J-S83023-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HERIBERTO VAZQUEZ :
:
Appellant : No. 708 WDA 2018
Appeal from the Judgment of Sentence April 10, 2018
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0003139-2017
BEFORE: PANELLA, J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 19, 2019
Appellant, Heriberto Vazquez, appeals from the judgment of sentence
entered on April 10, 2018, following his open guilty plea to one count of
aggravated assault and one count of aggravated assault by vehicle while
driving under the influence (“DUI”).1 Additionally, Appellant’s counsel has
filed a petition seeking to withdraw her representation and a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009), which govern a withdrawal from
representation on direct appeal. Appellant has not filed a response to
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1 18 Pa.C.S. § 2702(A)(4) and 75 Pa.C.S. § 3735.1(a), respectively.
Appellant had been charged with three counts each of aggravated assault,
aggravated assault with a deadly weapon, aggravated assault by vehicle while
DUI, and recklessly endangering another person, and one count each of
terroristic threats, DUI-incapable of safe driving, and DUI-highest rate of
alcohol. Information, 11/20/17, at 1–6.
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counsel’s petition. After careful review, we grant counsel’s petition to
withdraw and affirm Appellant’s judgment of sentence.
The prosecutor presented the following factual basis for Appellant’s
guilty plea:
[C]ount [six] . . . alleges that on or about September 11, 2017, in
the [C]ounty of Erie, you did attempt to cause or intentionally or
knowingly cause bodily injury to another with a deadly weapon, in
that [Appellant] did drive a 2016 Honda Civic while under the
influence of alcohol at a high rate of speed striking another vehicle
causing bodily injury to the passenger Kiera Holl, H-O-L-L,
occurring in the 1200 block of Pittsburgh Avenue in the [C]ity of
Erie. Thereby, [Appellant] did commit the crime of aggravated
assault, a felony of the second degree.
* * *
Count [thirteen] alleges on the same date and location
[Appellant] did attempt to cause or negligently cause serious
bodily injury to another person, namely Enad Al Muraihej, E-N-A-
D A-L M-U-R-A-I-H-E-J, as well as Maithem Jabbar, M-A-I-T-H-
E-M, Jabbar, J-A-B-B-A-R, striking that vehicle in which Mr. Jabbar
was a passenger, occurring at the 100 block of Pittsburgh Avenue
in the [C]ity of Erie. Thereby, [Appellant] did commit the crime
of aggravated assault by vehicle while [DUI], a felony of the
second degree.
N.T. (Guilty Plea), 1/31/18, at 7–8. The trial court accepted the guilty plea,
and, with the court’s permission, nol prossed the remaining thirteen counts.
On April 10, 2018, after receipt of a pre-sentence investigation (“PSI”)
report, the trial court sentenced Appellant to incarceration for an aggregate
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term of forty to eighty months.2 Appellant filed a Motion for
Reconsideration/Modification of Sentence on April 20, 2018, which the trial
court denied on April 24, 2018.
Appellant filed a timely appeal. Pursuant to Pa.R.A.P. 1925(c)(4),
Appellant’s counsel filed a statement of intent to file an Anders brief, the
Commonwealth declined to file a brief, and the trial court did not file an
opinion. On appeal, counsel presents the following question on Appellant’s
behalf: “Whether [Appellant’s] sentence is manifestly excessive, clearly
unreasonable and inconsistent with the objectives of the Sentencing Code?”
Anders Brief at 3.
Before we address the question raised on appeal, we must resolve
appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83
A.3d 1030, 1032 (Pa. Super. 2013) (en banc). There are procedural and
briefing requirements imposed upon an attorney who seeks to withdraw on
direct appeal. The procedural mandates are that counsel must:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
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2 In light of Appellant’s offense gravity score of eight and a prior record score
of four on count six, the trial court sentenced Appellant to incarceration for
twenty-one to forty-two months and payment of costs and fees of $134, a
sentence on the low end of the standard Sentencing-Guideline range. On
count thirteen, with an offense gravity score of nine, the trial court sentenced
Appellant to a concurrent term of imprisonment of forty to eighty months, also
a standard-range sentence, followed by two years of probation. N.T.
(Sentencing), 4/10/18, at 12–13; Guideline Sentence Form, 4/16/18.
Appellant was also boot-camp eligible.
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of the brief to the defendant; and 3) advise the defendant that he
or she has the right to retain private counsel or raise additional
arguments that the defendant deems worthy of the court’s
attention.
Id. at 1032 (citation omitted).
In this case, counsel has satisfied those directives. Within her petition
to withdraw, counsel averred that she conducted a conscientious review of the
record and concluded that the present appeal is wholly frivolous. Counsel sent
Appellant a copy of the Anders brief and the petition to withdraw, as well as
a letter, a copy of which is attached to the withdrawal petition. In the letter,
counsel advised Appellant that he could represent himself or retain private
counsel to represent him. Appellant did not respond to counsel’s request to
withdraw.
We now examine whether the brief satisfies the Supreme Court’s
dictates in Santiago, which provide that:
in the Anders brief that accompanies court-appointed counsel’s
petition to withdraw, counsel must: (1) provide a summary of the
procedural history and facts, with citations to the record; (2) refer
to anything in the record that counsel believes arguably supports
the appeal; (3) set forth counsel’s conclusion that the appeal is
frivolous; and (4) state counsel’s reasons for concluding that the
appeal is frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that have led
to the conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361; Cartrette, 83 A.3d at 1032.
Counsel’s brief is sufficiently compliant with Santiago. It sets forth a
brief history of this case, outlines pertinent case authority, cites to the record,
and refers to issues of arguable merit. Anders Brief at 7–9. Further, the
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brief sets forth counsel’s conclusion that the appeal is frivolous and the
reasons for counsel’s conclusion. Id. at 8–9. Satisfied that counsel has met
the technical requirements of Anders and Santiago, “we now have the
responsibility to make a full examination of the proceedings and make an
independent judgment to decide whether the appeal is in fact wholly
frivolous.” Commonwealth v. Tukhi, 149 A.3d 881, 886 (Pa. Super. 2016)
(citation and internal quotation marks omitted).
The issue presented challenges the discretionary aspects of Appellant’s
sentence. We note that “[t]he right to appellate review of the discretionary
aspects of a sentence is not absolute.” Commonwealth v. Zirkle, 107 A.3d
127, 132 (Pa. Super. 2014). Rather, where an appellant challenges the
discretionary aspects of a sentence, the appeal should be considered a petition
for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa.
Super. 2007).
As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.
Super. 2010):
[a]n 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).
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Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006)).
Herein, the first three requirements of the four-part test are met:
Appellant brought a timely appeal and included in his appellate brief the
necessary separate concise statement of the reasons relied upon for allowance
of appeal pursuant to Pa.R.A.P. 2119(f). Anders Brief at 4–5. Moreover,
Appellant preserved the issue by filing a post-sentence motion.3 Therefore,
we next determine whether Appellant raised a substantial question requiring
us to review the discretionary aspects of the sentence imposed by the trial
court.
The determination of whether there is a substantial question is made on
a case-by-case basis, and this Court will grant the appeal 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. Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super.
2015). “[W]e cannot look beyond the statement of questions presented and
the prefatory 2119(f) statement to determine whether a substantial question
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3 In his post-sentence motion, while not directly articulating that his sentence
was excessive, Appellant implied it by his request for the imposition of a lower
sentence on count thirteen. Motion for Reconsideration/Modification of
Sentence, 4/20/18.
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exists.” Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super.
2012) (citation omitted).
On Appellant’s behalf, counsel submits that the trial court failed to
consider Appellant’s rehabilitative needs. Anders Brief at 5. We conclude
that Appellant’s challenge to the imposition of his sentence as excessive,
together with his claim that the trial court failed to consider his rehabilitative
needs, presents a substantial question. See Commonwealth v. Johnson,
125 A.3d 822, 826 (Pa. Super. 2015) (excessive sentence claim, in
conjunction with assertion that sentencing court failed to consider mitigating
factors, raises a substantial question). Thus, we grant Appellant’s application
for allowance of appeal and address the merits of this sentencing claim.
Caldwell, 117 A.3d at 770.
When reviewing a challenge to the discretionary aspects of sentencing,
this Court will determine whether the trial court has abused its discretion.
Caldwell, 117 A.3d at 770.
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.
Id. (quoting Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super.
2014)).
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While acknowledging that Appellant’s sentences on both counts were in
the standard range of the Sentencing Guidelines, Appellant avers that the trial
court failed to consider Appellant’s alcohol addiction and the fact that certain
prior convictions resulted when Appellant was a juvenile. Anders Brief at 7–
8. We disagree.
The record reveals that the trial court had before it the PSI provided by
the Pennsylvania Board of Probation and Parole. N.T. Sentencing, 4/10/18,
at 11. When a PSI report exists, this Court presumes that the trial court “was
aware of relevant information regarding the defendant’s character and
weighed those considerations along with the mitigating statutory factors.”
Commonwealth v. Finnecy, 135 A.3d 1028, 1038 (Pa. Super. 2016).
Moreover, defense counsel advised the court of Appellant’s long-
standing alcoholism and accompanying cirrhosis of the liver. N.T.
(Sentencing), 4/10/18, at 5–6. Defense counsel also reminded the trial court
that some of Appellant’s prior offenses occurred when he was a juvenile, and
his adult convictions were “misdemeanors and summaries.” Id. at 5–6, 7.
Counsel pled for leniency in sentencing on Appellant’s behalf “based on
[Appellant] not taking this to trial, [and] understanding what he did was
wrong. He understands that there were three victims in this case[,] and they
were injured due to his actions, driving while intoxicated. Id. at 7. In
addition, Appellant exercised his right to allocution. Id. at 7–11; Pa.R.Crim.P.
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704 (C)(1) (trial court shall afford the appellant the opportunity to make a
statement in his behalf at the time of sentencing).
Thus, the trial court was aware of Appellant’s background, criminal
history, and failure to obtain and maintain treatment for alcoholism.
The trial court stated the basis for Appellant’s sentence as follows:
I’m taking into consideration the statements of both counsel, your
statements here, also the [PSI] report, which includes the
sentencing guidelines that[] are promulgated by the Pennsylvania
Commission on Sentencing. I see no reason to give you a
mitigated range sentence.
N.T. (Sentencing), 4/10/18, at 12. In imposing sentence on count thirteen
and ordering it to run concurrently to the sentence on count six, the trial court
stated, “I’m cutting you a break in that regard.” Id. at 13.
Thus, we conclude that Appellant’s claim that the trial court failed to
consider his rehabilitative needs is meritless. We will not re-weigh those
factors and impose our judgment in place of the sentencing court.
Commonwealth v. Macias, 968 A.2d 773, 778 (Pa. Super. 2009).
Finally, we have independently reviewed the record in order to
determine if counsel’s assessment about the frivolous nature of the present
appeal is correct. Tukhi, 149 A.3d at 886; see also Commonwealth v.
Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en banc) (after determining
that counsel has satisfied the technical requirements of Anders and
Santiago, this Court must conduct a review of the record “to ascertain if on
its face, there are non-frivolous issues that counsel, intentionally or not,
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missed or misstated.”). Following our review of the issue raised by counsel
and our independent review of the record, we conclude that an appeal in this
matter is frivolous. Accordingly, we grant counsel’s petition to withdraw and
affirm the judgment of sentence.
Petition to withdraw as counsel granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/19/2019
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