Com. v. Cruz-Figueroa, S. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SAUL JAVIER CRUZ-FIGUEROA :
:
Appellant : No. 852 MDA 2018
Appeal from the Judgment of Sentence April 27, 2018
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0007176-2010,
CP-67-CR-0007179-2010
BEFORE: LAZARUS, J., MURRAY, J., and STRASSBURGER*, J.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 16, 2019
Saul Javier Cruz-Figueroa appeals1 from the judgment of sentence,
entered in the Court of Common Pleas of York County, after he pled guilty to
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1 Cruz-Figueroa filed one notice of appeal from the two separate trial court
docket numbers. The Official Note to Pa.R.A.P. 341 states that “[w]here . . .
one or more orders resolves issues arising on more than one docket or relating
to more than one judgment, separate notices of appeals must be filed.”
Pa.R.A.P. 341, Official Note. In Commonwealth v. Walker, 185 A.3d 969(Pa. 2018), our Supreme Court recently held:
[I]n future cases [Pa.R.A.P.] 341(a) will, in accordance with its
Official Note, require that when a single order resolves issues
arising on more than one lower court docket, separate notices of
appeal must be filed. The failure to do so will result in quashal of
the appeal.
Id. at 977 (emphasis added). The Walker decision was held to apply
prospectively to cases. Because Walker was decided on June 1, 2018 and
the current appeal was filed on May 23, 2018, the Walker holding does not
apply to this case. Thus, we decline to quash the appeal.
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* Retired Senior Judge assigned to the Superior Court.
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two drug offenses in 2011. After careful review, we affirm the convictions,
vacate the judgment of sentence, and remand for resentencing.
On April 6, 2011, Cruz-Figueroa entered an open guilty plea in two
separate cases2 to one count of possession with intent to deliver heroin (Count
1)3 and one count of possession with intent to deliver cocaine (Count 2).4
Cruz-Figueroa was admitted to the York County Drug Treatment Court
Program and sentencing was deferred until Cruz-Figueroa either successfully
completed the program or was removed from drug treatment court.5 While in
drug treatment, Cruz-Figueroa absconded from the program6 and remained
at large.7 On May 9, 2011, the court revoked Cruz-Figueroa’s bail and issued
a bench warrant for his arrest.8 In January 2018, Cruz-Figueroa was
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2 Count 1 (No. 7176 of 2010); Count 2 (No. 7179 of 2010).
3 35 P.S. § 780-113(a)(30).
4 35 P.S. § 780-113(a)(30).
5 The order admitting Cruz-Figueroa into drug court states that “upon
successful completion of Drug Court, all felonies become misdemeanors and
all misdemeanor are dismissed.” Order, 4/5/11, at 7.
6 Testimony at sentencing indicates that Cruz-Figueroa walked out of the drug
program because he was afraid that he would “test dirty.” N.T.
Plea/Sentencing, 3/27/18, at 4, 10-11.
7 The commission of these crimes violated Cruz-Figueroa’s probation sentence
in a prior, unrelated case.
8 Consistent with drug treatment court policy, Cruz-Figueroa was discharged
from the program one year after absconding, on May 31, 2012.
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apprehended9 and extradited to Pennsylvania for sentencing. On March 27,
2018, after considering a pre-sentence investigation (PSI) report, the trial
court sentenced10 Cruz-Figueroa to 10-20 years’ incarceration on Count 1, and
a consecutive term of 5-10 years of incarceration on Count 2.11 Cruz-Figueroa
filed a timely motion for reconsideration that the court denied on April 27,
2018 after a hearing.12 The court granted Cruz-Figueroa in forma pauperis
(IFP) status on May 23, 2018; counsel filed a timely notice of appeal from
Cruz-Figueroa’s judgment of sentence on the same date. Cruz-Figueroa filed
a court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of
on appeal. He presents the following issue for our consideration:
Did the sentencing court abuse its discretion in imposing
aggravated–range terms of incarceration due to Saul Cruz-
Figueroa's prior convictions and the dangers of heroin, where the
prior convictions are already accounted for in Cruz-Figueroa's
prior record score and the dangers of heroin are contemplated in
any delivery of heroin conviction?
Appellant’s Brief, at 4.
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9The trial court intimates that Cruz-Figueroa was apprehended in Puerto Rico,
although there is nothing in the record to confirm that fact.
10 Both the defense and the prosecution recommended a standard-range
sentence for Cruz-Figueroa. N.T. Plea/Sentencing, 3/27/18, at 5-6.
11 Cruz-Figueroa also received 246 days of credit for time served.
12 On May 4, 2018, Cruz-Figueroa filed a pro se notice of appeal which the
trial court clerk of courts forwarded to his attorney of record. See
Pa.R.Crim.P. 576(A)(4).
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Cruz-Figueroa raises a discretionary aspects of sentence claim on
appeal, arguing that the trial court based his sentence on improper factors.
Specifically, he asserts that the court considered prior convictions that had
already been accounted for in the standard-range of the guidelines.
Additionally, he claims that the court impermissibly factored in “the toll that
heroin has taken on society” to justify a lengthier sentence. Appellant’s Brief,
at 14.
When the discretionary aspects of a sentence are questioned, an appeal
is not guaranteed as of right. Commonwealth v. Moore, 617 A.2d 8, 11
(Pa. Super. 1992). Rather, an appellant challenging the discretionary aspects
of his sentence must invoke our Court’s jurisdiction by satisfying the following
four-part test: (1) the appellant must file a timely notice of appeal, pursuant
to Pa.R.A.P. 902 and 903; (2) the issue must have been properly preserved
at sentencing or in a motion to reconsider and modify sentence, pursuant to
Pa.R.Crim.P. 720; (3) the appellant’s brief must comply with Pa.R.A.P.
2119(f); and (4) the appellant must present a substantial question that the
sentence appealed from is not appropriate under the Sentencing Code, 42
Pa.C.S. § 9781(b). Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.
Super. 2010). An appellate court will find a “substantial question” and review
the decision of the trial court only where an aggrieved party can articulate
clear reasons why the sentence imposed by the trial court compromises the
sentencing scheme as a whole. Commonwealth v. Tuladziecki, 522 A.2d
17 (Pa. 1987).
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First, we note that Cruz-Figueroa filed a timely notice of appeal and
preserved his discretionary aspect of sentencing claim by raising it in a timely
post-sentence motion to reconsider his sentence. Next, Cruz-Figueroa has
complied with Rule 2119(f). Finally, he has presented a substantial question.
Commonwealth v. Tirado, 870 A.2d 362 (Pa. Super. 2005) (claim that
sentencing court has “considered factors already included in the guidelines”
raises substantial question).
Here, the trial court’s sentence was well outside the guidelines. We note
that in cases where a court imposes a sentence outside of the sentencing
guidelines, the court must provide, in open court, a contemporaneous
statement of reasons in support of its sentence. See 42 Pa.C.S.A. § 9721(b).
[A sentencing] judge . . . [must] demonstrate on the record, as a
proper starting point, its awareness of the sentencing guidelines.
Having done so, the sentencing court may deviate from the
guidelines, if necessary, to fashion a sentence which takes into
account the protection of the public, the rehabilitative needs of
the defendant, and the gravity of the particular offense as it
relates to the impact on the life of the victim and the community,
so long as it also states of record the factual basis and specific
reasons which compelled it to deviate from the guideline range.
Commonwealth v. Bowen, 55 A.3d 1254, 1264 (Pa. Super. 2012) (citation
and brackets omitted). An appellate court must vacate and remand a case
where it concludes that “the sentencing court sentenced outside the
sentencing guidelines and the sentence is unreasonable.” 42 Pa.C.S. §
9781(c)(3). However, “if the sentencing court proffers reasons indicating that
its decision to depart from the guidelines is not unreasonable, the sentence
will be upheld.” Commonwealth v. Smith, 863 A.2d 1172, 1177-78 (Pa.
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Super. 2004). See Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007)
(noting difficulty of defining inquiry into reasonableness of sentence).
At sentencing the court made the following statement about Cruz-
Figueroa’s drug history to support its upward departure:
[T]he defendant has a serious drug problem. What it reflects is
he’s been given the opportunity for rehabilitation which he has
refused.
He’s, in fact, walked out on the drug treatment program which is
a highly intensive program that affords him the opportunity to turn
his life around if he so choses. That program focused on
treatment, not on punishment and incarceration. And he refused
that rehabilitative treatment and walked out.
* * *
[T]he defendant chose to throw all of that away in favor of
continuing to engage in criminal conduct and to be a drug user.
The Defendant is not being sentenced here today for being a drug
user. He’s being sentenced for being a drug dealer because the
Defendant chooses to deal drugs to support his habit.
So the [c]ourt doesn’t see anything based on this record that
would suggest that a sentence focusing upon getting the
Defendant additional treatment at this point makes any sense
because he’s not ready for treatment. He doesn’t want treatment.
He wants to keep using drugs, and he wants to keep dealing drugs
to support his habit.
The drugs he’s dealing include heroin. Heroin is a deadly drug. It
is killing people across this country, across the Commonwealth,
and across the United States. Defendant, in supporting his drug
habit, is a threat to society. He is part of the economy that is
putting these drugs on the street.
The [c]ourt does not really care whether a person is selling heroin
for profit or to support their own habit. The recipients of that drug
are just as addicted either way. The recipients of that drug are
going to potentially die whether the person is selling it for profit
or selling it to support their own habit.
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So all of these factors have been considered by the [c]ourt
in this matter. The fact that these are the fourth and fifth
PWID-related charges that the Defendant has accrued
warrant sentencing him in the aggravated range. The fact
that they are the fourth and fifth is contained in the offense
gravity score, but that’s not the entire ball of wax as it
were.
What it reflects is a lack of rehabilitative potential which is not
captured in the offense gravity score. It reflects that he’s a danger
to society which is not captured in the offense gravity score. It
reflects that because he keeps doing the same offense over and
over again and rejects rehabilitative efforts, that he’s going to
continue to put others at risk and continue to commit this crime
as long as he’s out on the streets. The solution to that is
unfortunately to keep him from being out on the streets.
N.T. Plea/Sentencing, 3/27/18, at 11-14 (emphasis added).
According to the Sentencing Commission, factors that are already used
in the Guidelines’ computations, including, inter alia, prior convictions, may
not be used to justify an aggravated sentence. Commonwealth v. Johnson,
758 A.2d 1214, 1219 (Pa. Super. 2000). “By logical extension, this same type
of conviction cannot serve as the basis for imposing an even greater sentence,
the statutory maximum.” Commonwealth v. Whitmore, 860 A.2d 1032,
1038 (Pa. Super. 2004), rev’d in part on other grounds, 912 A.2d 827 (Pa.
2006). Simply put, a sentencing court may not “double count” factors already
taken into account in the sentencing guidelines.
In its Rule 1925(a) opinion, the trial court explains that in fashioning its
sentence:
[t]he Court considered the fact that [Cruz-Figueroa] was a repeat
offender in dealing or attempting to deal drugs in sentencing
[him] in the aggravated range, as repeating the same crime,
and thereby revealing a lack of rehabilitative potential[.] The
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aggravating factor was not [Cruz-Figueroa’s] general prior record
score. The aggravating factor(s) were that in committing the
same crime repeatedly, [Cruz-Figueroa] showed lack of remorse
regarding that particular crime, and further demonstrated lack of
rehabilitative potential in regard to being a drug dealer.
Trial Court Opinion, 4/15/19, at 3-4 (emphasis added). See also N.T.
Plea/Sentencing, 3/27/18, at 13 (“The fact that these are fourth and fifth
PWID-related charges that the Defendant has accrued warrant sentencing in
the aggravated range.”) (emphasis added). The sentencing court also
noted that the instant offenses were Cruz-Figueroa’s fourth and fifth PWID-
related charges,13 demonstrating to the court that Cruz-Figueroa “had not
reformed his behavior after his prior convictions nor [did he] possess[] any
level of remorse.” Id. at 4. At the sentencing reconsideration hearing the
court further stated, “when you have the same individual committing a
number of different PWIDs or even attempts to PWID, which we do have in
this case . . . [, t]hen I don’t think it’s appropriate for the [c]ourt to not just
look at the offense gravity score and for the [c]ourt to say, ‘What is the
rehabilitative potential of this individual in regard to the offense of drug
dealing and the threat that it poses to society?’” N.T. Sentencing
Reconsideration Hearing, 4/27/18, at 16.
The Sentencing Guideline’s offense gravity scores (OGS) pertain to the
seriousness of the offense and are codified at 204 Pa. Code § 303.15. The
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13 In actuality, the offenses were Cruz-Figueroa’s third and fourth PWID
convictions; the other PWID offenses the court improperly counted were nolle
prossed or classified as criminal attempt.
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Sentencing Guidelines consider both the prior record score (PRS), which
relates to the criminal history of the offender, and the OGS. See 204 Pa. Code
§ 303.9(a)(1). Here, pursuant to the 6th edition (revised)14 of the
Pennsylvania Sentencing Guidelines, Cruz-Figueroa’s prior crimes registered
as a PRS of 3 and his instant convictions registered as an OGS of 6. Under
the guideline matrix, a standard-range sentence for a crime with a PRS of 3
and an OGS of 6 is 12-18 months of incarceration (+/- 6 months). Thus, an
aggravated-range sentence would be any sentence where the minimum term
of incarceration is 18-24 months.15 Here, Cruz-Figueroa’s minimum term of
incarceration is 180 months, well outside the aggravated-range of the
guidelines.
Where the trial court deviates substantially from the sentencing
guideline range, it is especially important that the court consider all factors
relevant to the determination of a proper sentence. Commonwealth v.
Messmer, 863 A.2d 567, 573 (Pa. Super. 2004). Factors justifying an upward
departure, however, may not include those already taken into account in the
guideline calculations. Id. Moreover, a reviewing court should not reweigh
the proper sentencing factors considered by the trial court and impose its own
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14 The 6th edition (revised) applies to all sentences imposed for felonies and
misdemeanor offenses committed on or after December 5, 2008. Here, the
bills of information indicate that Cruz-Figueroa’s crimes were committed on or
about October 12, 2010 (No. 7176) and October 28, 2010 (No. 7179).
15All numbers in sentence recommendations suggest months of minimum
confinement. See 204 Pa. Code § 303.9(2)(e).
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judgment in the place of the trial court. Commonwealth v. Peck, 202 A.3d
739, 747 (Pa. Super. 2019).
We are cognizant of the fact that the trial court considered a PSI before
imposing Cruz-Figueroa’s sentence. See Commonwealth v. Ventura, 975
A.2d 1128, 1135 (Pa. Super. 2009) (where sentencing court is informed by
PSI, it is presumed that court is aware of all appropriate sentencing factors
and considerations, including sentencing guidelines, and “where the court has
been so informed, its discretion should not be disturbed.”). However, even
though the court considered a PSI and also orally recited the guideline ranges
for the instant offenses, we are not convinced that the court acted on a sound
understanding of the sentencing guidelines or of Cruz-Figueroa’s prior criminal
history.
Instantly, the trial judge stated that he was sentencing Cruz-Figueroa
in the aggravated range of the guidelines, see N.T. Plea/Sentencing, 3/27/18,
at 14; Trial Court Opinion, 4/15/19, at 3, but Cruz-Figueroa’s actual sentence
is seven-and-one-half times that of an aggravated-range sentence and outside
the guidelines.16 Moreover, at the sentencing reconsideration hearing, the
trial judge asked the public defender if at sentencing he improperly
“reference[d] that [Cruz-Figueroa] had pled guilty to two PWIDs in . . . 2008,”
N.T. Sentencing Reconsideration, 4/27/18, at 13, and then later, without
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16In fact, his PWID (heroin) sentence exceeds the statutory maximum before
the proper application of any enhancement. See 35 P.S. § 780-113(f)(1).
See infra at 11.
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rereading the notes from sentencing or having his recollection refreshed by
counsel, the judge states that he wanted “to make clear for the record that
any offenses where the Defendant has no disposition or [were] nolle prossed,
that is not being held against him in any way in this sentence.” Id. at 15. In
fact, according to Cruz-Figueroa’s PSI, he has only two prior PWID convictions
-- both stemming from the same incident in June 2009. See supra at n.13.
We are compelled to sua sponte raise an issue regarding the legality of
the court’s imposition of a 10-20 year sentence for PWID (heroin). See
Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013) (stating
that this Court may raise issue implicating legality of sentence sua sponte).
At the reconsideration hearing, Cruz-Figueroa argued that his PWID-heroin
sentence exceeded the statutory maximum, noting that under 35 P.S. § 780-
113(f)(1) his offense is punishable by “imprisonment not exceeding fifteen
years.” Motion for Reconsideration of Sentence, 4/5/18, at ¶ 6. However, at
the same hearing, the prosecutor and the trial judge indicated that at the time
of sentencing the defense was provided with “a copy of the guidelines that
does in fact show [an] enhanced penalty [under section 780-115].” N.T.
Sentencing Reconsideration Hearing, 4/27/18, at 8. The prosecutor then
proceeded to state:
So I would submit - - I would like to submit Exhibit 1 for the
purpose of the record. That is just the guidelines in this case that
do set forth the maximums, and then the Commonwealth’s Exhibit
2 is the [PSI], which was referenced by the Commonwealth, by
the Defense, and by the Court during the sentencing proceeding,
and I would like to have that made part of a record.
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Id. at 9. The court accepted the documents into evidence and Assistant Public
Defender McNeil indicated that he was not contesting the fact that “it’s a
second or subsequent offense” under section 780-115.” Id. at 10.
Section 780-115, a recidivist statute for drug offenders, permits a trial
court to impose a sentence of up to twice the term otherwise authorized for a
second or subsequent conviction under 35 P.S. § 780-113(a)(30). See 35
P.S. § 780-115(a). “The terms of this provision expressly empower the trial
court to double the maximum . . . sentence for a second or subsequent drug
conviction.” Commonwealth v. Young, 922 A.2d 913, 917-18 (Pa. Super
2007). The court and the Commonwealth’s insistence that Cruz-Figueroa had
been sentenced pursuant to the statutory enhancement found in section 780-
115 is troubling. There is absolutely no mention of this enhancement either
in the parties’ plea agreement, during the plea proceedings, at sentencing, or
in the court’s sentencing order. In fact, the first time this enhancement is
formally placed on the record is when it is entered as a Commonwealth exhibit
at the sentencing reconsideration hearing. See Exhibit C-1, Pennsylvania
Commission on Sentencing Guideline Sentencing Form, at 4. Moreover,
nowhere in the original record prior to or at sentencing is there a copy of the
sentencing guideline form17 indicating that this was a second or subsequent
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17 Notably, an April 10, 2018 letter from the York County Clerk of Courts
indicates that the sentencing guideline form is not available and would be
forwarded at a later date. The form is nowhere in the record save for it being
entered as an exhibit one month after sentencing at the sentencing
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offense. Cf. Commonwealth v. Aponte, 855 A.2d 800 (Pa. 2004) (while
fact of defendant’s prior drug convictions not required to be pled in information
for purposes of application of section 780-115(a), information notified
defendant of Commonwealth’s intent to seek enhancement). Rather, in a
signed and dated guilty plea form, the maximum term of incarceration for
each of Cruz-Figueroa’s PWID offenses is listed as 15 years, or 30 years if the
maximum sentences were run consecutively. See Instrucciones Acerca
Entrando una Declaracion de Culpabilidad (“Guilty Plea Instructions”),
4/5/11, at 6. We note that in Whitmore, supra, our Court found that when
the trial court had already factored the defendant’s prior PWID conviction into
his PRS under the guidelines, it was reversible error for the trial judge to
double-count the defendant’s prior PWID conviction in imposing a statutory
maximum sentence under section 780-115.18
Based on the sentencing court’s apparent confusion with regard to what
sentence it was imposing -- a section 780-115 double-the-statutory maximum
sentence, or one purportedly in the aggravated range, we are compelled to
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reconsideration hearing. Under such circumstances, we cannot sanction the
Commonwealth’s belated introduction of the form, indicating that this was
Cruz-Figueroa’s “second or subsequent offense” for purposes of section 780-
115, or the assistant district attorney encouraging the public defender to not
contest the fact that it is a second or subsequent offense.
18On remand, the court must be mindful of this prohibition. See Whitmore
(court may not double-count prior convictions in imposing sentence under
section 780-115).
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vacate Cruz-Figueroa’s sentence. The remarks by the trial judge at sentencing
do not evince a true awareness of the sentencing guidelines or properly
explain his decision to deviate so drastically from them. It is evident from the
sentencing transcript that the trial judge thought he was sentencing Cruz-
Figueroa in the aggravated range, a sentence which is still within the
guidelines. However, in actuality Cruz-Figueroa’s sentence is both outside the
guidelines and in excess of the statutory maximum. The court’s attempt to
state additional reasons for its sentence at the sentencing reconsideration
hearing is inappropriate; it cannot ameliorate its errors by this belated
rationalization where the statute requires the court state its reasons for the
sentence in court at the time of sentencing. See 42 Pa.C.S. § 9721(b).19 See
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19 We caution the trial court, upon remand, to properly explain how it utilized
Cruz-Figueroa’s prior PWID offenses (which the court incorrectly counted as
3) to deviate upwards to an outside-the-guideline range sentence; such
offenses were intrinsically factored into Cruz-Figueroa’s prior record score of
3. The relevant question is whether the court counted those prior PWID
offenses toward its consideration of Cruz-Figueroa’s rehabilitative potential
and/or his complete absence of regard for the law, or whether the court truly
double-counted those charges as part of his prior record score. Three relevant
cases guide the analysis and should be the polestar of the court’s reasoning
on this issue on remand. See Commonwealth v. Peck, 202 A.3d 739, 749
(Pa. Super. 2019 (defendant’s 20-40 year sentence of imprisonment for drug
delivery resulting in death upheld where court explained statutory maximum
sentence “included proper aggravating factors, such as the nature of the drug
that [the defendant] sold, [defendant’s] salesmanship of the heroin he sold,
and [defendant’s] existing relationship with Decedent” and sentencing court’s
reference to defendant’s prior convictions for drug offenses was proper “as the
specific nature of those offenses was relevant to the court’s consideration of
[the defendant’s] rehabilitative potential”); Commonwealth v. Messmer,
863 A.2d 567, 573 (Pa. Super. 2003) (defendant entered guilty plea for driving
under influence of alcohol and related offenses; trial court’s concern that
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Commonwealth v. Rodda, 732 A.2d 212, 216 (Pa. Super. 1999) (in
imposing sentence, record must demonstrate with clarity that court
considered sentencing guidelines “in a rational and systematic way and made
a dispassionate decision to depart from them”).
Judgment of sentence vacated; PWID convictions affirmed. Remanded
for resentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/16/2019
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defendant had five prior DUIs in preceding twenty-four years to justify upward
departure sentence was upheld on appeal; sentencing court sufficiently
explained need to impose statutory maximum sentence “in order to protect
the public and meet the rehabilitative needs of [the defendant]”), but see
Commonwealth v. Goggins, 748 A.2d 721, 732 (Pa. Super. 2000) (en banc)
(defendant convicted of possession of cocaine with intent to deliver and
sentenced to above-aggravated-range sentence of five to ten years’
incarceration; sentence vacated on appeal where court double-counted
defendant’s prior record score, which was already included in mandatory
minimum sentence, even where trial court was concerned about defendant’s
“continuing pattern of engaging in the same criminal activity despite two
earlier convictions, thereby indicating lack of amenability to rehabilitat[e]”).
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