J-S05003-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EUGENIA VALENTE,
Appellant No. 1280 MDA 2016
Appeal from the Judgment of Sentence Entered July 6, 2016
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s):
CP-35-CR-0002513-2015
CP-35-CR-0002514-2015
CP-35-CR-0002523-2015
BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 03, 2017
Appellant, Eugenia Valente, appeals from the judgment of sentence of
an aggregate term of 12 to 36 months’ incarceration, followed by 6 years’
probation, imposed after she pled guilty in three separate cases to various
offenses. On appeal, Appellant solely challenges certain discretionary
aspects of her sentence. After careful review, we affirm.
Briefly, Appellant’s charges stemmed from her entering the homes of
three different individuals and stealing jewelry from two of the homes, and a
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*
Retired Senior Judge assigned to the Superior Court.
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purse containing $200 in cash from the other residence.1 Based on this
conduct, Appellant was charged, in three separate cases, with two counts of
burglary, 18 Pa.C.S. § 3502(a)(1); two counts of criminal trespass, 18
Pa.C.S. § 3503(a)(1)(i); three counts of theft by unlawful taking, 18 Pa.C.S.
§ 3921(a); and three counts of receiving stolen property, 18 Pa.C.S. §
3925(a).
On April 11, 2015, Appellant entered guilty pleas, in all three cases, to
one count of theft by unlawful taking and two counts of criminal trespass;
the remaining charges were nolle prossed. Appellant’s sentencing hearing
was deferred for the completion of a presentence investigation report (PSI).
On July 6, 2016, the court sentenced Appellant to serve consecutive terms
of 4 to 12 months’ incarceration, plus 2 years’ probation, in each of her
three cases. Thus, Appellant’s aggregate sentence totaled 12 to 36 months’
incarceration, followed by 6 years’ probation.
Appellant filed a timely post-sentence motion, which the court denied.
She then filed a timely notice of appeal, and also complied with the trial
court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. The court filed a responsive opinion on September
27, 2016. Herein, Appellant presents two issues for our review:
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1
For a more detailed recitation of the facts in each of Appellant’s three
cases, see Trial Court Opinion (TCO), 9/27/16, at 2-3.
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A. Whether the sentences imposed were unduly excessive and
harsh[?]
B. Whether the sentencing court relied on impermissible factors,
such as the number of victims and on the fact that Appellant
failed to rehabilitate when her relapse was due to being
prescribed by her doctor narcotic pain killers for injuries she
sustained in an automobile accident when imposing sentence[?]
Appellant’s Brief at 4.
Appellant’s two issues are interrelated, and therefore, we will address
them together. Both of her claims challenge the discretionary aspects of her
sentence. It is well-settled that,
[c]hallenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Commonwealth v.
Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). 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. Evans, 901 A.2d 528, 533 (Pa. Super.
2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006).
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. Mann, 820 A.2d 788, 794 (Pa. Super.
2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
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 were either: (1)
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inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the
sentencing process.” Sierra, supra at 912–13.
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).
In this case, Appellant filed a timely notice of appeal. Additionally, our
review of the record demonstrates that she sufficiently preserved her issues
in her timely-filed post-sentence motion, despite the Commonwealth’s
argument to the contrary. We acknowledge that Appellant did not phrase
her claims precisely the same as she does herein. However, she adequately
indicated in the post-sentence motion that she was challenging her sentence
as being excessive, and also claiming that, in fashioning her sentence, the
court erred by relying on the number of victims, and on her failure to
rehabilitate. Accordingly, we conclude that Appellant sufficiently preserved
her sentencing claims before the trial court.
Appellant has also included a Rule 2119(f) statement in her appellate
brief. Therein, she contends that the court erroneously imposed sentences
in the aggravated guideline range, where the circumstances of her case
“were neither so unique nor egregious” as to warrant a deviation from the
standard guideline ranges. Appellant’s Brief at 9. Appellant also claims that
the court improperly relied on “the number of victims … to justify the
departure from the standard range sentence[,]” despite that “she was
sentenced on each individual charge….” Id. We consider Appellant’s
arguments as presenting substantial questions for our review. See
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Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011) (“A claim
that a sentence is manifestly excessive such that it constitutes too severe a
punishment raises a substantial question.”); Commonwealth v. Bowen,
975 A.2d 1120, 1122 (Pa. Super. 2009) (finding a substantial question
raised where the appellant contended that the court relied on an
impermissible factor in imposing an aggravated range sentence) (citation
omitted).
Before addressing the merits of Appellant’s claims, we note that,
[i]n reviewing the decision of the sentencing court, our standard
of review is well-settled:
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.
Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super.
1999) (en banc) (quotations and citations omitted). “A
sentencing court may consider any legal factor in
determining that a sentence in the aggravated range
should be imposed.” Commonwealth v. Stewart, 867 A.2d
589, 592–93 (Pa. Super. 2005) (citing Commonwealth v.
Duffy, 341 Pa. Super. 217, 491 A.2d 230, 233 (1985)). “In
addition, the sentencing judge's statement of reasons on the
record must reflect this consideration, and the sentencing
judge's decision regarding the aggravation of a sentence will not
be disturbed absent a manifest abuse of discretion.” Id. at 593.
Bowen, 975 A.2d at 1122 (emphasis added).
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Here, Appellant complains that the court imposed a manifestly
excessive, aggravated range sentence by relying on two impermissible
factors - the number of victims, and her failure to rehabilitate.2 Notably,
Appellant makes no argument that these were not legal factors for the court
to consider. See id. Rather, she simply contends, without citation to any
authority, that the “court’s focus on the number of victims was in error and
[was] an abuse of discretion since she received separate sentences for each
charge[,]” and that the court completely failed to consider her successful
completion of “treatment court[,]” which contradicts its determination that
she was unable to rehabilitate. Appellant’s Brief at 13.
Appellant’s legally unsupported arguments do not convince us that the
court abused its wide discretion in fashioning her sentence. As the court
explains in its opinion, it
stated on the record the reasons for the [s]entence imposed
upon [Appellant]. The [c]ourt ordered a [p]resentence
[i]nvestigation [r]eport and reviewed it thoroughly. N.T.
Sentencing, July 6, 2016, p. 10. As such, the [c]ourt was aware
of [the] relevant information regarding the character and
background of [Appellant]. Further, both [Appellant] and her
attorney had the opportunity at sentencing to inform this [c]ourt
of additional information they wanted considered. Id. [at] 4-10.
The [c]ourt specifically said that [Appellant] was not being
sentenced for relapsing, she was being sentenced for the crimes
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2
Appellant did not raise, in her Rule 2119(f) statement, her argument that
the court erred by relying on her failure to rehabilitate. However, the
Commonwealth has not specifically objected to this omission and, therefore,
we will not deem Appellant’s claim waived on that basis. See
Commonwealth v. Roser, 914 A.2d 447, 457 (Pa. Super. 2006).
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that she committed whether or not she was on drugs. Id. [at
10.] The [c]ourt considered that there were three separate
victims of Appellant’s crimes. Id. Moreover, the [c]ourt
considered the fact that [Appellant] has a history of stealing
dating back to the 1980s. [Id.] The [c]ourt noted that
[Appellant] has been given rehabilitative opportunities in the
past, but that was not enough to deter [her] conduct. [Id.]
TCO at 10.
The court’s explanation for the sentence it imposed demonstrates that
it did not abuse its discretion. Again, Appellant cites no case law to support
her claim that it was improper for the court to consider the fact that she
victimized three separate individuals. Moreover, the court heard lengthy
discussions by both Appellant and her attorney regarding her history of drug
treatment, which they argued proved that Appellant “could stay clean and
sober.” N.T. Sentencing, 7/6/16, at 5. Notwithstanding these arguments,
the court concluded that Appellant’s continued criminal conduct
demonstrated that “rehabilitation in and of itself has not worked to deter
[her] from future crimes….” Id. at 10. Additionally, the court stressed that
Appellant’s criminal “history shows that [she has] stolen in the past, going
back to 1987 right to 2015.” Id. Ultimately, the court determined that
aggravated range sentences were appropriate based on Appellant’s
victimizing three separate individuals, her continued criminal conduct despite
the opportunities she had been given to rehabilitate herself, and her lengthy
criminal history. Appellant has not convinced us that the court abused its
discretion in this sentencing decision.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/3/2017
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