Com. v. Velez, J. ( 2022 )

J-A07045-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOSEPH VELEZ :
:
Appellant : No. 1558 EDA 2021
Appeal from the Judgment of Sentence Entered July 16, 2021
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0003579-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOSEPH VELEZ :
:
Appellant : No. 1559 EDA 2021
Appeal from the Judgment of Sentence Entered July 16, 2021
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0003580-2020
BEFORE: DUBOW, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED JULY 5, 2022
Appellant, Joseph Velez, appeals from the judgment of sentence entered
in the Lehigh County Court of Common Pleas, following his negotiated guilty
plea to three counts of robbery at CP-39-CR-0003579-2020 (“docket 3579-
2020”), and one count of possession of a controlled substance at CP-39-CR-
J-A07045-22
0003580-2020 (“docket 3580-2020”).1 We affirm and grant counsel’s petition
to withdraw.
In its opinion, the trial court set forth the relevant facts and procedural
history of this case as follows.
On November 9, 2019, at approximately 8:52 p.m., police
responded to 1038 Walnut Street, Allentown, Lehigh
County, Pennsylvania for a report of an armed robbery. The
victim was a pizza deliverer for Domino’s Pizza. The victim
told officers that when he arrived at the address, he called
the number from which the order was placed several times
but no one answered. When he exited his vehicle, two
males approached him. One brandished a handgun and
instructed him not to move. The man with the handgun took
the victim’s iPhone. While this was occurring, the other
male rummaged through the victim’s vehicle. The two men
also took the food that the victim was delivering.
On November 18, 2019, at approximately 9:45 p.m.,
officers responded to 901 Tilghman Street, Allentown,
Lehigh County, Pennsylvania where they met with a female
victim of an armed robbery. The victim was a pizza deliverer
for Little John’s. She indicated that the robbery occurred at
426 North Church Street, Allentown, Lehigh County. The
victim stated she was pistol whipped and her cell phone was
stolen. Police observed blood droplets on the sidewalk and
steps at that location.
A residential video camera located at 431 North Church
Street captured the incident and the homeowner permitted
police to view the video. The footage depicted the victim
arriving in the area, exiting her vehicle and retrieving items
from the car, then approaching 426 North Church Street.
As she approached the location, an individual walking north
on Church Street from the 600 block of Gordon Street
approached her and started striking her on the head with an
object. He went through her pockets before fleeing south
on Church Street. The victim provided a physical description
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1 18 Pa.C.S.A. § 3701(a)(1)(ii) and 35 P.S. § 780-113(a)(16), respectively.
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of the individual, but officers were unable to locate him at
that time.
The Little John’s receipt showed that the order was placed
by “Jose” using a cell phone at 9:33 p.m. A search for the
phone number utilized by “Jose” revealed a transaction on
November 4, 2019 by a male named Joseph Asa Velez
[(Appellant)] at which time he sold video game equipment
to The Video Game Store on West Hamilton Street in
Allentown. Police also learned that Appellant made a
purchase from a local pawn shop using the same phone
number that was used in the armed robberies.
On May 1, 2020, officers with the Allentown Police
Department responded to 117 North Law Street, Allentown,
Lehigh County, Pennsylvania for a report of an armed
robbery. The victim, a pizza deliverer for Domino’s Pizza,
told officers that a male wearing a gray hooded sweatshirt
and a medical mask approached him brandishing a
handgun. He demanded the victim’s personal items and the
food he was delivering. The perpetrator fled on foot with
the victim’s wallet, cell phone, and the pizza. An officer
called the phone number that was used to place the pizza
order but the individual who answered neither identified
himself nor provided his location.
On May 18, 2020, a detective obtained phone records
indicating that the person who called in the food order was
Appellant. Appellant matched the description of the suspect
seen on several security cameras in the area on May 1,
2020.
On May 19, 2020, at approximately 3:38 p.m., Allentown
Police Department officers were patrolling in the area of
Eighth and Chestnut Streets in Allentown when they
observed Appellant on the porch stairs of 112 North Eighth
Street. One of the officers was familiar with Appellant and
knew that he had an active warrant. The officer also knew
Appellant was a suspect in several armed robberies. The
officers circled back and positively identified him. Appellant
was arrested. A search incident to arrest revealed a small
bag of vegetable material in Appellant’s left front pocket.
Officers also located a small baggie containing white powder
in his wallet. A box cutter and pepper spray were also
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located on Appellant’s person. Field tests on the substances
in the baggies yielded positive results for marijuana and
cocaine, respectively.
During an interview, Appellant admitted to having the phone
number associated with the three robberies. He also
admitted that he committed the robbery of the Domino’s
delivery-person on November 9, 2019 and the robbery of
the Little John’s delivery-person on November 18, 2019.
(Trial Court Opinion, 8/30/21, 1-4).
Appellant entered a negotiated guilty plea on June 17, 2021, to three
counts of robbery at docket 3579-2020, and one count of possession of a
controlled substance at docket 3580-2020. Pursuant to the terms of the plea
agreement, the parties agreed to concurrent sentences for the first and third
robbery counts, and that the court would not exceed five years as the
minimum period of incarceration. There was no agreement with respect to
whether the court would impose its sentence for the second robbery count
consecutively or concurrently. With respect to the charge for possession of a
controlled substance, the parties agreed that the sentence had a three-year
maximum and that the court would impose it concurrently to docket 3579-
2020. (N.T. Plea Hearing, 6/17/21, at 2-5).
On July 16, 2021, after reviewing a pre-sentence investigation (“PSI”)
report, and the sentencing guidelines, the court imposed concurrent sentences
at docket 3579-2020 of four to ten years of incarceration for counts 1 and 3,
and a consecutive five to ten years’ imprisonment for count 2. At docket
3580-2020, the court imposed a sentence of six to twelve months’
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imprisonment, concurrent to count 1 on docket 3579-2020. The sentence
imposed was in accordance with the terms of the plea agreement.
Appellant filed timely notices of appeal on July 29, 2021, at each
underlying docket. On August 2, 2021, the court directed Appellant to file
concise statements of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b), and Appellant timely filed his concise statements on August 16,
2021. On August 30, 2021, this Court consolidated the appeals sua sponte.
As a preliminary matter, counsel seeks to withdraw representation
under Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 602 Pa. 159, 978 A.2d 349 (2009). Anders and Santiago require
counsel to: (1) petition the Court for leave to withdraw, certifying that after a
thorough review of the record, counsel has concluded the issues to be raised
are wholly frivolous; (2) file a brief referring to anything in the record that
might arguably support the appeal; and (3) furnish a copy of the brief to the
appellant and advise him of his right to obtain new counsel or file a pro se
brief to raise any additional points the appellant deems worthy of review.
Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compliance
with these requirements is sufficient. Commonwealth v. Wrecks, 934 A.2d
1287, 1290 (Pa.Super. 2007). After establishing that counsel has met the
antecedent requirements to withdraw, this Court makes an independent
review of the record to confirm that the appeal is wholly frivolous.
Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 2006). See also
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Commonwealth v. Dempster, 187 A.3d 266 (Pa.Super. 2018) (en banc).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor [Commonwealth v. McClendon, 495
Pa. 467, 434 A.2d 1185 (1981)] requires that counsel’s brief
provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To repeat,
what the brief must provide under Anders are references
to anything in the record that might arguably support the
appeal.
* * *
Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
counsel’s references to anything in the record that arguably
supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, counsel must: (1) provide a
summary of the procedural history and facts, with citations
to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4)
state counsel’s reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
Id. at 178-79, 978 A.2d at 361.
Instantly, appellate counsel has filed a petition to withdraw. The petition
states counsel conducted a thorough and conscientious review of the record
and determined the appeal is wholly frivolous and without merit. (Petition to
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Withdraw as Counsel, 10/12/21, at 1). Counsel also supplied Appellant with
a copy of the brief and a letter explaining Appellant’s right to retain new
counsel or to proceed on appeal pro se to raise any additional issues Appellant
deems worthy of this Court’s attention. (Id. at 2).
In the Anders brief, counsel provides a summary of the history of this
case. Counsel’s argument refers to relevant law that might possibly support
Appellant’s issues. Counsel further states the reasons for counsel’s conclusion
that the appeal is wholly frivolous. Therefore, counsel has substantially
complied with the technical requirements of Anders and Santiago.
Appellant has not responded to the Anders brief pro se or with newly-
retained private counsel. Counsel raises the following issue on Appellant’s
behalf:
Whether the [trial] court abused its discretion by imposing
sentences which were manifestly unreasonable based upon
the factors reviewed by the court and that the court failed
to properly and fully consider all relevant factors regarding
[Appellant]?
(Anders Brief at 5) (some punctuation omitted).
Appellant argues that the court did not properly consider the sentencing
factors when it imposed Appellant’s sentence. Appellant asserts the court
imposed a sentence based on the seriousness of the offense, without
considering mitigating factors of Appellant’s youth or his need for drug-related
treatment, or his remorse and acceptance of responsibility. Appellant
concludes the court abused its sentencing discretion in this case, and we must
vacate and remand for resentencing. We disagree.
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Preliminarily, 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, 912 (Pa.Super. 2000). Prior to reaching the merits of a
discretionary aspect of sentencing issue:
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.A. § 9781(b).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013), appeal
denied, 621 Pa. 682, 76 A.3d 538 (2013) (quoting Commonwealth v. Evans,
901 A.2d 528, 533 (Pa.Super 2006), appeal denied, 589 Pa. 727, 909 A.2d
303 (2006)). Generally, objections to the discretionary aspects of a sentence
are waived if 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, 794 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831
A.2d 599 (2003).
Instantly, Appellant did not challenge the discretionary aspects of his
sentence at the time of sentencing and filed no post-sentence motions.
Therefore, Appellant’s issue is waived. See Mann, supra. See also
Commonwealth v. Tukhi, 149 A.3d 881, 888 (Pa.Super. 2016) (determining
defendant waived discretionary aspects of sentencing claim by not preserving
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issue at sentencing or in post-sentence motion; waived issue is frivolous in
context of Anders brief).
Moreover, even if Appellant had preserved a discretionary aspects
challenge, it would not merit relief.2 Our standard of review of a challenge to
the discretionary aspects of sentencing 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. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal
denied, 586 Pa. 723, 890 A.2d 1057 (2005) (quoting Commonwealth v.
Rodda, 723 A.2d 212, 214 (Pa.Super. 1999) (en banc)). “Where [PSI]
reports exist, we shall continue to presume that the sentencing judge was
aware of relevant information regarding the defendant’s character and
weighed those considerations along with mitigating statutory factors.”
Commonwealth v. Devers, 519 Pa. 88, 101-02, 546 A.2d 12, 18 (1988).
A [PSI] report constitutes the record and speaks for itself.
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2 We note that even if Appellant had preserved his sentencing challenge, he
would be limited to challenging only those aspects of the court’s sentence that
were not part of the negotiated plea agreement. See Commonwealth v.
Dalberto, 648 A.2d 16, 21 (Pa.Super. 1994), cert. denied, 516 U.S. 818, 116
S.Ct. 75, 133 L.Ed.2d 34 (1995) (stating: “[W]e will allow an appeal only as
to those discretionary aspects of sentencing which have not been agreed upon
during the negotiation process”).
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In order to dispel any lingering doubt as to our intention of
engaging in an effort of legal purification, we state clearly
that [sentencing courts] are under no compulsion to employ
checklists or any extended or systematic definitions of their
punishment procedure. Having been fully informed by the
pre-sentence report, the sentencing court’s discretion
should not be disturbed. This is particularly true, we repeat,
in those circumstances where it can be demonstrated that
the judge had any degree of awareness of the sentencing
considerations, and there we will presume also that the
weighing process took place in a meaningful fashion.
Id. at 102, 546 A.2d at 18. See also Commonwealth v. Tirado, 870 A.2d
362 (Pa.Super. 2005) (explaining if sentencing court has benefit of PSI report,
then law presumes court was aware of relevant information regarding
appellant’s character and mitigating factors).
Here, the sentencing court had the benefit of a PSI report. (N.T.
Sentencing, 7/16/21, at 3). Thus, we can presume the court considered the
relevant information and mitigating factors. See Devers, supra; Tirado,
supra. Further, the court explained that prior to imposing sentence, it had
reviewed the PSI report and reviewed the sentencing guidelines with counsel.
The court then imposed a sentence that complied with the terms of Appellant’s
plea agreement and constituted a standard range sentence. The court
explained that it factored in Appellant’s age, prior trauma, and substance
abuse issues when it fashioned the sentence. The court also discussed
Appellant’s work and educational history and advised him to use his time to
obtain his GED and learn some employment skills.
Based upon the foregoing, Appellant is not entitled to relief on a
challenge to the discretionary aspects of sentencing. See Hyland, supra.- 10 -
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Following our independent review of the record, we agree the appeal is
frivolous. See Dempster, supra; Palm, supra. Accordingly, we affirm and
grant counsel’s petition to withdraw.
Judgment of sentence affirmed; counsel’s petition to withdraw is
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/5/2022
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