J-S11025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JOEL VAZQUEZ

                            Appellant                No. 1241 EDA 2015


           Appeal from the Judgment of Sentence February 19, 2013
               In the Court of Common Pleas of Lehigh County
             Criminal Division at No(s): CP-39-CR-0003099-2012


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                 FILED MAY 06, 2016

        Joel Vazquez appeals nunc pro tunc from the judgment of sentence

imposed February 19, 2013, in the Lehigh County Court of Common Pleas.

The court sentenced Vazquez to a term of 70 months to 30 years’

imprisonment, following his negotiated guilty plea to two counts of

aggravated assault and one count of recklessly endangering another person

(“REAP”).1    On appeal, he challenges only the discretionary aspects of his

sentence. For the reasons below, we affirm.

        The facts underlying Vazquez’s guilty plea are summarized by the trial

court as follows:


____________________________________________


1
    18 Pa.C.S. §§ 2702(a)(1) and (a)(4), and 2705, respectively.
J-S11025-16


            On June 19, 2012, Mandy and Brian Bailey and their four
     day old child were returning to their home located in Whitehall,
     Lehigh County, Pennsylvania when they encountered Jessica
     Vazquez and [her husband, Joel Vazquez].           [Jessica] was
     dropping off her two minor children that she shares with Mr.
     Bailey for a visit. As the Baileys and the children were walking
     towards their apartment, [Vazquez] exited his car and began
     yelling at them.     [Vazquez] first approached Mandy Bailey,
     pushed her in the chest and ripped her shirt. Brian Bailey went
     to his wife to assist her and [Vazquez] attacked him, stabbing
     him in the back with a steak knife. At the time, Mr. Bailey was
     holding the four day old infant in a car seat and the force of
     [Vazquez’s] blow caused him to drop the car seat. Mrs. Bailey
     watched as the infant seat rolled over on the sidewalk and she
     screamed for help.

            While neighbors attempted to call 9-1-1, Mrs. Bailey
     realized that she was bleeding profusely from her chest area,
     having been stabbed in the initial altercation with [Vazquez].
     Witnesses in the area attempted to help the Baileys and their
     children.

          While waiting for EMS to arrive, [Vazquez] again
     attempted to stab Mrs. Bailey and was overheard stating that he
     was going to “finish this.” [Vazquez] then stabbed himself in the
     stomach. Eyewitnesses identified Vazquez as the individual who
     stabbed the Baileys.

          The Baileys were taken to the hospital where it was
     determined that the stab wound to Mandy Bailey’s chest had
     missed all of her vital organs, but was within inches of her heart.
     She was treated with stitches. Mr. Bailey’s stab wound to his
     back was treated with medical staples. Fortunately, all of the
     minor children were physically unharmed.

          The steak knife in question was recovered at the scene and
     was 4 to 6 inches in length.

Trial Court Opinion, 7/8/2015, at 3-4.




                                    -2-
J-S11025-16



       Vazquez was arrested and charged with attempted homicide (two

counts), aggravated assault (four counts), simple assault (two counts) and

REAP.2       On September 25, 2012, he filed a notice of insanity or mental

infirmity,     averring    that    he    suffers   from   paranoid   schizophrenia.

Nevertheless, despite having documented evidence of his mental illness,

Vazquez decided to proceed with a guilty plea.3 As noted above, on January

18, 2013, Vazquez entered a negotiated guilty plea to two counts of

aggravated assault and one count of REAP.4 As part of the plea agreement,

the parties agreed Vazquez would receive a sentence in the standard range

of the sentencing guidelines, and one count of aggravated assault would be

subject to a deadly weapon-used enhancement. See N.T., 1/18/2013, at 2.

       On February 19, 2013, the trial court sentenced Vazquez to a term of

54 months to 20 years’ imprisonment for one count of aggravated assault, a

____________________________________________


2
  18 Pa.C.S. §§ 901/2501(a), 2702(a)(1) and (a)(4), 2701(a)(1), and 2705,
respectively.
3
  At the plea hearing, Vazquez explained he was hospitalized in August of
2011 after he began “stabbing” himself. N.T., 1/18/2013, at 13. It was
during that hospitalization when he was first diagnosed with schizophrenia.
Id. at 11. He testified he was hospitalized again in November of 2011 after
he “freaked out and [] grabbed [his] wife’s kids and [] threatened them with
a knife.” Id. at 15. Vazquez acknowledged that he had been off his
medication for four to six months when the incident at issue occurred. Id.
at 17.
4
  Counsel informed the trial court at the plea hearing that Vazquez chose to
plead guilty, rather than guilty but mentally ill, because he believed that
such a plea would “adversely affect his opportunity for parole.” Id. at 5.



                                           -3-
J-S11025-16



consecutive term of 16 months to 10 years’ imprisonment for the second

count of aggravated assault, and a concurrent term of one month to two

years’ imprisonment for the count of REAP.              In accordance with the plea

agreement, all of the sentences were imposed within the standard range of

the sentencing guidelines.5 On March 1, 2013, Vazquez filed a pro se motion

to modify his sentence, which the trial court denied on March 5, 2013. No

appeal was filed.

        On October 15, 2013, Vazquez sent a pro se letter to the trial court,

requesting permission to file a direct appeal nunc pro tunc. The court denied

Vazquez’s request that same day. Thereafter, on November 4, 2013,

Vazquez     filed   a   timely   PCRA6     petition,   raising   numerous   claims   of

ineffectiveness of counsel, including counsel’s failure to file a direct appeal.

PCRA counsel was appointed and filed an amended petition on February 25,

2014, asserting plea counsel’s ineffectiveness for failing to file post-sentence
____________________________________________


5
  As the trial court explained in its opinion, Vazquez had a prior record score
of “0,” so that the standard range sentence for the charge of aggravated
assault under 18 Pa.C.S. § 2702(a)(1), with the deadly weapon-used
enhancement, was 40 to 54 months’ imprisonment, while the standard
range for his conviction under Subsection (a)(4), without any enhancement,
was nine to 16 months imprisonment. See Trial Court Opinion, 7/8/2015,
at 7. See also 204 Pa. Code §§ 303.15, 303.16(a), and 303.17(b).
Further, the standard range for Vazquez’s conviction of REAP was restorative
sanctions to one month imprisonment. Id. See also 204 Pa. Code §§
303.15 and 303.16(a). Accordingly, each sentence was imposed at the top
end of the standard range of the sentencing guidelines.
6
    Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.




                                           -4-
J-S11025-16



motions or a direct appeal. Following a hearing on June 20, 2014, the PCRA

court denied Vazquez’s PCRA petition.

       On appeal, a panel of this Court reversed the order of the PCRA court,

and remanded the case with instructions that Vazquez be permitted to file a

direct appeal nunc pro tunc. Commonwealth v. Vazquez, 121 A.3d 1124

(Pa. Super. 2015) (unpublished memorandum).7 On April 8, 2015, the trial

court entered an order permitting Vazquez to file a direct appeal nunc pro

tunc within 30 days. See Order, 4/8/2015. This timely appeal followed.8

       The sole issue raised on appeal is a challenge to the discretionary

aspects of Vazquez’s sentence.9 “A challenge to the discretionary aspects of

____________________________________________


7
  Specifically, the panel determined trial counsel failed to consult with
Vazquez about filing a direct appeal, particularly since counsel “admitted
receiving the pro se [post-sentence] motion before the expiration of the
appeal period.”      Vazquez, supra, 121 A.3d 1124 (unpublished
memorandum at 8).
8
  On May 4, 2015, the trial court ordered Vazquez to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Vazquez
complied with the court’s directive and filed a concise statement on May 18,
2015.
9
  It is well-settled that “where a defendant pleads guilty pursuant to a plea
agreement specifying particular penalties, the defendant may not seek a
discretionary     appeal    relating  to  those    agreed-upon    penalties.”
Commonwealth v. Brown, 982 A.2d 1017, 1019 (Pa. Super. 2009), appeal
denied, 990 A.2d 726 (Pa. 2010). However, a defendant may seek a
discretionary appeal of those sentencing terms that were not negotiated.
Id. Here, the only agreed-upon sentencing term was that the minimum
sentences imposed would be within the standard range of the sentencing
guidelines.




                                           -5-
J-S11025-16



a sentence must be considered a petition for permission to appeal, as the

right to pursue such a claim is not absolute.”   Commonwealth v. Hoch,

936 A.2d 515, 518 (Pa. Super. 2007) (citation omitted). To reach the merits

of a discretionary issue, this Court must determine:

      (1) whether the appeal is timely; (2) whether Appellant
      preserved his issue; (3) whether Appellant’s brief includes a
      concise statement of the reasons relied upon for allowance of
      appeal with respect to the discretionary aspects of sentence; and
      (4) whether the concise statement raises a substantial question
      that the sentence is appropriate under the sentencing code.

Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)

(citation omitted), appeal denied, 81 A.3d 75 (Pa. 2013).

      Vazquez complied with the procedural requirements for this appeal by

filing a timely pro se post-sentence motion for modification of sentence, and

a notice of appeal nunc pro tunc, and by including in his appellate brief a

statement of reasons relied upon for appeal pursuant to Commonwealth v.

Tuladziecki, 522 A.2d 17 (Pa. 1987), and Pa.R.A.P. 2119(f). Therefore, we

must determine whether Vazquez raised a substantial question justifying our

review.

      A substantial question exists when an appellant sets forth “a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)

(citation omitted).   In the present case, Vazquez contends the sentence

                                    -6-
J-S11025-16


imposed by the trial court was “manifestly excessive, and thus unjust, and

ordered without proper consideration of mitigating factors such as [his] lack

of   criminal   history,   mental       health   problems   and   his    acceptance   of

responsibility.” Vazquez’s Brief at 8. He further asserts the trial court failed

to “adequately evaluate [his] personal characteristics … and his potential for

rehabilitation.” Id. at 13.

       “[A]n allegation that the sentencing court failed to consider mitigating

factors generally does not raise a substantial question for our review.”

Commonwealth v. Rhoades, 8 A.3d 912, 918-919 (Pa. Super. 2010),

appeal denied, 25 A.3d 328 (Pa. 2011), cert. denied, 132 S.Ct. 1746 (U.S.

2012). However, this Court has held that an “excessive sentence claim[ ] in

conjunction with an assertion that the court did not consider mitigating

factors[,]”     does   present      a    substantial   question    for    our   review.

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015),

appeal denied, 125 A.3d 1198 (Pa. 2015), quoting Commonwealth v.

Dodge, 77 A.3d 1263, 1272 (Pa. Super. 2013) (en banc), appeal denied, 91

A.3d 161 (Pa. 2014). Therefore, we proceed to an examination of Vazquez’s

argument on appeal.

       Our standard of review of claims challenging the discretionary aspects

of sentencing is well-established:

       Sentencing is a matter vested in the sound discretion of the
       judge, and will not be disturbed on appeal absent a manifest
       abuse of discretion. An abuse of discretion is not shown merely
       by an error in judgment. Rather, the appellant must establish,

                                            -7-
J-S11025-16


      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. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation

omitted), appeal denied, 980 A.2d 607 (Pa. 2009).

      Pennsylvania’s Sentencing Code makes clear that, when sentencing a

defendant, a trial court “shall follow the general principle that the sentence

imposed should call for confinement that is consistent with the protection of

the public, the gravity of the offense as it relates to the impact on the life of

the victim and on the community, and the rehabilitative needs of the

defendant.”   42 Pa.C.S. § 9721(b).      The Sentencing Code also mandates

that an appellate court must vacate a sentence if it finds that the sentence,

while within the applicable guidelines, “involve[d] circumstances where the

application of the guidelines would be clearly unreasonable[.]” 42 Pa.C.S. §

9781(c)(2).

      Here, the trial court explained the rationale for the sentence it imposed

as follows:

             At the time of Sentencing, the Court received and reviewed
      a Pre-Sentence Investigation Report (hereinafter “PSI”), which
      contained     [Vazquez’s]   family    and    work   history,  the
      Commonwealth and [Vazquez’s] version of the events giving rise
      to the instant matter, [Vazquez’s] mental health diagnoses of
      Schizophrenia and Bi-Polar Disorder, and Sentencing Guidelines.
      Further the Court heard testimony from Mandy Bailey, Brian
      Bailey, Jessica Vazquez, and [Vazquez]. Mr. and Mrs. Bailey
      testified as to how the events of June 9, 2012 had affected them
      both mentally and physically and the toll the entire incident had
      taken on the children who witnessed the incident. Mrs. Vazquez

                                      -8-
J-S11025-16


       testified that [Vazquez] suffers from mental illness but that when
       he takes his prescribed medication that he is a loving husband
       and father. She explained that on the day of the incident, he
       was without his medication. [Vazquez] testified that he had
       suffered no misconducts while awaiting his sentence and that at
       the time of the incident he, in his own opinion, was suffering a
       psychotic episode. He told the Court that he had had prior
       mental health commitments. He also expressed remorse for the
       victims.

            At the conclusion of the testimony, the Court explained its
       reasoning for imposition of the sentence:

          I appreciate that you have a mental illness.         It was
          previously diagnosed. You were prescribed medication.
          You were not vigilant in maintaining your medication. You
          let it lapse. You smoked pot. You smoked pot to a degree
          that made you aggressive and paranoid, which is really an
          extreme.[10] Most pot smokers just chill in front of the TV,
          but you wanted more, you needed more, it affected your
          behavior, it affected your judgment and at the end of the
          day, Mr. Vazquez, … the community has the right to be
          protected from you, the Baileys have the right to some
          peace of mind, which I’m sure they don’t have and what
          happens to you is really somewhere down the list. I hope
          that you are able to maintain good mental health. I hope
          that you will be treated well. I hope that you’ll get your
          medication. I hope that you will have the opportunity for
          therapy, for education, for whatever kind of training, but
          at the end of the day, I don’t really care, quite frankly.
          Because you have behaved in the most bestial way. There
          could be no good reason, there could be no issue between
____________________________________________


10
   We assume the fact that Vazquez smoked pot on the date of the assault is
included in his version of the incident as recorded in the PSI. Unfortunately,
the PSI is not included in the certified record on appeal.                See
Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (“Our law is
unequivocal that the responsibility rests upon the appellant to ensure that
the record certified on appeal is complete in the sense that it contains all of
the materials necessary for the reviewing court to perform its duty.”), appeal
denied, 916 A.2d 632 (Pa. 2007). Nevertheless, Vazquez does not dispute
this fact in his brief.



                                           -9-
J-S11025-16


         you and the Baileys that justified escalating to this level of
         violence and horror. None.

      [N.T., 2/19/2013, at 37-38]. …

             The sentence imposed clearly reflected the Court’s concern
      for protection of the public, the gravity of the offense (i.e. the
      stabbing in the chest and back) as it relates to the actual victims
      and the children who witnessed the brutal attack, and
      [Vazquez’s] underlying mental health diagnosis.             Although
      significant in the amount of time imposed, the Court did not
      abuse its discretion, nor was the sentence manifestly
      unreasonable, or the result of partiality, prejudice, bias or ill-will.

Trial Court Opinion, 7/8/2015, at 7-9.

      We find no reason to disturb the sentence imposed by the trial court.

First, it is clear from a review of the court’s opinion, as well as the

sentencing transcript, that the court thoroughly reviewed and thoughtfully

considered the PSI prepared prior to sentencing.          It is well-settled that

where a trial court had the benefit of a pre-sentence investigation report, we

will presume the trial court was “aware of all appropriate sentencing factors

and considerations.” Commonwealth v. Downing, 990 A.2d 788, 794 (Pa.

Super. 2010) (citation omitted).

      Moreover, in this case, the court also had the benefit of a psychological

evaluation of Vazquez, which was prepared in anticipation that he would

enter a plea of guilty but mentally ill.    N.T., 2/19/2013, at 22.      However,

trial counsel explained at the guilty plea hearing that after an “extensive

conversation” with Vazquez, his client was “pretty adamant” that he wanted

to enter a “straight guilty plea.”    N.T., 1/18/2013, at 5.      Counsel further

stated Vazquez believed a plea of “guilty but mentally ill [would] adversely



                                      - 10 -
J-S11025-16



affect his opportunity for parole.”            Id.   In any event, the psychological

evaluation stated Vazquez suffers from “Schizophrenia – paranoid type with

command       delusions[.]”11        N.T.,     2/19/2013,    Exhibit   D-1,   Forensic

Psychological Evaluation Mental Status, at 5. Therefore, the court was well

aware of Vazquez’s mental health issues at the time of sentencing.

       Under the facts of this case, we simply cannot conclude Vazquez’s

sentence was manifestly excessive. The Commonwealth presented evidence

at the sentencing hearing concerning the significant non-physical injuries

that resulted from Vazquez’s actions. Brian Bailey testified that his children

with Jessica Vazquez, who witnessed the brutal attack, continue to suffer

from nightmares and an extreme fear of knives.12 N.T., 219/2013, at 15-16.

Brian Bailey also testified that he had been granted a protection from abuse

order against Vazquez with respect to those children in November of 2011,



____________________________________________


11
   The evaluation also concluded that at the time of the crime, Vazquez “was
laboring under such a defect or reason, from disease of the mined, as not to
know the nature and quality of the act he was doing, or, if he did know it,
that he did not know [what] he was doing [] was wrong.” N.T., 2/19/2013,
Exhibit D-1, Forensic Psychological Evaluation Mental Status, at 5. The trial
court conducted an extensive colloquy with Vazquez, and his trial counsel, to
ensure Vazquez understood the evaluation, as well as the potential plea of
guilty but mentally ill, which he chose to forego. See N.T., 1/18/2013, at
23-28.
12
  The children were five and eight years old at the time of the sentencing
hearing. N.T., 2/19/2013, at 15-16.




                                          - 11 -
J-S11025-16



after Vazquez held a knife to Bailey’s then four-year-old daughter’s throat.13

Id. at 16. Brian Bailey explained that Vazquez’s actions have also affected

his children’s relationship with their mother, Vazquez’s wife, because

Vazquez made “it very difficult for [her] to spend time with them.” Id. The

trial court reiterated that sentiment when it explained that Vazquez “ruined

the relationship that [his wife is] able to have with her children.” Id. at 36.

See id. at 36-37 (“I would have to believe that even if she is able to get

unsupervised visits with them as much as they love her, they will always

have in the back of their minds where are you in all of this? Do they have to

be afraid of you?”).

       Accordingly, our review of the certified record, the parties’ briefs and

the relevant case law, reveals no abuse of discretion on the part of the trial

court in imposing an aggregate sentence of 70 months to 30 years’

imprisonment for Vazquez’s brutal assault on the Baileys in front of

Vazquez’s stepchildren.

       Judgment of sentence affirmed.




____________________________________________


13
  As noted supra, this act precipitated Vazquez’s second hospitalization.
See supra, n.3, citing N.T., 1/18/2013, at 15.



                                          - 12 -
J-S11025-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/2016




                          - 13 -
