J-S06037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

PATRICK R. RAMIREZ,

                            Appellant                No. 2156 MDA 2014


           Appeal from the Judgment of Sentence November 3, 2014
               In the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-CR-0000361-2014


BEFORE: PANELLA, J., MUNDY, J., AND STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                    FILED JANUARY 28, 2016

        Appellant Patrick R. Ramirez appeals from the judgment of sentence

entered by the Honorable Tina Polachek Gartley of the Court of Common

Pleas of Luzerne County after a jury convicted Appellant of Driving Under the

Influence of Alcohol or Controlled Substance (DUI), Accidents Involving

Death or Personal Injury, Careless Driving, and Fail to Stop and Give/Render

Aid.1   Appellant claims the trial court abused its discretion in imposing a

sentence in the aggravated range of the sentencing guidelines without

providing its rationale on the record. After careful review, we affirm.

        On September 8, 2013, Appellant, along with his close friends Shane

Stewart (“the victim”), Derek Marsh, and Stuart Thompson, became
____________________________________________


1
 18 Pa.C.S. § 3802(a)(1) (General Impairment/Incapable of Safe Driving),
18 Pa.C.S. § 3802(a), 75 Pa.C.S. § 9714(a), 75 Pa.C.S. §3744(a).



*Former Justice specially assigned to the Superior Court.
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intoxicated after socializing at several bars in Wilkes-Barre in their

employer-provided truck.     In the early hours of the morning, the men

decided to go to McDonald’s on Kidder Street to eat. While in the parking

lot, the victim was revving the truck’s engine and squealing the tires. After

the victim and Appellant engaged in an argument, the victim got out of the

truck and Appellant moved to the driver’s seat and began to drive towards

the drive-through window.

      At some point, the victim ran towards the truck and attempted to

jump onto the moving vehicle as it hit and bounced over a curb. The victim

fell off the vehicle and landed on the road in the parking lot. An eyewitness,

Shannon McAndrew, ran towards Appellant’s vehicle to tell him that he hit

the victim. Appearing not to believe that the victim was injured, Appellant

approached the victim and asked him to get up. Ms. McAndrew noticed that

Appellant was impaired as his speech was slurred and slow and he stumbled

as he walked.    Once Appellant observed blood coming from the victim’s

mouth and nose, Appellant fled the scene of the accident in the truck. Ms.

McAndrew told police that Appellant ran back to the truck, jumped several

curbs, and sped out of the parking lot at a high rate of speed before driving

over the median on the main road.

      Bystanders attended to the victim and called emergency personnel.

The victim died as a result of his injuries. Officers apprehended Appellant in

a hotel room that he was sharing with the victim and their friends. Appellant

refused to take a blood alcohol test.

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      A jury convicted Appellant of the aforementioned offenses, but

acquitted him of Homicide by Vehicle While Driving under the Influence and

Accidents Involving Death/Injury - Not Properly Licensed.     The trial court

sentenced Appellant to twenty-four to forty-eight months imprisonment on

the Accidents Involving Death/Personal Injury count, a concurrent term of

ninety days to six months imprisonment on the DUI count, and fines on the

remaining counts.   Appellant filed a motion to modify his sentence, which

the trial court subsequently denied. This timely appeal followed.

      Appellant’s sole claim on appeal is that the trial court abused its

discretion in imposing an aggravated range sentence without placing its

reasons on the record for the deviation.           Appellant challenges the

discretionary aspects of his sentence for which there is no automatic right to

appeal. 42 Pa.C.S. § 9781(b).

      In order to appeal the discretionary aspects of a sentence, the
      defendant must set forth in his brief a statement of the reasons
      relied upon for allowance of appeal, and such statement must
      precede the defendant's argument on the merits. Pa.R.A.P.
      2119(f).    Further, the defendant's statement must raise a
      substantial question as to whether the court properly considered
      the sentencing guidelines.

Commonwealth v. Downing, 990 A.2d 788, 792 (Pa. Super. 2010).              In

this case, Appellant has included in his appellate brief a statement of the

reasons relied upon for allowance of appeal pursuant to Rule 2119(f).

Moreover, we have previously determined that an appellant raises a

substantial question when he alleges that the trial court failed to state



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sufficient reasons on the record when imposing an aggravated range

sentence.   Commonwealth v. Fullin, 892 A.2d 843, 850 (Pa. Super.

2006). Thus, we may proceed to review the merits of Appellant’s claim.

     It is well-settled that “[s]entencing 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.”         Commonwealth v.

Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015).         Section 9781 of the

Judicial Code requires this Court to vacate a sentence and remand for

resentencing if the sentencing court imposed a sentence that is outside of

the sentencing guidelines and the sentence is unreasonable. 42 Pa.C.S.A. §

9781(c)(3). In addition, Section 9781 provides,

     ... In reviewing the record the appellate court shall have regard
     for:

     (1) The nature and circumstances of the offense and the history
     and characteristics of the defendant.

     (2) The opportunity of the sentencing court to observe the
     defendant, including any presentence investigation.

     (3) The findings upon which the sentence was based.

     (4) The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(d).

     While the sentencing court is required to consider the applicable

ranges set forth in the sentencing guidelines, the sentencing guidelines are

advisory, and when justified, a court acts well within its discretion to

sentence outside the recommended ranges.      Commonwealth v. Sheller,


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961 A.2d 187 (Pa. Super. 2008).      A trial court is permitted to impose a

sentence outside the ranges set forth in the sentencing guidelines if the

court demonstrates its awareness of the sentencing guidelines and states its

reasons for deviating from the guidelines on the record. Commonwealth v.

Bowen, 55 A.3d 1254, 1263–64 (Pa. Super. 2012).

      At Appellant’s sentencing hearing, the Commonwealth presented the

impact testimony of the victim’s mother, Betty Stewart.         In response,

defense counsel called Appellant’s mother and sister as witnesses.       Both

women gave statements that Appellant was a good man that made a

mistake. However, both women acknowledged “justice has to be done for

Shane” (the victim). N.T. Sentencing, 11/3/14, at 13-14.       Appellant also

called expert witness Ned Delaney, a licensed psychologist, who found

Appellant does not exhibit any personality disorders but noted Appellant had

“incidents of alcohol abuse from time to time.” N.T. at 11.    Appellant took

the stand, taking responsibility for his actions and admitting the victim was

his best friend.

      At the conclusion of the hearing, the trial judge indicated that she had

reviewed the presentence investigation report and all the testimony given at

the hearing. The trial judge emphasized that this was not Appellant’s first

DUI conviction and noted that Appellant was not only intoxicated, but driving

without a license. Emphasizing that a lesser sentence would “depreciate the

seriousness of this crime,” the trial court observed that Appellant fled the




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scene after finding his best friend dying on the ground and refused to take a

blood test upon his apprehension.

      Based on our review of the record, we find that the trial court

considered all relevant factors and provided adequate reasons for sentencing

Appellant outside of the sentencing guidelines.    As noted above, the trial

court had the benefit of a pre-sentence investigation report.        Prior to

imposing sentence, the trial court stated that it had considered the

sentencing guidelines and the nature of this particular crime. The trial judge

further noted on the record that she was deviating from the guidelines for

the several reasons, suggesting that Appellant’s “minimal consequences” for

his first DUI conviction did not successfully help rehabilitate Appellant or

dissuade him from driving under the influence on another occasion. The trial

judge emphasized that Appellant tried to avoid legal consequences for his

actions even when he had caused the fatal injuries of his best friend.

Accordingly, we conclude that the trial court did not abuse its discretion in

imposing its aggravated range sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/28/2016


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