Com. v. Ugarte, D. ( 2017 )

J-S41038-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DAVID UGARTE :
:
Appellant : No. 51 MDA 2017
Appeal from the Judgment of Sentence December 7, 2016
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0002238-2004
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED JULY 26, 2017
Appellant, David Ugarte, appeals from the judgment of sentence
entered in the Lackawanna County Court of Common Pleas, following the
revocation of his probation. We affirm.
In its opinion, the trial court fully and correctly sets forth the relevant
facts and procedurally history of this case. Therefore, we have no need to
restate them. We add Appellant timely filed a notice of appeal on December
27, 2016. The court ordered Appellant, on January 3, 2017, to file a concise
statement of errors complained of on appeal per Pa.R.A.P. 1925(b);
Appellant timely complied on January 12, 2017.
Appellant raises three issues for our review:
WHETHER THE GAGNON COURT VIOLATED PA.R.CRIM.P.
700 WHEN APPELLANT WAS SENTENCED ON HIS
GAGNON VIOLATION BY THE HONORABLE MICHAEL
_____________________________
*Retired Senior Judge assigned to the Superior Court.
J-S41038-17
BARRASSE SINCE HE ORIGINALLY PLED GUILTY BEFORE
AND WAS SENTENCED BY THE HONORABLE VITO
GEROULO?[1]
WHETHER THE [TRIAL] COURT FAILED TO ARTICULATE
REASONS, OR SUFFICIENT REASONS, FOR THE SENTENCE
IMPOSED?
WHETHER THE [TRIAL] COURT ABUSED ITS DISCRETION
BY IMPOSING A HARSH AND EXCESSIVE SENTENCE WHEN
IT SENTENCED [APPELLANT] TO INCARCERATION OF ONE
(1) TO TWO (2) YEARS AT A STATE CORRECTIONAL
FACILITY?
(Appellant’s Brief at 4).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d
910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary
sentencing issue:
[W]e 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) (internal citations omitted).
Objections to the discretionary aspects of a sentence are generally waived if
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1
Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656(1973).
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they are not raised at the sentencing hearing or raised in a motion to modify
the sentence imposed at that hearing. Commonwealth v. Mann, 820 A.2d
788 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
See also Commonwealth v. May, 584 Pa. 640, 887 A.2d 750 (2005), cert.
denied, 549 U.S. 832, 127 S.Ct. 58, 166 L.Ed.2d 54 (2006) (reiterating
absence of specific and contemporaneous objection waives issue on appeal).
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in his brief a
separate concise statement demonstrating a substantial question as to the
appropriateness of the sentence under the Sentencing Code.
Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.
2119(f). The concise statement must indicate “where the sentence falls in
relation to the sentencing guidelines and what particular provision of the
code it violates.” Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa.Super.
2004) (quoting Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa.Super.
2000), appeal denied, 563 Pa. 672, 759 A.2d 920 (2000)). The statement
must also specify “what fundamental norm the sentence violates and the
manner in which it violates that norm.” Kiesel, supra at 532.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830
A.2d 1013, 1018 (Pa.Super. 2003). A substantial question exists “only when
the appellant advances a colorable argument that the sentencing judge’s
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actions were either: (1) 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 (quoting
Commonwealth v. Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc),
appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001)). A claim that a
sentence is manifestly excessive might raise a substantial question if the
appellant’s Rule 2119(f) statement sufficiently articulates the manner in
which the sentence imposed violates a specific provision of the Sentencing
Code or the norms underlying the sentencing process. Mouzon, supra at
435, 812 A.2d at 627. A claim that a sentence is manifestly excessive might
raise a substantial question if the appellant’s Rule 2119(f) statement
sufficiently articulates the manner in which the sentence imposed violates a
specific provision of the Sentencing Code or the norms underlying the
sentencing process. Mouzon, supra at 435, 812 A.2d at 627. “An
allegation that a judge ‘failed to offer specific reasons for [a] sentence does
raise a substantial question.’” Commonwealth v. Dunphy, 20 A.3d 1215,
1222 (Pa.Super. 2011) (quoting Commonwealth v. Reynolds, 835 A.2d
720, 734 (Pa.Super. 2003)).
“In every case in which the court imposes a sentence for a felony or
misdemeanor…the court shall make as a part of the record, and disclose in
open court at the time of sentencing, a statement of the reason or reasons
for the sentence imposed.” 42 Pa.C.S.A. § 9721(b). “Nevertheless, a
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lengthy discourse on the trial court’s sentencing philosophy is not required.
Rather, the record as a whole must reflect the court’s reasons and its
meaningful consideration of the facts of the crime and the character of the
offender.” Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa.Super.
2006) (internal citations omitted).
“In general, the imposition of sentence following the revocation of
probation is vested within the sound discretion of the trial court, which,
absent an abuse of that discretion, will not be disturbed on appeal.”
Commonwealth v. Hoover, 909 A.2d 321, 322 (Pa.Super. 2006).
Revocation of intermediate punishment is treated similarly to revocation of
probation for purposes of appellate review. See Commonwealth v.
Philipp, 709 A.2d 920 (Pa.Super. 1998). In either case, the trial court
“possesses the same sentencing alternatives that it had at the time of initial
sentencing.” Id. at 921. Following revocation of probation, the court may
impose a sentence of total confinement if any of the following conditions
exist: the defendant has been convicted of another crime; the conduct of the
defendant indicates it is likely he will commit another crime if he is not
imprisoned; or, such a sentence is essential to vindicate the authority of the
court. See 42 Pa.C.S.A. § 9771(c).
Pa.R.Crim.P. 700 provides in relevant part as follows:
Rule 700. Sentencing Judge
(A) Except as provided in paragraph (B), the judge who
presided at the trial or who received the plea of guilty or
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nolo contendere shall impose sentence unless there are
extraordinary circumstances which preclude the judge’s
presence. In such event, another judge shall be assigned
to impose sentence.
(B) A court may provide by local rule that sentence on a
plea of guilty or nolo contendere may be imposed by a
judge other than the judge who received a plea of guilty or
nolo contendere. In such event, the defendant must be so
notified at the time of entering the plea.
Comment: Generally, the president judge makes
assignment of judges. However, in one-judge
judicial districts, or in instances in which the
president judge is the one whose presence at
sentencing is precluded, an appropriate assigning
authority, such as the Supreme Court or the Court
Administrator of Pennsylvania, should assign a new
judge.
It is always desirable that the judge who accepts a
plea of guilty or nolo contendere should impose
sentence. It is recognized, however, that the rotation
practices of many courts make it difficult in many
instances for the same judge to sit in both
capacities. For that reason, paragraph (B) provides
that a court may set up an alternate procedure by
local rule. In any event, the judge who imposes the
sentence should ascertain the facts concerning the
plea and the offense. See ABA Standards on
Sentencing Alternatives and Procedures Section 5.1.
Pa.R.Crim.P. 700. Generally, no rule of procedure or case law specifically
prohibits a judge from assuming control over a probation case where the
original sentence was imposed by another jurist; absent extraordinary
circumstances, only the consent of the parties should permit such a
maneuver. Commonwealth v. McNeal, 120 A.3d 313, 323 (Pa.Super.
2015) (holding appellant was entitled to re-sentencing, where no
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“extraordinary circumstances” supported transfer of probation revocation
sentencing authority from original judge, who received appellant’s guilty
plea, to another judge for sentencing upon revocation of probation).
As a prefatory matter, Appellant’s motion for reconsideration of
sentence did not include the claims he raises on appeal; rather, it baldly
asserted that the “sentence imposed [is] harsh and excessive,” without
further elaboration. (See Motion for Reconsideration of Sentence, filed
12/8/16, at 2, unpaginated.) Appellant also failed to raise at the
revocation/sentencing hearing his claims regarding: (1) the court’s failure to
recite on the record its reason for the sentence; and (2) the excessiveness
of Appellant’s sentence. On this basis, Appellant’s claims are arguably
waived. See Mann, supra.Additionally, Appellant failed to meet the minimal requirements of Rule
2119(f). The Rule 2119(f) statement in Appellant’s brief merely recites
authority relevant to a challenge to discretionary aspects of sentencing and
Pa.R.Crim.P. 700; Appellant’s statement fails to articulate what fundamental
norm of sentencing was violated or to indicate how his sentence violates that
norm. See Kiesel, supra. Because Appellant failed to include his claims in
full in his post-sentence motion, and his Rule 2119(f) statement is
inadequate, Appellant has waived his challenges to the discretionary aspects
of his sentence. See Mann, supra; Mouzon, supra. See also
Commonwealth v. Cannon, 954 A.2d 1222 (Pa.Super. 2008) (reiterating
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inadequate Rule 2119(f) statement constitutes failure to raise substantial
question as to discretionary aspects of sentence).
Moreover, even if Appellant had properly preserved his claims, he
would not be entitled to relief. (See Trial Court Opinion, filed 3/1/17, at 6-
14) (finding: (1) in April 2009, court revoked Appellant’s original
probationary term and resentenced Appellant to 24 to 60 months’
incarceration, plus 2 years’ special probation; same court entered judgment
of sentence from which Appellant currently appeals; during 2009 revocation
proceedings, Appellant did not raise Rule 700 objection at that time or
appeal his sentence; upon second revocation, Appellant appeared before
same jurist who sentenced Appellant in 2009; therefore, Appellant cannot
now raise Rule 700 challenge to 2009 court’s authority to resentence
Appellant in 2016, absent objection from either party; Appellant’s Rule 700
challenge to his 2009 sentence, raised seven years later, is waived; 2 (2-3)
Appellant’s challenges to discretionary aspects of sentence likewise fail;
record is replete with information regarding Appellant’s character and
history; Appellant violated terms of his supervision when he absconded from
supervision for over three years; Appellant’s violation is reason for
revocation and sentence; additionally, prior to sentencing, court reviewed
memorandum and recommendation from Lackawanna County Adult
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2
We agree that Appellant’s Rule 700 claim is waived as presented and that
McNeal is procedurally distinguishable.
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Probation and Parole Department; court considered circumstances of
violation, length of time Appellant had absconded, and Appellant’s character;
court also considered that Appellant turned himself in; revocation court
consulted sentencing guidelines and ultimately sentenced Appellant within
guidelines; court observed circumstances of Appellant’s violation, impact of
Appellant’s violation on safety of community, and need to deter Appellant
and others from committing same violation; Appellant was aware of but
disregarded terms of his supervision; Appellant’s conduct indicated Appellant
was unlikely to comply with terms of probation). The record supports the
court’s rationale. Therefore, even if Appellant had properly preserved his
issues, we would affirm on the basis of the trial court opinion. See
generally In re K.L.S., 594 Pa. 194, 197 n.3, 934 A.2d 1244, 1246 n.3
(2007) (stating where issues are waived on appeal, we should affirm).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/26/2017
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Circulated 07/12/2017 12:28 PM