J-S65005-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSE RODRIGUEZ,
Appellant No. 3508 EDA 2016
Appeal from the Judgment of Sentence July 21, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009966-2011
MC-51-CR-0030479-2011
BEFORE: OLSON, OTT, and MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 19, 2017
Appellant, Jose Rodriguez, appeals from the judgment of sentence
entered on July 21, 2016. We affirm.
At docket number CP-51-CR-009966-2011 (hereinafter “docket
number 9966-2011”), the Commonwealth charged Appellant with crimes
that included possession of marijuana with the intent to deliver (hereinafter
“PWID”) and criminal conspiracy.1 The information alleged that Appellant
committed the charged crimes on May 31, 2011. Commonwealth’s
Information, 9/3/11, at 1.
Appellant entered a negotiated guilty plea to PWID and conspiracy at
docket number 9966-2011 and, on November 3, 2011, the trial court
____________________________________________
1 35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 903, respectively.
J-S65005-17
sentenced Appellant to serve an aggregate term of four years of probation
for his convictions. See Sentencing Order, 11/3/11, at 1.
At docket number CP-51-CR-0014026-2012 (hereinafter “docket
number 14026-2012”), the Commonwealth charged Appellant with crimes
that included possession of heroin with the intent to deliver (hereinafter
“PWID”) and criminal conspiracy.2 The information alleged that Appellant
committed the charged crimes on June 5, 2012. Commonwealth’s
Information, 12/5/12, at 1.
Appellant entered a negotiated guilty plea to PWID and conspiracy at
docket number 14026-2012 and, on January 16, 2013, the trial court
sentenced Appellant to serve an aggregate term of 12 months of
intermediate punishment, followed by two years of probation, for his
convictions at that docket number. See Sentencing Order, 1/16/13, at 1.
Appellant’s convictions at docket number 14026-2012 caused him to
violate the conditions of his probation at docket number 9966-2011. Thus,
following a violation of probation hearing at docket number 9966-2011, the
trial court resentenced Appellant on September 10, 2014, to serve an
aggregate term of five years of probation. See Sentencing Order, 9/10/14,
at 1.
As the trial court explained:
____________________________________________
2 35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 903, respectively.
-2-
J-S65005-17
On May 31, 2015, while [Appellant was on probation at both
of the above docket numbers, Appellant] was arrested for
attempted murder and related charges. On March 8, 2016,
[Appellant] was found guilty of attempted murder and
related charges[ and,] on May 13, 2016, [Appellant] was
sentenced to [serve 12 to 25 years in prison,] followed by
five [] years of probation [for the convictions].
Trial Court Opinion, 3/3/17, at 1 (some internal capitalization omitted).
On July 21, 2016, the trial court held a violation of probation hearing
at docket numbers 9966-2011 and 14026-2012. The trial court found that
Appellant’s attempted murder conviction placed him in direct violation of the
terms of his probation at both docket numbers. N.T. VOP Hearing, 7/21/16,
at 5. The trial court then revoked Appellant’s probation at both docket
numbers and sentenced Appellant to serve a term of five to ten years in
prison at docket number 9966-2011 and to serve a term of five to ten years
in prison at docket number 14026-2012. Id. at 5-6. The trial court ordered
that the terms of imprisonment be served consecutively to one another and
consecutively to the term of imprisonment Appellant received at the docket
number encompassing his attempted murder conviction. Id.
On July 22, 2016, Appellant filed a “Petition to Vacate and Reconsider
VOP Sentence” (hereinafter “Appellant’s Motion to Modify Sentence”) and
listed both docket numbers in the caption. See Appellant’s Motion to Modify
Sentence, 7/22/16, at 1. Within Appellant’s motion to modify, Appellant
requested that the trial court vacate his sentences at docket numbers 9966-
2011 and 14026-2012 because his counsel “had a conflict of interest in this
matter and should not have represented [Appellant] in this matter.” Id. at
-3-
J-S65005-17
1-2. Further, Appellant claimed that his sentences were manifestly
excessive, as they “far surpassed what was required to protect the public,
the complainant or the community, and was well beyond what was
necessary to foster [Appellant’s] rehabilitation.” Id. at 2.
On July 26, 2016, the trial court vacated Appellant’s sentences at
docket numbers 9966-2011 and 14026-2012, appointed new counsel to
represent Appellant, and scheduled a resentencing hearing for a later date.
Trial Court Order, 7/26/16, at 1.
The trial court held the resentencing hearing on October 13, 2016. At
the conclusion of the hearing, the trial court resentenced Appellant to serve
the same terms of incarceration that it originally imposed. N.T.
Resentencing Hearing, 10/13/16, at 8-9. Moreover, the trial court noted on
both dockets that Appellant’s “motion for reconsideration of VOP sentence”
was denied. See Docket Number 9966-2011, at Entry 10/13/16; Docket
Number 14026-2012, at Entry 10/13/16.
On November 12, 2016, Appellant filed timely notices of appeal at both
docket numbers. The current appeal is from Appellant’s judgment of
sentence at docket number 9966-2011.3 Appellant raises two claims in this
appeal:
____________________________________________
3 Appellant’s appeal from the judgment of sentence at docket number
14026-2012 is addressed in a separate memorandum at No. 3650 EDA
2016.
-4-
J-S65005-17
1. Whether the sentencing court abused its discretion by
imposing an aggregate sentence of [ten] to 20 years’
incarceration upon [Appellant] which is manifestly
excessive[?]
2. Whether the sentencing court abused its discretion by not
considering all relevant sentencing by inadequately
dispensing with the PSI and the dictates of Pa.R.Crim.P.
702[?]
Appellant’s Brief at 7.
Appellant’s claims challenge the discretionary aspects of his sentence.
See Commonwealth v. Lee, 876 A.2d 408 (Pa. Super. 2005) (claim that
the trial court erred in imposing an excessive sentence is a challenge to the
discretionary aspects of a sentence); Commonwealth v. Gonzalez-
Dejusus, 994 A.2d 595 (Pa. Super. 2010) (claim that the trial court erred in
imposing consecutive sentences is a challenge to the discretionary aspects of
a sentence); Commonwealth v. Flowers, 950 A.2d 330, 331 (Pa. Super.
2008) (“a claim that the court erred in failing to order a PSI report raises a
discretionary aspect of sentencing” claim).
We note that, in an appeal following the revocation of probation, our
scope of review includes discretionary aspects of sentencing claims.
Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (en
banc). With respect to our standard of review, we have held that
“sentencing is a matter vested in the sound discretion of the sentencing
judge, whose judgment will not be disturbed absent an abuse of discretion.”
Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 2001).
Moreover, pursuant to statute, Appellant does not have an automatic right to
-5-
J-S65005-17
appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A.
§ 9781(b). Instead, Appellant must petition this Court for permission to
appeal the discretionary aspects of his sentence. Id.
As this Court has explained:
[t]o reach the merits of a discretionary sentencing issue, we
conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, Pa.R.A.P. 902,
903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify
sentence, Pa.R.Crim.P. 720 [and 708(E)]; (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. § 9781(b).
Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007); see also
Cartrette, 83 A.3d at 1042 (“issues challenging the discretionary aspects of
a sentence [following the revocation of probation] must be raised in a post-
sentence motion or by presenting the claim to the trial court during the
sentencing proceedings. Absent such efforts, an objection to a discretionary
aspect of a sentence is waived”); Commonwealth v. Kalichak, 943 A.2d
285, 289 (Pa. Super. 2008) (“when a court revokes probation and imposes a
new sentence, a criminal defendant needs to preserve challenges to the
discretionary aspects of that new sentence either by objecting during the
revocation sentencing or by filing a [motion to modify] sentence”).
As our Supreme Court has held, the determination of whether a
substantial question exists must be done prior to – and be divorced from –
the determination of the potential merits of an issue. Commonwealth v.
-6-
J-S65005-17
Tuladziecki, 522 A.2d 17, 19 (Pa. 1987). If it were otherwise, a challenger
would “in effect obtain[] an appeal as of right from the discretionary aspects
of a sentence” – a result that would violate statutory law. Id. Further, as
we have held:
An appellant who seeks to challenge the discretionary
aspects of his or her sentence must provide a separate
statement, pursuant to Rule of Appellate Procedure 2119(f),
specifying where the sentence falls in relation to the
Sentencing Guidelines and what particular provision of the
Sentencing Code has been violated. The 2119(f) statement
must specify what fundamental norm the sentence violates
and the manner in which it violates that norm.
Commonwealth v. Johnson, 873 A.2d 704, 708 (Pa. Super. 2005)
(internal citations omitted); see also Commonwealth v. Zirkle, 107 A.3d
127, 132-134 (Pa. Super. 2014) (“[a]t a minimum, the Rule 2119(f)
statement must articulate what particular provision of the code is violated,
what fundamental norms the sentence violates, and the manner in which it
violates that norm”) (internal quotations and citations omitted).
First, Appellant claims that the trial court abused its discretion by
imposing a manifestly excessive sentence. With respect to this claim,
Appellant’s Rule 2119(f) statement merely declares:
Appellant argues that his sentence is manifestly excessive
such that it constitutes too severe a punishment.
Appellant’s Brief at 13.
On appeal, the Commonwealth objects to Appellant’s Rule 2119(f)
statement and claims that Appellant’s boilerplate allegation fails to satisfy
-7-
J-S65005-17
the minimum requirements of Rule 2119(f). Commonwealth’s Brief at 7-8.
Therefore, the Commonwealth claims that Appellant’s discretionary aspect of
sentencing claim is waived. Id. We agree. See, e.g., Commonwealth v.
Griffin, 149 A.3d 349 (Pa. Super. 2016) (“[i]f the Commonwealth objects to
the appellant's failure to comply with Pa.R.A.P. 2119(f), the sentencing claim
is waived for purposes of review”); Commonwealth v. Karns, 50 A.3d 158,
166 (Pa. Super. 2012) (“[i]f a defendant fails to include an issue in his Rule
2119(f) statement, and the Commonwealth objects, then the issue is waived
and this Court may not review the claim”) (internal quotations and citations
omitted).
Appellant’s boilerplate Rule 2119(f) statement does not satisfy the
minimum requirements of the rule. Zirkle, 107 A.3d at 132-134 (Pa. Super.
2014) (“[a]t a minimum, the Rule 2119(f) statement must articulate what
particular provision of the code is violated, what fundamental norms the
sentence violates, and the manner in which it violates that norm”) (internal
quotations and citations omitted); Commonwealth v. Mouzon, 812 A.2d
617, 627 (Pa. 2002) (“[i]f an appellant . . . complies with all statutory and
procedural requirements regarding a challenge to the discretionary aspects
of sentencing, and articulates in his Rule 2119(f) statement a substantial
question so as to warrant appellate review, § 9781 requires the Superior
Court to review the manner in which the trial court exercised its discretion.
This does not mean, however, that the Superior Court must accept
bald allegations of excessiveness. Rather, only where the
-8-
J-S65005-17
appellant's Rule 2119(f) statement sufficiently articulates the
manner in which the sentence violates either a specific provision of
the sentencing scheme set forth in the Sentencing Code or a
particular fundamental norm underlying the sentencing process, will
such a statement be deemed adequate to raise a substantial
question so as to permit a grant of allowance of appeal of the
discretionary aspects of the sentence”) (emphasis added). To be sure,
since Appellant’s Rule 2119(f) statement consists of mere boilerplate, the
only way this Court could possibly determine whether Appellant has raised a
substantial claim on appeal is to review the argument section of Appellant’s
brief. Yet, as our Supreme Court has held:
[the] Superior Court [is] not . . . permitted to rely on its
assessment of the argument on the merits of the
[discretionary aspects] issue to justify post hoc a
determination that a substantial question exists. If this
determination is not made prior to examination of and
ruling on the merits of the issue of the appropriateness of
the sentence, the [challenger] has in effect obtained an
appeal as of right from the discretionary aspects of a
sentence. It is elementary that such an enlargement of the
appeal rights of a party cannot be accomplished by rule of
court. For this reason it is essential that the rules of
procedure governing appeals such as this be followed
precisely.
Tuladziecki, 522 A.2d at 19.
Therefore, in this case, since Appellant has failed to comply with the
minimum requirements of Rule 2119(f) and since the Commonwealth has
-9-
J-S65005-17
objected to Appellant’s failure, we must conclude that Appellant has waived
his first claim on appeal.
For Appellant’s second claim on appeal, Appellant contends that the
trial court abused its discretion at sentencing by failing to order a pre-
sentence investigation report. Appellant’s Brief at 15-17. This claim is
waived, as Appellant did not raise the claim in his motion to modify
sentence. Appellant’s Motion to Modify Sentence, 7/22/16, at 1-2;
Cartrette, 83 A.3d at 1042; Kalichak, 943 A.2d at 289.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/19/2017
- 10 -