J-S18043-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                  Appellee               :
                                         :
                  v.                     :
                                         :
LUIZ MANUEL VELEZ-DIAZ,                  :
                                         :
                  Appellant              :     No. 1365 MDA 2015

            Appeal from the Judgment of Sentence July 10, 2015
             in the Court of Common Pleas of Lancaster County,
            Criminal Division, at No(s): CP-36-CR-0000182-2012
                          CP-36-CR-0002856-2014

BEFORE:     BOWES, LAZARUS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                    FILED APRIL 15, 2016

      Luiz Manuel Velez-Diaz (Appellant) appeals from the judgment of

sentence entered following the revocation of his probation. We affirm.

      The probation violation court summarized the underlying background

of this case as follows.

            On April 20, 2015, [Appellant] appeared before the [c]ourt
      on information number 2856-2014 for a trial on one count of
      criminal trespass, a felony of the second degree. On April 21,
      2015, following a two day trial, a jury found Appellant guilty of
      criminal trespass. The [c]ourt entered an order directing that a
      Pre-Sentence Investigation (“PSI”) report be completed prior to
      the imposition of sentence.

            On July 10, 2015, upon completion of the PSI report,
      Appellant appeared before the court for sentencing on the
      criminal trespass conviction [at information number 2856-2014],
      as well as sentencing on a parole and probation violation on
      information number 0182-2012. [Appellant had previously
      stipulated to the probation violation at criminal information
      0182-2012, and his sentencing for that violation was deferred

*Retired Senior Judge assigned to the Superior Court.
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      until after disposition of criminal information 2856-2014]. On
      information number 2856-2014, [] Appellant was sentenced to
      not less than 16 months nor more than five years in [a] state
      correctional institution (“SCI”). On count one of information
      number 0182-2012, criminal trespass (F2), Appellant’s split
      sentence was revoked, his parole was immediately terminated,
      and he was sentenced to not less than 16 months nor more than
      three years in [an] SCI for the probation violation. On count two
      of information number 0182-2012, simple assault (M2),
      Appellant was sentenced to serve the unexpired balance of his
      original sentence. The sentences on both counts were made
      concurrent to each other, but were made consecutive to the
      sentence on the new criminal trespass charge. The aggregate
      sentence imposed was 32 months to eight years in [an] SCI.
      Appellant was ineligible for the Recidivism Risk Reduction
      Incentive program (“RRRI”), but he received credit for time
      served on the criminal trespass sentence.

Probation   Violation   Court   Opinion,   9/18/2015,   at   1-2   (unnecessary

capitalization and footnote omitted).

      On July 17, 2015, Appellant filed a post-sentence motion, which was

denied by the probation violation court on July 31, 2015. This timely appeal

followed. Both Appellant and the court complied with Pa.R.A.P. 1925.

      Appellant asks this Court to consider whether the violation court

abused its discretion by imposing a sentence that is manifestly excessive

and unreasonable. Appellant’s Brief at 8. It is within this Court’s scope of

review to consider challenges to the discretionary aspects of an appellant’s

sentence in an appeal following a revocation of probation. Commonwealth

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

      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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     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.[] § 9781(b).

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (citation

omitted).

     The record reflects that Appellant timely filed a notice of appeal and

that Appellant preserved this issue by including it in his motion for

reconsideration of his sentence.   Moreover, Appellant has included in his

brief a statement pursuant to Pa.R.A.P. 2119(f). We now turn to whether

Appellant has presented a substantial question for our review.

     The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.     Commonwealth v. Paul, 925 A.2d

825, 828 (Pa. Super. 2007). “A substantial question exists only when the

appellant advances a colorable argument that the sentencing judge’s 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.” Griffin, 65 A.3d at 935 (citation and quotation marks

omitted).

     In his 2119(f) statement, Appellant makes a bald assertion that his

aggregate sentence is excessive and inappropriate under the Sentencing




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J-S18043-16


Code.     Appellant’s Brief at 9-10.     He fails to specify which particular

provision of the Code was violated or which aspect of his sentence was

contrary to the fundamental norms underlying the sentencing scheme. Id.

It is well-settled that bald claims of excessiveness based on the consecutive

nature of sentences do not present a substantial question. Commonwealth

v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013). Further, our Supreme

Court has held that

        only where the appellant’s Rule 2119(f) statement sufficiently
        articulates the manner in which the sentence violates either a
        specific provision of the sentencing scheme set forth in the
        Sentencing Code or a particular fundamental norm underlying
        the sentencing process, will such a statement be deemed
        adequate to raise a substantial question so as to permit a grant
        of allowance of appeal of the discretionary aspects of the
        sentence.

Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002). Accordingly,

because Appellant has failed to raise a substantial question, he is not

entitled to relief.

        Judgment of sentence affirmed.

        Judge Lazarus joined.

        Judge Bowes concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/15/2016



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