J-S05003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

EUGENIA VALENTE,

                            Appellant                    No. 1280 MDA 2016


          Appeal from the Judgment of Sentence Entered July 6, 2016
             In the Court of Common Pleas of Lackawanna County
                           Criminal Division at No(s):
                           CP-35-CR-0002513-2015
                           CP-35-CR-0002514-2015
                           CP-35-CR-0002523-2015


BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                       FILED FEBRUARY 03, 2017

        Appellant, Eugenia Valente, appeals from the judgment of sentence of

an aggregate term of 12 to 36 months’ incarceration, followed by 6 years’

probation, imposed after she pled guilty in three separate cases to various

offenses.     On appeal, Appellant solely challenges certain discretionary

aspects of her sentence.       After careful review, we affirm.

        Briefly, Appellant’s charges stemmed from her entering the homes of

three different individuals and stealing jewelry from two of the homes, and a



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*
    Retired Senior Judge assigned to the Superior Court.
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purse containing $200 in cash from the other residence.1         Based on this

conduct, Appellant was charged, in three separate cases, with two counts of

burglary, 18 Pa.C.S. § 3502(a)(1); two counts of criminal trespass, 18

Pa.C.S. § 3503(a)(1)(i); three counts of theft by unlawful taking, 18 Pa.C.S.

§ 3921(a); and three counts of receiving stolen property, 18 Pa.C.S. §

3925(a).

       On April 11, 2015, Appellant entered guilty pleas, in all three cases, to

one count of theft by unlawful taking and two counts of criminal trespass;

the remaining charges were nolle prossed.        Appellant’s sentencing hearing

was deferred for the completion of a presentence investigation report (PSI).

On July 6, 2016, the court sentenced Appellant to serve consecutive terms

of 4 to 12 months’ incarceration, plus 2 years’ probation, in each of her

three cases. Thus, Appellant’s aggregate sentence totaled 12 to 36 months’

incarceration, followed by 6 years’ probation.

       Appellant filed a timely post-sentence motion, which the court denied.

She then filed a timely notice of appeal, and also complied with the trial

court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. The court filed a responsive opinion on September

27, 2016. Herein, Appellant presents two issues for our review:



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1
  For a more detailed recitation of the facts in each of Appellant’s three
cases, see Trial Court Opinion (TCO), 9/27/16, at 2-3.



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      A. Whether the sentences imposed were unduly excessive and
      harsh[?]

      B. Whether the sentencing court relied on impermissible factors,
      such as the number of victims and on the fact that Appellant
      failed to rehabilitate when her relapse was due to being
      prescribed by her doctor narcotic pain killers for injuries she
      sustained in an automobile accident when imposing sentence[?]

Appellant’s Brief at 4.

      Appellant’s two issues are interrelated, and therefore, we will address

them together. Both of her claims challenge the discretionary aspects of her

sentence. It is well-settled that,

      [c]hallenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right. Commonwealth v.
      Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
      challenging the discretionary aspects of his sentence must
      invoke this Court's jurisdiction by satisfying a four-part test:

         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. Evans, 901 A.2d 528, 533 (Pa. Super.
      2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006).
      Objections to the discretionary aspects of a sentence are
      generally waived if they are not raised at the sentencing hearing
      or in a motion to modify the                 sentence imposed.
      Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super.
      2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

      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)

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      inconsistent with a specific provision of the Sentencing Code; or
      (2) contrary to the fundamental norms which underlie the
      sentencing process.” Sierra, supra at 912–13.

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

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).

      In this case, Appellant filed a timely notice of appeal. Additionally, our

review of the record demonstrates that she sufficiently preserved her issues

in her timely-filed post-sentence motion, despite the Commonwealth’s

argument to the contrary.    We acknowledge that Appellant did not phrase

her claims precisely the same as she does herein. However, she adequately

indicated in the post-sentence motion that she was challenging her sentence

as being excessive, and also claiming that, in fashioning her sentence, the

court erred by relying on the number of victims, and on her failure to

rehabilitate. Accordingly, we conclude that Appellant sufficiently preserved

her sentencing claims before the trial court.

      Appellant has also included a Rule 2119(f) statement in her appellate

brief. Therein, she contends that the court erroneously imposed sentences

in the aggravated guideline range, where the circumstances of her case

“were neither so unique nor egregious” as to warrant a deviation from the

standard guideline ranges. Appellant’s Brief at 9. Appellant also claims that

the court improperly relied on “the number of victims … to justify the

departure from the standard range sentence[,]” despite that “she was

sentenced on each individual charge….”          Id.   We consider Appellant’s

arguments as presenting substantial questions for our review.              See


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Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011) (“A claim

that a sentence is manifestly excessive such that it constitutes too severe a

punishment raises a substantial question.”); Commonwealth v. Bowen,

975 A.2d 1120, 1122 (Pa. Super. 2009) (finding a substantial question

raised where the appellant contended that the court relied on             an

impermissible factor in imposing an aggravated range sentence) (citation

omitted).

     Before addressing the merits of Appellant’s claims, we note that,

     [i]n reviewing the decision of the sentencing court, our standard
     of review is well-settled:

        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. Rodda, 723 A.2d 212, 214 (Pa. Super.
     1999) (en banc) (quotations and citations omitted). “A
     sentencing court may consider any legal factor in
     determining that a sentence in the aggravated range
     should be imposed.” Commonwealth v. Stewart, 867 A.2d
     589, 592–93 (Pa. Super. 2005) (citing Commonwealth v.
     Duffy, 341 Pa. Super. 217, 491 A.2d 230, 233 (1985)). “In
     addition, the sentencing judge's statement of reasons on the
     record must reflect this consideration, and the sentencing
     judge's decision regarding the aggravation of a sentence will not
     be disturbed absent a manifest abuse of discretion.” Id. at 593.

Bowen, 975 A.2d at 1122 (emphasis added).




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       Here, Appellant complains that the court imposed a manifestly

excessive, aggravated range sentence by relying on two impermissible

factors - the number of victims, and her failure to rehabilitate.2   Notably,

Appellant makes no argument that these were not legal factors for the court

to consider. See id. Rather, she simply contends, without citation to any

authority, that the “court’s focus on the number of victims was in error and

[was] an abuse of discretion since she received separate sentences for each

charge[,]” and that the court completely failed to consider her successful

completion of “treatment court[,]” which contradicts its determination that

she was unable to rehabilitate. Appellant’s Brief at 13.

       Appellant’s legally unsupported arguments do not convince us that the

court abused its wide discretion in fashioning her sentence.     As the court

explains in its opinion, it

       stated on the record the reasons for the [s]entence imposed
       upon [Appellant].       The [c]ourt ordered a [p]resentence
       [i]nvestigation [r]eport and reviewed it thoroughly.         N.T.
       Sentencing, July 6, 2016, p. 10. As such, the [c]ourt was aware
       of [the] relevant information regarding the character and
       background of [Appellant]. Further, both [Appellant] and her
       attorney had the opportunity at sentencing to inform this [c]ourt
       of additional information they wanted considered. Id. [at] 4-10.
       The [c]ourt specifically said that [Appellant] was not being
       sentenced for relapsing, she was being sentenced for the crimes
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2
  Appellant did not raise, in her Rule 2119(f) statement, her argument that
the court erred by relying on her failure to rehabilitate. However, the
Commonwealth has not specifically objected to this omission and, therefore,
we will not deem Appellant’s claim waived on that basis.               See
Commonwealth v. Roser, 914 A.2d 447, 457 (Pa. Super. 2006).



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      that she committed whether or not she was on drugs. Id. [at
      10.] The [c]ourt considered that there were three separate
      victims of Appellant’s crimes.     Id.   Moreover, the [c]ourt
      considered the fact that [Appellant] has a history of stealing
      dating back to the 1980s.       [Id.]   The [c]ourt noted that
      [Appellant] has been given rehabilitative opportunities in the
      past, but that was not enough to deter [her] conduct. [Id.]

TCO at 10.

      The court’s explanation for the sentence it imposed demonstrates that

it did not abuse its discretion. Again, Appellant cites no case law to support

her claim that it was improper for the court to consider the fact that she

victimized three separate individuals.        Moreover, the court heard lengthy

discussions by both Appellant and her attorney regarding her history of drug

treatment, which they argued proved that Appellant “could stay clean and

sober.” N.T. Sentencing, 7/6/16, at 5. Notwithstanding these arguments,

the   court   concluded    that   Appellant’s     continued   criminal   conduct

demonstrated that “rehabilitation in and of itself has not worked to deter

[her] from future crimes….” Id. at 10. Additionally, the court stressed that

Appellant’s criminal “history shows that [she has] stolen in the past, going

back to 1987 right to 2015.”      Id.     Ultimately, the court determined that

aggravated    range   sentences   were     appropriate   based   on   Appellant’s

victimizing three separate individuals, her continued criminal conduct despite

the opportunities she had been given to rehabilitate herself, and her lengthy

criminal history. Appellant has not convinced us that the court abused its

discretion in this sentencing decision.




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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/3/2017




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