Opinion
J-S48040-14 No. 350 MDA 2014
08-19-2014
COMMONWEALTH OF PENNSYLVANIA, Appellee v. HECTOR D. VELEZ, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence April 29, 2013 in the Court of Common Pleas of Lancaster County
Criminal Division at No.: CP-36-CR-0000145-2012
BEFORE: DONOHUE, J., JENKINS, J., and PLATT, J. MEMORANDUM BY PLATT, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Hector D. Velez, appeals nunc pro tunc from the judgment of sentence entered following his open guilty plea to six counts of possession with intent to deliver (PWID), one count of criminal conspiracy, and one count of criminal use of a communication facility. On appeal, Appellant challenges the discretionary aspects of his sentence. For the reasons discussed below, we affirm the judgment of sentence.
35 P.S. § 780-113(a)(30).
18 Pa.C.S.A. § 903.
18 Pa.C.S.A. § 7512(a).
On six different occasions, between August 3, 2011 and January 10, 2012, Appellant delivered drugs to another person. ( See N.T. Guilty Plea, 3/26/13, at 4). These deliveries took place in a school zone. ( See id. at 3).
On March 26, 2013, Appellant entered an open guilty plea to the aforementioned charges. On April 29, 2013, following the receipt of a pre-sentence investigation (PSI) report, the sentencing court sentenced Appellant to an aggregate term of not less than eight nor more than twenty years of incarceration. ( See N.T. Sentencing, 4/29/13, at 2, 11-12). Appellant filed a timely post-sentence motion seeking modification of his sentence, which the sentencing court denied on May 6, 2013. Appellant did not file a direct appeal.
Five of the six PWID counts carried a mandatory minimum sentence for drug trafficking pursuant to 18 Pa.C.S.A. § 7508; further, all six PWID counts occurred within a Drug Free School Zone as set forth in 18 Pa.C.S.A. § 6317(a). In addition, Appellant had a prior conviction for drug trafficking. Therefore, four of the PWID counts carried a five-year mandatory minimum sentence and one carried a three-year mandatory minimum sentence. The sentencing court ran all the sentences concurrently with the exception of count three, which Appellant was to serve consecutively to count one.
On July 29, 2013, Appellant filed a petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, seeking reinstatement of his direct appeal rights. Following a hearing, the PCRA court reinstated Appellant's direct appeal rights on February 12, 2014. Appellant filed the instant, timely appeal.
Pursuant to the trial court's order, Appellant filed a timely concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) on March 5, 2014. On April 14, 2014, the trial court filed an opinion pursuant to Pa.R.A.P. 1925(a). See Pa.R.A.P. 1925.
On appeal, Appellant raises the following question for our review:
Whether the imposition of consecutive sentences resulting in an aggregate sentence of not less than eight nor more than [twenty] years was so manifestly excessive as to constitute an abuse of discretion?(Appellant's Brief, at 5).
On appeal, Appellant claims that the sentencing court abused its discretion when it sentenced Appellant to a consecutive term of incarceration because it did not consider mitigating factors. ( See id. at 12-13). Appellant further avers that the consecutive sentence was "manifestly excessive." ( Id. at 5).
Appellant challenges the discretionary aspects of his sentence on appeal. The right to appeal the discretionary aspects of a sentence is not absolute. See Commonwealth v. McAfee , 849 A.2d 270, 274 (Pa. Super. 2004), appeal denied, 860 A.2d 122 (Pa. 2004). When an appellant challenges the discretionary aspects of the sentence imposed, he must present "a substantial question as to the appropriateness of the sentence[.]" Commonwealth v. Anderson , 830 A.2d 1013, 1017 (Pa. Super. 2003) (citations omitted). An appellant must, pursuant to Pennsylvania Rule of Appellate Procedure 2119(f), articulate "a colorable argument that the sentence violates a particular provision of the Sentencing Code or is contrary to the fundamental norms underlying the sentencing scheme." Commonwealth v. Kimbrough , 872 A.2d 1244, 1263 (Pa. Super. 2005) (en banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation omitted). If an appellant's Rule 2119(f) statement meets these prerequisites, we determine whether a substantial question exists. See Commonwealth v. Goggins , 748 A.2d 721, 727 (Pa. Super. 2000) (en banc), appeal denied, 759 A.2d 920 (Pa. 2000). "Our inquiry must focus on the reasons for which the appeal is sought, in contrast to the facts underlying the appeal, which are necessary only to decide the appeal on the merits." Id. (emphases in original).
We note that Appellant preserved his discretionary aspects of sentence claim by filing a timely post-sentence motion for reconsideration of sentence. See McAfee, infra at 275.
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Here, Appellant has included a Rule 2119(f) statement in his brief. ( See Appellant's Brief, at 11-14). Appellant argues that the sentence was manifestly excessive and unreasonable because the sentencing court: (1) failed to consider mitigating circumstances; and (2) imposed a consecutive sentence. ( See id.).
Appellant claims that the sentencing court failed to consider mitigating factors such as the length of time since his prior offenses, his extensive work history, and family care. ( See id. at 13). It is well settled that a claim "that a sentencing court failed to consider or did not adequately consider certain factors does not raise a substantial question that the sentence was inappropriate." Commonwealth v. Johnson , 961 A.2d 877, 880 (Pa. Super. 2008), appeal denied, 968 A.2d 1280 (Pa. 2009) (citation omitted). Further, "[w]here the sentencing court had the benefit of a presentence investigation report ('PSI'), we can assume the sentencing court was aware of relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors." Commonwealth v. Griffin , 65 A.3d 932, 937 (Pa. Super. 2013), appeal denied, 76 A.3d 538 (Pa. 2013) (quotation marks and citations omitted). Thus, Appellant's claim that the sentencing court abused its discretion by failing to consider mitigating factors does not present a substantial question. Accordingly, we decline to review this issue.
Appellant also claims that the sentencing court unreasonably imposed a consecutive sentence. ( See Appellant's Brief, at 13-14). Pennsylvania law "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. Pass , 914 A.2d 442, 446-47 (Pa. Super. 2006) (citation omitted); see also Commonwealth v. Hoag , 665 A.2d 1212, 1214 (Pa. Super. 1995) (holding that appellant is not entitled to "volume discount" by having sentences run concurrently). But see Commonwealth v. Dodge , 957 A.2d 1198 (Pa. Super. 2008), appeal denied, 980 A.2d 605 (Pa. 2009) (imposition of standard range sentences consecutively on thirty-seven counts of theft-related offenses for aggregate sentence of 58 ½ to 124 years' imprisonment constituted virtual life sentence and, thus, was so manifestly excessive as to raise a substantial question). "Thus, in our view, the key to resolving the preliminary substantial question inquiry is whether the decision to sentence consecutively raises the aggregate sentence to, what appears upon its face to be, an excessive level in light of the criminal conduct at issue in the case." Commonwealth v. Mastromarino , 2 A.3d 581, 587 (Pa. Super. 2010), appeal denied, 14 A.3d 825 (Pa. 2011). Here, Appellant makes no showing or claim that his case is similar to the virtual life sentence at issue in Dodge. Because he has not done so, his claim that the trial court unreasonably imposed a consecutive sentence does not raise a substantial question.
Judgment of sentence affirmed. Jurisdiction relinquished. Judgment Entered. /s/_______
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/2014