Com. v. Gonzalez-Oquendo, C. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
CARLOS I. GONZALEZ-OQUENDO :
:
Appellant : No. 1297 EDA 2019
Appeal from the Order Entered April 29, 2019
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0000063-2018
BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.
MEMORANDUM BY BOWES, J.: FILED JANUARY 14, 2020
Carlos I. Gonzalez-Oquendo appeals from the judgment of sentence of
twenty-four to forty-eight months of incarceration imposed following the
revocation of his parole and probation. We affirm.
The instant appeal stems from Appellant’s guilty plea entered on March
15, 2018, to strangulation, a second-degree felony. Appellant was originally
sentenced to serve six to twelve months of incarceration, followed by twelve
months of county probation. He was also ordered to undergo anger
management, complete a batterers’ intervention assessment and comply with
any suggested treatment, undergo a mental health evaluation, have no
contact with his victim, and pay court costs and fines. Appellant was paroled
from prison on June 5, 2018. His maximum parole sentence was November
5, 2019.
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On August 28, 2018, Appellant was in an automobile accident. His
strangulation victim was a passenger in Appellant’s vehicle during the
accident. When police went to arrest Appellant for his involvement in the
accident, he was found inside of the victim’s residence. On January 24, 2019,
Appellant pled guilty to accident involving death or injury, a second-degree
misdemeanor and was sentenced to nine months of probation. As a result of
this new conviction, Northampton County Probation Department filed a
petition for review of Appellant’s parole in this case.
On February 1, 2019, the trial court held a probation revocation
hearing.1 In addition to the conviction and multiple failures to abide by the
no-contact order, the probation office made the court aware that Appellant
had not yet undergone a batterers’ intervention or anger management
counseling. Additionally, he had not made any payments towards his court
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1 In Gagnon v. Scarpelli, 411 U.S. 778 (1973), the Supreme Court
determined a two-step procedure was required before a parole or probation
may be revoked:
[A] parolee [or probationer] is entitled to two hearings, one a
preliminary hearing [Gagnon I] at the time of his arrest and
detention to determine whether there is probable cause to believe
that he has committed a violation of his parole [or probation], and
the other a somewhat more comprehensive hearing [Gagnon II]
prior to the making of a final revocation decision.
Id. at 781-82. Here, the trial court combined the two hearings into one
Gagnon II proceeding. However, since Appellant has only preserved and
challenged the resulting sentence, we do not consider whether this procedure
was proper.
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costs or fines. Appellant admitted that he had repeatedly violated the no-
contact order, but explained that he did so in order to assist with the care of
a child he shares with the victim. The trial court revoked Appellant’s parole
and probation and imposed a new sentence, wherein it closed out his parole,
revoked his probation, and ordered him to serve twenty-four to forty-eight
months of incarceration at a state facility.
Appellant filed a post-sentence motion for reconsideration. After some
procedural irregularities, the court denied Appellant’s post-sentence motion
and he filed a timely appeal. Appellant complied with the court’s order to file
a Pa.R.A.P. 1925(b) statement, and raises the following issue for our review:
“[d]id the [t]rial [c]ourt err when it imposed a sentence that was manifestly
excessive or inconsistent with the Pennsylvania Sentence Code?” Appellant’s
brief at 6.
Our scope of review permits consideration of a challenge to the
discretionary aspects of a sentence imposed following a revocation of
probation. Commonwealth v. Williams, 69 A.3d 735, 740 n.5 (Pa.Super.
2013). The law is well-settled, however, that sentencing is within the
discretion of the trial court and should not be disturbed absent a clear abuse
of discretion. Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super.
2014). Furthermore, challenges to discretionary aspects of a sentence do not
automatically entitle an appellant to a right of review. Commonwealth v.
Dempster, 187 A.3d 266, 272 (Pa.Super. 2018). An appellant must meet
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certain procedural prerequisites before an appellate court can hear such a
challenge. Specifically, we engage in a four-part analysis to determine
whether (1) the appeal is timely; (2) the issue has been preserved; (3)
Appellant’s brief includes a concise statement of the reasons relied upon for
allowance of appeal with respect to discretionary aspects of sentence pursuant
to Pa.R.A.P. 2119(f); and (4) the concise statement raises a substantial
question that the sentence is inappropriate under the sentencing code.
Commonwealth v. Austin, 66 A.3d 798, 807-08 (Pa.Super. 2013). If each
of these requirements is met, we will proceed to a determination on the merits
of the claim. Id.Appellant filed a timely post-sentence motion and concise statement
challenging the excessiveness of his sentence. Also, his brief contains a
statement of reasons relied upon for his challenge to the discretionary aspects
of his sentence as required by Pa.R.A.P. 2119(f). Appellant’s brief at 11-12.
In his statement, Appellant claims that a substantial question is presented
“because the sentence imposed on Appellant was inconsistent with the
Pennsylvania Sentencing Code and was contrary to the fundamental norms
which underlie sentencing.” Id. at 12. The Commonwealth counters that
Appellant’s claim amounts to a boilerplate assertion of excessiveness that
does not raise a substantial question. Commonwealth’s brief at 10. We are
constrained to agree.
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While an allegation of excessiveness within the statutory limits can raise
a substantial question, “[b]ald allegations of excessiveness are insufficient.
Commonwealth v. Reynolds, 835 A.2d 720, 733 (Pa.Super. 2003). An
Appellant “must provide a separate statement specifying where the sentence
falls in the sentencing guidelines, what provision of the sentencing code has
been violated, what fundamental norm the sentence violates, and the manner
in which it violates the norm.” Commonwealth v. Naranjo, 53 A.3d 66, 72
(Pa.Super.2012), see also Commonwealth v. McNabb, 819 A.2d 54, 55-
56 (Pa.Super. 2003) (“The Rule 2119(f) statement must specify . . . . what
particular provision of the Code is violated”). As such, “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.” Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa.Super. 2000)
(emphasis in original).
In his statement, Appellant does not offer any specifics about what
provision of the sentencing code or fundamental norm has been violated or
the reasons for those violations.2 Appellant cites Commonwealth v. Griffin,
65 A.3d 932, 936 (Pa.Super. 2013). However, Griffin does not support
Appellant’s position, since we found that the defendant in Griffin failed to
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2We note that “the sentencing guidelines do not apply to sentences imposed
as a result of probation or parole revocations” and Appellant received a
sentence within the statutory maximum allowed by law. Commonwealth v.
Ware, 737 A.2d 251, 254 (Pa.Super. 1999).
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raise a substantial question. Accordingly, we find that Appellant has failed to
raise a substantial question.
Even if we were to determine that Appellant’s claim did raise a
substantial question, we would find no merit to the underlying allegation. The
imposition of sentence following the revocation of parole or probation “is
vested within the discretion of the trial court, which, absent an abuse of that
discretion, will not be disturbed on appeal.” Commonwealth v. Smith, 669
A.2d 1008, 1011 (Pa.Super. 1996). A trial court has not abused its discretion
“unless the record discloses that the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will.”
Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000) (citing to
Commonwealth v. Smith, 673 A.2d 893, 895 (Pa. 1996)).
Our review of the sentencing transcript and Rule 1925(a) opinion reveals
that the trial court considered all of the appropriate factors. As the trial court
explained in its Rule 1925(a) opinion:
. . . . Appellant not only obtained a new charge, but he also
committed technical violations, which, as stated by Appellant’s
probation officer, were worse than the new charge itself. The
probation officer informed this [c]ourt that Appellant was having
contact with the mother of his child, who was the victim of the
strangulation. Specifically, when Appellant obtained his new
charge, only two months after his release on parole, the victim
was with Appellant in the vehicle. When officers attempted to
detain Appellant upon arrest, Appellant was not at his address of
record; instead he was located at the victim’s residence.
Additionally, the probation officer testified that on one of his
scheduled appointments with Appellant, Appellant came to the
office of probation with the victim in his car.
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From the testimony at the Gagnon II hearing, it was
apparent that the probation officer attempted to work with
Appellant in the community and attempted to remind him of steps
he needed to take in order to be compliant with the terms of his
supervision. However, Appellant failed to heed his probation
officer’s advice and instructions. Specifically, although Appellant
underwent his batterer’s assessment while he was incarcerated,
he failed to enroll in the batterers’ classes despite testimony from
the probation officer that he gave Appellant information for the
classes on three separate dates. When this [c]ourt asked
Appellant why he failed to enroll into classes after his batterers’
assessment, Appellant simply stated that on the day of the
evaluation, he was on his way home when he had an accident.
. . . . Appellant not only continued to put the victim at risk, but he
also put the community at risk by committing this crime
approximately two months after being paroled. Also, as explained
supra, the probation officer informed the [c]ourt that at his
original intake with him, Appellant expressed that he lacked any
remorse with respect to the strangulation offense and that
Appellant “pled guilty solely because he was offered a deal of six
months.” In Appellant’s [batterer’s] assessment, the assessor
also indicated that Appellant failed to take any responsibility for
his offense.
Though Appellant asked this [c]ourt for leniency on the basis
that his child needs him and he must work to support his child,
Appellant, on multiple occasions, made the audacious choice to
completely disregard the authority of this [c]ourt after receiving a
relatively light sentence for [the] strangulation of the mother of
his child. . . .
Therefore, by failing to comply with the terms of his
supervision in that he has had multiple contacts with his victim,
Appellant has made his own choice to absent himself from his
child’s life.
Trial Court Opinion, 6/17/19, a 4-8.
The record establishes that the trial court took into account all of the
testimony and arguments put before it at the Gagnon II hearing, in addition
to the history of this case. The trial court explained the reasons for imposing
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a sentence within the statutory maximum allowed by law. Specifically, the
court found that in addition to committing a new crime, Appellant had
repeatedly committed technical violations of his parole and probation and that
the court was worried for the victim’s safety. Notably, the court reached these
conclusions, in part, based on Appellant’s own concessions at the Gagnon II
hearing. Accordingly, Appellant has failed to establish that the trial court
ignored or misapplied the law. Instead, we find that the trial court acted well
within its discretion when it resentenced Appellant. Thus, we decline to disturb
Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/14/20
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