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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ANTHONY GOMEZ :
:
Appellant : No. 3412 EDA 2017
Appeal from the Judgment of Sentence June 14, 2017
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0006523-2016
BEFORE: PANELLA, J., MURRAY, J., and STEVENS*, P.J.E.
MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 14, 2018
Anthony Gomez appeals from the judgment of sentence entered in the
Delaware County Court of Common Pleas, following the revocation of his
probation. Gomez challenges the discretionary aspects of his sentence. We
affirm.
The relevant facts and procedural history are as follows. On October 20,
2016, Gomez pleaded guilty to one count each of theft by unlawful taking and
criminal trespass.1 The trial court sentenced Gomez to two years’ probation
for the theft conviction and 6 to 23 months’ imprisonment for the trespass
conviction.
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3921(a), and 3503(a)(1)(i), respectively.
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Gomez was eventually released from prison. Immediately following his
release, he began to send threatening and harassing text and voice messages
to E. C., his ex-girlfriend, and J. C., her mother. The messages continued for
months, until April 2017, when the victims brought these messages to the
police and Gomez was charged with harassment. Gomez pled guilty to
summary harassment.
Along with allegations of non-compliance with the terms of his probation
and parole, Gomez’s conviction triggered a probation and parole violation
hearing for his underlying charges. On June 14, 2017, the court held a hearing
and concluded that Gomez violated the terms of his probation and his parole.
The court revoked Gomez’s probation for his theft conviction and resentenced
him to 30 to 60 months’ imprisonment.2 While Gomez filed a post-sentence
motion challenging the discretionary aspects of his sentence for theft, he did
not file an appeal following the motion’s denial.
Gomez filed a timely pro se PCRA petition seeking reinstatement of his
appellate rights. The PCRA court appointed counsel, and later reinstated
Gomez’s direct appeal rights nunc pro tunc. This timely appeal follows.
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2 The court also revoked Gomez’s parole for criminal trespass and recommitted
him to serve 351 days. Gomez does not challenge the revocation of his parole
in this appeal.
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On appeal, Gomez contends that the court abused its discretion in
imposing sentence.3 Specifically, Gomez claims his sentence was excessive,
harsh, and unreasonable because it “far surpassed what was required to
protect the public, the complainants, and the community; went well beyond
what was necessary to foster [Gomez’s] rehabilitation; and was grossly
disproportionate to the crime.” Appellant’s Brief, at 8. Therefore, Gomez
asserts the revocation court committed reversible error.
This claim challenges the discretionary aspects of Gomez’s sentence.
Initially, we note that 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).
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted).
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3 Gomez attempts to raise additional discretionary aspects of sentencing
claims in the argument section of his brief, i.e., that the trial court abused its
discretion by failing to consider various mitigating factors and failed to impose
an impartial sentence. See Appellant’s Brief, at 14-27. However, because
Gomez failed to include these issues in his statement of questions involved,
we cannot consider them. See Pa.R.A.P. 2116(a) (“No question will be
considered unless it is stated in the statement of questions involved or is fairly
suggested thereby.”); Pa.R.A.P. 2116(b) (“An appellant who challenges the
discretionary aspects of a sentence in a criminal matter shall include any
questions relating to the discretionary aspects of the sentence imposed … in
the statement required by paragraph (a).”)
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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. 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).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (quotation
marks and some citations omitted).
Gomez filed a timely notice of appeal and preserved his claim in a timely
post-sentence motion. While Gomez’s brief does not contain a separate Rule
2119(f) statement, the Commonwealth has not objected to this defect. See,
e.g., Commonwealth v. Gould, 912 A.2d 869, 872 (Pa. Super. 2006).
Therefore, we will not find waiver on this basis. And, Gomez’s claim that his
sentence is unreasonable in light of the situation, and grossly disproportionate
to his crimes, raises a substantial question for our review. See
Commonwealth v. Vega, 850 A.2d 1277, 1280-1281 (Pa. Super. 2004)
(finding claim that sentence is excessive and disproportionate to the crime,
particularly in light of facts surrounding appellants’ background, raises a
substantial question for review). Therefore, we will address the merits of
Gomez’s claim.
The imposition of sentence following the revocation of
probation is vested within the sound discretion of the trial court,
which, absent an abuse of that discretion, will not be disturbed on
appeal. An abuse of discretion is more than an error in judgment—
a sentencing court has not abused its discretion unless the record
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discloses that the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will.
Commonwealth v. Simmons, 56 A.3d 1280, 1283-1284 (Pa. Super. 2012)
(citation omitted).
“Upon revocation the sentencing alternatives available to the court shall
be the same as were available at the time of initial sentencing, due
consideration being given to the time spent serving the order of probation.”
42 Pa.C.S.A. § 9771(b). And the revocation court may impose a sentence of
total confinement upon revocation if “the defendant has been convicted of
another crime[.]” Id., at (c)(1). “[T]he trial court is limited only by the
maximum sentence that it could have imposed originally at the time of the
probationary sentence.” Commonwealth v. Infante, 63 A.3d 358, 365 (Pa.
Super. 2013) (citation omitted).
In addition, in all cases where the court resentences an offender
following revocation of probation … 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
[and] [f]ailure to comply with these provisions shall be grounds
for vacating the sentence or resentence and resentencing the
defendant. 42 Pa.C.S. § 9721(b). A trial court need not undertake
a lengthy discourse for its reasons for imposing a sentence or
specifically reference the statute in question, but the record as a
whole must reflect the sentencing court’s consideration of the
facts of the crime and character of the offender.
Commonwealth v. Colon, 102 A.3d 1033, 1044 (Pa. Super. 2014) (citations
and quotation marks omitted).
Here, the court placed the following reasons for imposing sentence on
the record at the revocation hearing:
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All right. So I’m looking at this report, and I’m using this as a
guideline to what I’m finding is the case here. Let’s go to #1,
report to probation and parole officer as directed. By the way, I
do not look at these allegations separately. I think that when
taken together they paint a picture pretty accurately and credibly
of a person who is the very opposite of someone who is responding
to probation. What they present to me is someone who’s
absolutely intent on evading and violating every concept
connected to probation. And if you look at each one under a
microscope if that was the only violation taken by itself, you might
say, well, it doesn’t warrant a substantial punishment. Quite true.
But what I’m talking about here is taking all these things together
and looking at what they present to the [c]ourt by way of a unified
picture of what [Gomez] is when he’s on probation. Report to
probation/parole officer as directed. He never did it. He never did
it. He had this weird notion in his mind that his case was going to
be -- or was transferred to Philadelphia and it never was. Yet he
continuously reported to Philadelphia asking -- raising a pretext
that he’s actually reporting.
So #2, obtaining permission from the probation officer
before changing address. [Defense counsel], you say that he was
easy to find. It’s not their obligation to find him whether it’s easy
[]or hard. He has to according to the sentencing sheet provide a
verifiable address which he never did. They didn’t know where he
was.
#3, comply with municipal, county and state laws.
Somehow he managed to convince somebody that this horrendous
situation that he created with th[ese] women was something that
was worthy of a summary offense. I find it incredible that that was
the outcome of all this.
Refrain from overt behavior which may endanger oneself or
others. All this pattern of harassment and whatever else he was
described as doing[,] the lowest point is the point at which this
young woman was trying to deal with her addiction and he drew
her back into addiction by providing her with drugs. That’s a major
felony and there’s no doubt in my mind that he actually did that,
and he may have done it more than once, and when he couldn’t
do it anymore he started on a campaign of harassment, getting
her fired. It’s incredible to me that he would confront her at her
work before he got her fired. I can understand why she might have
been dissatisfied with that approach.
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Complete the special conditions. I don’t believe [Gomez’s
witness] is telling the truth about that. He went to Philadelphia
still under some kind of pretext that he was being supervised in
Philadelphia to get treatment. I haven’t seen anything in the
record and it needs to be there if I’m to believe it that he actually
did that. It ain’t there.
So and then we have this long, long criminal history. Many
of these things have to deal with dealings in drugs and other
things. The case in Montgomery County where he’s still alive [sic]
and he’s under supervision or he’s going to be violated or looked
to for violation from the 2012 harassment of these people. So
there’s a quality of relentlessness about his behavior in a criminal
context from early on. And I don’t think that there’s any prospect
of any kind of rehabilitative probation or supervision for him other
than a jail sentence. It’ll give the public and people relief from him
for as long as the law would provide for. Therefore, I’m sentencing
him to 30 to 60 months in a state correctional institution without
RRI.
N.T., Revocation Hearing, 6/14/17, at 162-165 (paragraph demarcations
added).
Based upon our independent review of the record, the revocation court’s
findings set forth above, and our scope and standard of review, we conclude
that the revocation court did not abuse its discretion in sentencing Gomez to
30 to 60 month’s imprisonment following the revocation of his probation. The
court clearly considered the facts surrounding Gomez’s violations, as well as
the evidence presented as to his character. See Colon, 102 A.3d at 1044.
Based upon its consideration of these factors, the court concluded that the
public would best be protected by giving Gomez a sentence of 30 to 60
months’ imprisonment. Gomez has failed establish that the 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.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/14/18
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