fine in addition to another
sentence, either involving total or partial confinement or
probation, when:
(1) the defendant has derived a pecuniary gain from the
crime; or
(2) the court is of the opinion that a fine is specially
adapted to deterrence of the crime involved or to the
correction of the defendant.
(c) Exception.─The court shall not sentence a defendant
to pay a fine unless it appears of record that:
(1) the defendant is or will be able to pay the fine; and
(2) the fine will not prevent the defendant from making
restitution or reparation to the victim of the crime.
(d) Financial resources.─In determining the amount and
method of payment of a fine, the court shall take into
account the financial resources of the defendant and the
nature of the burden that its payment will impose.
42 Pa.C.S. § 9726(b)-(d).
“Imposition of a fine is not precluded merely because the defendant
cannot pay the fine immediately or because he cannot do so without
difficulty.” Commonwealth v. Thomas, 879 A.2d 246, 264 (Pa. Super.
2005) (citing Commonwealth v. Church, 522 A.2d 30, 33 (Pa. 1987)).
The trial court opined:
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Prior to imposing the fines, the [c]ourt took into account
Appellant’s financial resources, and specifically noted that
$40,000 in cash had already been seized from his home
and an additional $88,000 seized from his bank account.
Accordingly, at the time of the sentencing, evidence
appeared “of record,” of Appellant’s ability to pay a
significant portion of the fines imposed. Yet to be
determined is the value of any other property that
Appellant may own here in the United States or in Mexico
where he frequently traveled. It was established during
the investigation that Appellant was able to come up with
tens of thousands of dollars to purchase cocaine. Other
funds are likely to be discovered. Since a fine is a
permissible additional punishment where, as here, “the
defendant has derived a pecuniary gain from the crime,”
the challenged fines were properly imposed.
Trial Ct. Op. at 5 (citations omitted).
In the case sub judice, the trial court considered Appellant’s financial
resources and his ability to pay the fine imposed. See 42 Pa.C.S. §
9726(b)-(d); Boyd, 73 A.3d at 1273-74; Thomas, 879 A.2d at 264. We
discern no abuse of discretion by the trial court. See Boyd, 73 A.3d at
1274. Accordingly, after examining the record as a whole, we affirm the
judgment of sentence. See id.; Devers, 546 A.2d at 18.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/12/2017
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Com. v. Lopez, S.
Combined Opinion