J-S04045-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    RANDY V. VASQUEZ-BONILLA,                  :
                                               :
                      Appellant                :   No. 548 EDA 2016

            Appeal from the Judgment of Sentence January 14, 2016
              In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0014463-2009,
                            MC-51-CR-0024553-2009


BEFORE: SHOGAN, OTT, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                           FILED MARCH 31, 2017

        Randy V. Vasquez Bonilla (“Appellant”) appeals from the judgment of

sentence entered in the Court of Common Pleas of Philadelphia County

following revocation of his probation. We vacate judgment of sentence and

remand for resentencing.

        The trial court aptly summarizes the pertinent factual and procedural

history to this case as follows:

        On or about May 30, 2009, [Appellant] was charged with
        Conspiracy under 18 Pa.C.S. § 903 and Possession with Intent to
        Distribute under 35 P.S. § 780-113(a)(30). On June 6, 2010,
        Appellant pled guilty before this Court to both charges and was
        sentenced to two years Intermediate Punishment, followed by
        two years of probation. On or about December 7, 2012, while
        on [the trial] court’s probation, Appellant was charged with
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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       Criminal Attempt – Murder under 18 Pa.C.S. § 901. The victim
       in this case was left in critical condition resulting from 40 stab
       wounds and six slashes across his throat. Appellant and the
       victim were drinking together at a local bar prior to the attack.
       [At] [s]ome point later that evening Appellant accompanied the
       victim back to the victim’s apartment where the attack took
       place. Appellant then robbed the victim of $2,000 and stole his
       vehicle which was later recovered three blocks away from th
       apartment. The vehicle had been set ablaze in an attempt to
       cover up evidence. Appellant pled guilty to Criminal Attempt on
       January 9, 2014, and was sentenced to 10 to 20 years of
       confinement plus five years of probation. As a result[, the trial
       court] found Appellant in direct violation of its probation . . .
       and, on January 14, 2016, sentenced him to a term of 20 to 40
       years, to be served consecutively to his sentence for Criminal
       Attempt.

Trial Court Opinion, filed June 29, 2016, at 1-2.1

       Appellant, represented by counsel at his revocation sentencing

hearing, offered no oral objection to the court’s imposition of sentence but

filed a post-sentence motion asserting baldly that “[t]he sentence imposed

was the maximum allowed by law and is above the aggravated range of the
____________________________________________


1
  The aggregate revocation sentence of incarceration was 30 to 60 years,
which comprised two 10 to 20 year sentences for PWID and Conspiracy
convictions docketed under CP-51-CR-0014463-2009 and one 10 to 20 year
sentence for a PWID conviction docketed under CP-51-CR-0012266-2009.
See VOP Hearing, 1/14/16 at 29. It appears that the trial court alludes
exclusively to the sentences at CP-51-CR-0014463-2009 because Appellant
limited his post-sentence motion and notice of appeal to the sentences under
this bill number, alone. As the record reveals that only two of Appellant’s
three judgments of sentence were appealed, we lack jurisdiction to review
the revocation sentence imposed at CP-51-CR-0012266-2009.                 See
Commonwealth v. Hardy, 99 A.3d 577, 579 (Pa.Super. 2014) (holding
where bill of information not included in notice of appeal, no appeal was filed
from judgment of sentence at that number, depriving court of jurisdiction to
grant relief at that number); see also Commonwealth v. Garwood, 466
A.2d 1086, 1087 (Pa.Super. 1983)).



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Sentencing Guidelines and extremely excessive.” See Appellant’s “Motion to

Reconsider VOP Sentence,” filed 1/21/16.       On January 27, 2016, the trial

court entered an order denying Appellant’s motion without a hearing.

      On February 3, 2016, the trial court granted counsel’s motion to

withdraw and appointed present counsel to represent Appellant in Forma

Pauperis. This timely appeal followed.

      Appellant presents the following question for our review:

      WHETHER THE VIOLATION OF PROBATION (VOP) COURT’S
      SENTENCE OF TWENTY (20) TO FORTY (40) YEARS
      INCARCERATION CONSECUTIVE TO AN UNRELATED SENTENCE
      VIOLATED Pa.R.Crim.P. § 702 and Pa.C.S. § 9721(b),
      CONSTITUTING AN ABUSE OF DISCRETION?

Appellant’s brief at 3.

      “Generally, in reviewing an appeal from a judgment of sentence

imposed after the revocation of probation, this Court's scope of review

includes the validity of the hearing, the legality of the final sentence, and if

properly raised, the discretionary aspects of the appellant's sentence.”

Commonwealth v. Kuykendall, 2 A.3d 559, 563 (Pa. Super. 2010) (citing

Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006)). See

also Commonwealth v. Cartrette, 83 A.3d 1030, 1034 (Pa.Super. 2013)

(en banc) (holding our “scope of review in an appeal from a revocation

sentencing includes discretionary sentencing challenges.”).

      Revocation of a probation sentence is a matter committed to the sound

discretion of the trial court, and that court's decision will not be disturbed on

appeal in the absence of an error of law or an abuse of discretion.

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Commonwealth v. McNeal, 120 A.3d 313, 322 (Pa.Super. 2015) (citations

and internal quotation marks omitted). “An abuse of discretion is more than

an error in judgment—a sentencing 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. Colon, 102 A.3d 1033, 1043 (Pa.Super. 2014).

      In Appellant’s counseled brief, he argues that the trial court abused its

discretion   in   imposing   an   aggregate   sentence     of   20   to   40    years’

incarceration, consecutive to his 10 to 20 year sentence for attempted

murder, without considering the particular circumstances of the offense and

Appellant’s character as required under 42 Pa.C.S. § 9721(b).                     See

Appellant’s brief at 6.      As Appellant’s issue challenges the discretionary

aspects of his sentence, there is no impediment to our review. “The right to

appellate review of the discretionary aspects of a sentence is not absolute.”

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014). Rather,

where an appellant challenges the discretionary aspects of a sentence, the

appeal   should    be   considered    a   petition   for   allowance      of   appeal.

Commonwealth v. W.H.M. Jr., 932 A.2d 155, 163 (Pa.Super. 2007).

      As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court's jurisdiction by satisfying a
      four-part test:



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J-S04045-17


              [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.
              [708]; (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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super.

2006)).

        Here, Appellant filed a timely post-sentence motion and notice of

appeal. He also filed a brief containing a proper Pa.R.A.P. 2119(f) statement

of the reasons relied upon for appealing the discretionary aspects of his

sentence. However, the specific claims raised in his Rule 2119(f) statement

are unpreserved for our review, as they differ from the bald allegations

raised in his post-sentence motion.2

        Specifically, Appellant’s Rule 2119(f) statement contends that the

court failed to consider “the particular circumstances of the offense and the

character of the defendant” pursuant to 42 Pa.C.S. § 9721(b).            See

Appellant’s brief at 5. He elaborates on these themes on the next page of

his brief, which we elect to construe as an extension of his Rule 2119(f)

statement.3       Prior counsel, however, raised none of these issues in
____________________________________________


2
    Appellant raised no sentencing issues at his sentencing hearing.
3
 On page 6 of Appellant’s brief, under the heading “Argument on the
Merits,” Appellant argues:
(Footnote Continued Next Page)


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J-S04045-17



Appellant’s post-sentence motion.                Therefore, Appellant has failed to

preserve any of the specific discretionary aspects of sentencing claims

contained in his brief to this Court.            See Commonwealth v. Mann, 820

A.2d 788 (Pa.Super. 2003) (stating issues that challenge discretionary

aspects of sentencing are generally waived if they are not raised during

sentencing     proceedings          or    in     post-sentence   motion);   Accord

Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012). See

also Commonwealth v. Reeves, 778 A.2d 691, 692-93 (Pa.Super. 2001)

(finding waiver where appellant “did not give the sentencing judge an

opportunity to reconsider or modify sentence” on any of the bases that

Appellant currently argues on appeal); Pa.R.A.P. 302(a) (“[i]ssues not raised

in the lower court are waived and cannot be raised for the first time on

appeal”).4
                       _______________________
(Footnote Continued)


      In Appellant’s case the court focused on the actions in the
      unrelated prior convictions, and neglected to take into [sic] the
      other factors in § 9721(b). The sentencing court did not take
      into consideration Appellant’s background, remorse, explanation
      of the direct violation, and whether Appellant could be
      rehabilitated and imposed the maximum sentence allowed by
      statute on the violation of probation.      Thus, the sentence
      imposed was unreasonable and excessive and as such should be
      vacated.”

Appellant’s brief at 6.
4
  Correspondingly, Appellant’s post-sentence issues that his sentences
represented the maximum prescribed under the law, failed to conform to
sentencing guidelines, and were “exceedingly excessive” have been
(Footnote Continued Next Page)


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      Finally, we address the Commonwealth’s stated position that the trial

court imposed an illegal revocation sentence to the extent it applied the

recidivist statute at 35 P.S. § 780-115,5 which doubles the statutory

maximum penalty for PWID upon proof of a prior conviction for a similar

offense, to Appellant’s revocation sentence for Conspiracy to commit PWID.

Indeed, this Court has held that the sentencing enhancement at Section

780-115 does not apply to a conviction for conspiracy to commit PWID. See

Commonwealth v. Young, 922 A.2d 913, 918 (Pa.Super. 2007) (holding

restrictive language in statute specifically empowers court to double

sentence for subsequent drug conviction; enhancement not applicable to

conspiracy conviction attending subsequent drug conviction).

                       _______________________
(Footnote Continued)

abandoned in the present appeal. Even if Appellant had presented them
herein, this Court has declined to discern a substantial question from either
a claim that a revocation sentence deviated from sentencing guidelines, see
Commonwealth v. Williams, 69 A.3d 735, 741 (Pa.Super. 2013) (holding
sentencing guidelines do not apply to sentences imposed as a result of
probation or parole revocations), or a bald claim that a sentence within
statutory limits is excessive. See Commonwealth v. Trippett, 932 A.2d
188, 201-03 (Pa.Super. 2007) (holding bald allegations of excessiveness
insufficient to permit discretionary review).
5
  35 P.S. § 780-115(a) provides:

      Any person convicted of a second or subsequent offense under
      clause (30) of subsection (a) of section 13 of this act [35 P.S. §
      113] or of a similar offense under any statute of the United
      States or of any state may be imprisoned for a term up to twice
      the term otherwise authorized, fined an amount up to twice that
      otherwise authorized, or both.

35 P.S. § 780-115(a).



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       Appellant has not raised this issue, but legality of a sentence is a

nonwaivable issue and may be raised at any time or sua sponte by this

Court.   Commonwealth v. Watley, 81 A.3d 108, 118 (Pa.Super. 2013).

Reviewing the record in light of Young, we agree with the Commonwealth

that the trial court erroneously applied the sentencing enhancement statute

to Appellant’s conviction for conspiracy, and that the resulting sentence of

10 to 20 years’ incarceration exceeded the statutory maximum penalty of 10

years. See 35 P.S. § 780-113(f)(1.1). Accordingly, we vacate judgment of

sentence and remand to the trial court for resentencing.6

       Judgment of sentence vacated.             Case remanded for proceedings

consistent with this decision. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/31/2017



____________________________________________


6
  Since the sentence for conspiracy was imposed consecutive to the sentence
for possession with intent to deliver cocaine and marijuana, our decision
here disturbs the trial court's sentencing plan. Thus, we are compelled to
vacate the entire sentence and remand for resentencing. See Young, 922
A.2d at 918 n. 9.




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