Com. v. Cavada, D. ( 2015 )

J-S28035-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DESTRY ARYN CAVADA
Appellant No. 1934 MDA 2014
Appeal from the Judgment of Sentence September 24, 2014
In the Court of Common Pleas of Union County
Criminal Division at No(s): CP-60-CR-0000101-2014
*****
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DESTRY ARYN CAVADA
Appellant No. 1935 MDA 2014
Appeal from the Judgment of Sentence September 24, 2014
In the Court of Common Pleas of Union County
Criminal Division at No(s): CP-60-CR-0000102-2014
*****
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DESTRY ARYN CAVADA
Appellant No. 1936 MDA 2014
J-S28035-15
Appeal from the Judgment of Sentence September 4, 2014
In the Court of Common Pleas of Union County
Criminal Division at No(s): CP-60-CR-0000108-2014
BEFORE: BOWES, J., ALLEN, J., and LAZARUS, J.
MEMORANDUM BY LAZARUS, J.: FILED JULY 10, 2015
Destry Aryn Cavada appeals from his judgment of sentence of 1 to 10
years’ incarceration imposed by the Court of Common Pleas of Union County.
Cavada entered an open guilty plea to three separate counts of retail theft. 1
The court sentenced him to two consecutive terms of imprisonment of 6
months to 5 years on two counts. The court also sentenced Cavada on the
remaining count to an additional concurrent term of imprisonment of 6
months to 5 years. On appeal, Cavada claims the court erred in sentencing
him to a consecutive term on one of the retail theft convictions. Upon
review, we affirm Cavada’s judgment of sentence.
The trial court set forth the factual and procedural history of these
cases as follows:
On April 29, 2014, the Commonwealth filed three separate
[Informations] against [Cavada], one to each of the above
captioned cases. Each information was a one count Information
charging [Cavada] with the crime of retail theft, a misdemeanor
in the first degree. On July 16, 2014, [Cavada] entered guilty
pleas to the one count [Informations]. The Plea Agreement as
indicated on the colloquy indicated that the Commonwealth did
not object to concurrent sentences but that the aggregate
sentences should be consecutive to any other sentences
____________________________________________
1
18 Pa.C.S. § 3929(a)(1).
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[Cavada] has been serving at the time. There was no
agreement that the sentences be concurrent or consecutive
however. At the guilty plea hearing, the Court confirmed that
[Cavada] understood his plea agreement . . . The aggregate
sentence to which [Cavada] was sentenced was twelve months
to ten years with a Recidivism Risk Reduction Incentive (RRRI)
sentence of nine months. Two of the sentences were
consecutive to each other and one was concurrent to the other
sentences.
Trial Court Opinion, 1/2/15, at 1-2.
Cavada filed a timely post-sentence motion requesting the trial court
modify the sentence and make all the sentences concurrent with each other.
The trial court denied the petition. Specifically, the court indicated that the
sentences were consistent with the plea agreement, that they were in the
standard-range of the Sentencing Guidelines and that Cavada was not
amenable to county supervision in that his county parole on other crimes
had previously been revoked on five different occasions. Id. at 2.
As indicated in Cavada’s Pre-Sentence Investigation report (PSI), he
has had an almost uninterrupted period of criminal behavior for over nine
years. Cavada’s offenses indicated substance abuse issues, crimes of
dishonesty, and felonies.2 Additionally, Cavada’s PSI shows a pattern of
disregard of conditions of court orders and conditions of parole and
probation supervision. See Pre-Sentence Investigation Report, at 3-7.
____________________________________________
2
Felonies include criminal trespass, burglary, manufacturing with intent to
deliver a controlled substance (two counts), criminal use of a facility, and
robbery.
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Cavada’s allegation that his sentence was excessive due to it being
consecutive is a challenge to the discretionary aspect of his sentence, which
is not appealable as of right. Rather, an appellant challenging the
sentencing court’s discretion must invoke the Court’s jurisdiction by
satisfying a four-part test. Commonwealth v. Prisk, 13 A.3d 526 (Pa.
Super. 2011).
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. § 9781(b).
Id. at 532, citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006).
Judicial review of the discretionary aspects of a sentence is granted
only upon a showing that there is a substantial question that the sentence
was inappropriate and contrary to the fundamental norms underlying the
Sentencing Code. Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa.
1987). A substantial question exists “only when the appellant advances a
colorable argument that the sentencing judge’s actions were either: (1)
inconsistent with a specific provision in the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.”
Commonwealth v. Brown, 741 A.2d 726, 735 (Pa. Super. 1999) (en
banc). This argument addresses the discretionary aspects of sentence. See
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Commonwealth v. McKiel, 629 A.2d 1012 (Pa. Super. 1993) (stating that
sentence is manifestly excessive challenges sentencing court's discretion).
Cavada does not contend that his sentence exceeds the statutory
limits. It is the fact that his sentence is to run consecutively to the others
imposed for non-violent theft offenses that, in Cavada’s view, makes the
sentence excessive. Cavada asserts that the sentences imposed result only
in a delay of much needed treatment, and that such treatment would likely
had been accelerated had he received totally concurrent county sentences.
See Appellant’s brief at 13.
It is well established that a sentencing court’s failure to consider
mitigating factors raises a substantial question. See Commonwealth v.
Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003). However, a sentencing
court generally has discretion to impose multiple sentences concurrently or
consecutively, and a challenge to the exercise of that discretion does not
ordinarily raise a substantial question. Commonwealth v. Pass, 314 A.2d
442, 446-47 (Pa. Super. 2006).
We are mindful, however, that “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). An
appellant making an excessiveness claim raises a substantial question when
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he “sufficiently articulates the manner in which the sentence violates either a
specific provision of the sentencing scheme set forth in the Sentencing Code
or particular fundamental norm underlying the sentencing process.”
Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002). Applying
Mouzon, this Court has held that an excessive sentence claim, in
conjunction with an assertion that the court failed to consider mitigating
factors, raises a substantial question. Commonwealth v. Perry, 883 A.2d
599, 602 (Pa. Super. 2005). Because we interpret Cavada’s arguments as
raising substantial questions under both Felmlee and Mastromarino, we
grant Cavada’s petition for allowance of appeal and consider the merits of
his claim.
Our standard of review in this context is as follows:
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.
Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).
Additionally, our review of the discretionary aspects of a
sentence is confined by the statutory mandates of 42 Pa.C.S.
§§9781(c) and (d). Subsection 9781(c) provides:
The appellate court shall vacate the sentence and remand the
case to the sentencing court with instructions if it finds:
(1) The sentencing court purported to sentence within the
sentencing guidelines erroneously;
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(2) The sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly
unreasonable; or
(3) The sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable. In all other
cases the appellate court shall affirm the sentence imposed
by the sentencing court.
42 Pa.C.S. § 9781 (c).
In reviewing the record, we consider:
(1) The nature and circumstances of the offense and the
history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).
Commonwealth v. Raven, 97 A.3d 1253-55 (Pa. Super. 2014).
Instantly, Cavada’s sentence falls within the strictures of our
sentencing guidelines. He, therefore, must demonstrate that the application
of those guidelines would be clearly unreasonable. 42 Pa.C.S. § 9781(c)(2).
Cavada submits that the sentencing court did not weigh the nature and
circumstances of his crimes, or his mitigating history and characteristics. To
this end, Cavada argues that the sentencing court disregarded his need for
drug treatment therapy, as well as the non-violent nature of his crimes.
Here, Cavada has failed to articulate why imposing a consecutive
sentence for his offenses is unduly harsh beyond his own preference for drug
treatment and insistence that because his offenses were non-violent, he
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should have received a concurrent sentence. We see no reason why Cavada
should be afforded a “volume discount” for his crimes by having all
sentences run concurrently. Commonwealth v. Anderson, 650 A.2d 20,
22 (Pa. 1994) (raising concern that defendants not be given “volume
discounts” for multiple criminal acts that arose out of one larger criminal
transaction).
Despite Cavada’s assertions to the contrary, the sentencing court was
unquestionably aware of his background and rehabilitative needs. The court
stated:
I agree with you, Mr. Cavada, you need help; but it’s help
beyond which Union County can provide to you. You have
demonstrated you are not amenable to county supervision by
multiple revocations and continuing a pattern of criminal
behavior since 2005. Hopefully, with the state programming,
you can get the assistance you need. [Although] he hasn’t been
convicted of the delivery of drugs or the robbery, given that
those are pending, and his prior record of corruption of minors,
criminal trespass, burglary, alcohol offenses, and drug offenses,
this is something that’s more appropriate for a state programing.
Sentencing Hearing, 11/19/14, at 5-7.
Based upon all of this evidence, the court imposed a consecutive
standard-range sentence for one of the offenses. The gist of Cavada’s
argument is not that the court failed to consider the pertinent sentencing
factors, but rather that the court weighed those factors in a manner
inconsistent with his wishes. Accordingly, we conclude that the record
supports the sentencing court’s reasoning and we find no abuse of
discretion. The sentence imposed for each of Cavada’s offenses was within
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the standard range of the sentencing guidelines, and the record reflects that
the court carefully considered all the evidence presented at the sentencing
hearing. As such, we discern no abuse of discretion, nor can we conclude
that the sentencing court arrived at a manifestly unreasonable decision.
See Shugars, 895 A.2d at 1275.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/2015
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