J. S64036/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
LUIS M. VELEZ-DIAZ,                         :
                                            :
                          Appellant         :     No. 725 MDA 2015

             Appeal from the Judgment of Sentence March 25, 2015
               In the Court of Common Pleas of Lancaster County
             Civil Division No(s): 15-0046 (ICC) CI-14-03545 (PFA)

BEFORE: FORD ELLIOTT, P.J.E., WECHT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                         FILED MARCH 17, 2016

        This case returns to us following our remand for counsel to address the

issue of the discretionary aspect of Appellant’s sentence either in a

supplement to his Anders1 brief or in an advocate’s brief.2 Appellant, Luis

M. Velez-Diaz, appeals from the judgment of sentence entered in the

Lancaster County Court of Common Pleas following his bench conviction of

*
    Former Justice specially assigned to the Superior Court.
1
  See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009); Commonwealth v. McClendon, 434
A.2d 1185 (Pa. 1981).
2
  In the Anders petition for leave to withdraw, counsel averred that
Appellant had waived the discretionary aspect of sentencing issue because
no post-sentence motion was filed with the trial court. However, the trial
court failed to advise Appellant of the right to file post-sentence motions.
Therefore, we found the issue was not waived. See Commonwealth v.
Malovich, 903 A.2d 1247, 1251-52 (Pa. Super. 2006).
J.S64036/15


indirect criminal contempt3 (“ICC”) of a Protection from Abuse (“PFA”) order

filed on May 28, 2014.      Appellant filed an advocate’s brief challenging the

discretionary aspects of his sentence.4 He avers the sentence is manifestly

excessive and therefore it should be vacated and the case remanded for

resentencing. We affirm.

        The trial court summarized the facts and procedural history of this

case as follows:

              On April 24, 2014, Jhira Montalvo (“[V]ictim”) filed a
           petition to obtain a [t]emporary PFA Order against
           [Appellant]. A final PFA Order was entered on May 28,
           2014. In addition to other prohibitions, Paragraph #3 of
           the final PFA Order prohibited [Appellant] from having any
           contact with [V]ictim and ordered [Appellant] to stay away
           from [V]ictim’s home for the duration of the order, and
           Paragraph #4 of the Final PFA Order prohibited [Appellant]
           from contacting [V]ictim by telephone or by any other
           means, including through third persons.

              On December 29, 2014, [V]ictim reported a PFA
           violation to the Lancaster City Police Bureau after receiving
           written communication from [Appellant]. At the time of
           the alleged violation, [Appellant] was . . . in the Lancaster
           County Prison on a charge of criminal trespass involving
           [V]ictim, in violation of the PFA order.[5] On March 13,

3
    23 Pa.C.S. § 6114(a).
4
    We note that the Commonwealth did not file a responsive brief.
5
   The trial court states that “[a]t the time of the alleged violation,
[Appellant] was serving a ten month term in the Lancaster County Prison on
a charge of criminal trespass involving [V]ictim . . . .” Trial Ct. Op.,
6/23/15, at 2. Our review of the record, however, reveals that the trial on
the charges of criminal contempt of the PFA had not taken place as of the
date of the preliminary arraignment or the ICC hearing. In the preliminary
arraignment, the magisterial district judge indicated that Appellant was in



                                       -2-
J.S64036/15


         2015, the Commonwealth filed an Indirect Criminal
         Complaint [“ICC”] for violation of a PFA Order against
         [Appellant]. On March 17, 2015, [Appellant] appeared

prison for ten months because the hearing was continued. See Crim.
Compl., 3/17/15, at 6 (unpaginated).   At the ICC hearing, Appellant
testified, inter alia, as follows:

         [Counsel for Appellant]: Now, you would agree with me
         that sending a letter─you sending a letter to [Victim]
         would be a violation of the protection from abuse order;
         correct?

         A: That I never send [sic] no letter to her.

         Q: That’s not my question. My question is, if you did, that
         would be a violation, wouldn’t it?

         A: Yes, I understand.

                                  *    *    *

         That’s why I’m taking [sic] other case to trial, as well.

                                  *    *    *

         Q: . . . December of 2014, when you were in the Lancaster
         County Prison, the reason that you were in Lancaster
         County Prison is because you were accused of criminal
         trespass; correct?

         A: Yes.

         Q: And the victim of that offense is [Victim]; correct?

         A: My ex-wife, yep.

N.T. ICC Hr’g, 3/25/15, at 15-16. Counsel stated that Appellant “is being
held in on his criminal charges, . . . and he has indicated on the record that
he intends to take the trial. His trial is scheduled, actually, Your Honor for
next month.” Id. at 19-20. The trial court’s categorization of Appellant’s
confinement at the time of the violation of the PFA does not affect our
disposition.



                                      -3-
J.S64036/15


          before a magisterial district judge via video for a
          [p]reliminary arraignment, at which point the case was
          sent to the Lancaster County Court of Common Pleas.

             On March 25, 2015, a hearing was held regarding
          [Appellant’s] charged count of ICC. According to [V]ictim,
          [Appellant] contacted her via the United States Postal
          Service by sending an envelope containing a card and a
          two-page letter. The final PFA Order entered in May 2014
          prohibited [Appellant] from making any contact with
          [V]ictim.

                                   *     *    *

          The court . . . found [Appellant] guilty . . . of one count of
          ICC . . . .

                                   *     *    *

          [On March 25, 2015, t]he court imposed a sentence of
          ninety days incarceration for one count of ICC,[6] followed
          by [ninety] days of probation.

Trial Ct. Op., 7/23/15, at 2, 4 (citations omitted).          This timely appeal

followed.

       On appeal, Appellant challenges the discretionary aspects of his

sentence.      Appellant contends the trial court’s sentence was manifestly

excessive and constituted too severe a punishment. Appellant’s Brief at 9.

He    claims   that   the   sentence   was   “clearly   unreasonable   under   the

circumstances of this case, as it was not consistent with the protection of the

public, the gravity of the offenses, and the rehabilitative needs of” Appellant.

Id.   Appellant argues that the court abused its discretion in sentencing

6
 Indirect criminal contempt is punishable by imprisonment of up to six
months. See 23 Pa.C.S. § 6114(b).



                                       -4-
J.S64036/15


Appellant to total confinement “for minimal, nonthreatening contact” with

Victim. Id. at 12. He avers the court sentenced Appellant “solely upon the

notion that Appellant should be ‘very clear on what the requirements are for

abiding by a PFA.’”7 Id.

     An appeal from the discretionary aspects of sentencing is not

guaranteed as a matter of right.     Commonwealth v. Mastromarino, 2

A.3d 581, 585 (Pa. Super. 2010).

        To reach the merits of a discretionary sentencing issue, we
        conduct a four-part analysis to determine: (1) whether
        appellant filed a timely notice of appeal, Pa.R.A.P. 902,
        903; (2) whether the issue was properly preserved at
        sentencing or in a motion to reconsider and modify
        sentence, 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[.]

Id. (citation omitted). “Our inquiry must focus upon the reasons for which

the appeal is sought, in contrast to the facts underlying the appeal, which

are necessary only to decide the appeal on the merits.” Commonwealth v.

Raven, 97 A.3d 1244, 1252-53 (Pa. Super.) (citations omitted), appeal

denied, 105 A.3d 736 (Pa. 2014).

     Instantly, Appellant timely appealed and did not waive the issue of the

discretionary aspect of his sentence for failure to preserve it.   See note 2


7
  We note that Appellant avers “[t]he [c]ourt indicated when formulating the
sentence, it considered the nature and circumstances of the underlying
offense . . . .” Id. at 12.




                                    -5-
J.S64036/15


supra. Appellant has included a Pa.R.A.P. 2119(f) statement in his brief.8

See Appellant’s Brief at 7-8.    Accordingly, we ascertain whether Appellant

has presented a substantial question.

      “A claim that a sentence is manifestly excessive such that it

constitutes too severe a punishment raises a substantial question.”

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

Commonwealth v. Mouzon, 812 A.2d 617, 624 (Pa. 2002)). A claim that

a sentencing court failed to consider the rehabilitative needs of the

defendant likewise presents a substantial question. See Commonwealth v.

Downing, 990 A.2d 788, 793 (Pa. Super. 2010).            We find Appellant has

raised a substantial question.

      Our review is governed by the following principles:

         [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. An abuse
         of discretion is more than just an error in judgment and,
         on appeal, the trial court will not be found to have abused
         its discretion unless the record discloses that the judgment
         exercised was manifestly unreasonable, or the result of
         partiality, prejudice, bias, or ill-will. More specifically, 42
         Pa.C.S.A. § 9721(b) offers the following guidance to the
         trial court’s sentencing determination:

            [T]he sentence imposed should call for confinement that
            is consistent with the protection of the public, the

8
  Appellant failed to indicate where his sentence fell in the sentencing
guidelines. See Commonwealth v. Dodge, 77 A.3d 1263, 1269 (Pa.
Super. 2013), appeal denied, 91 A.3d 161 (Pa. 2014). However, because
the Commonwealth has not objected to the adequacy of Appellant’s
argument, we decline to find waiver. See id. at 1271.



                                      -6-
J.S64036/15


           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.A. § 9721(b).

        Furthermore,

           [s]ection 9781(c) specifically defines three instances
           in which the appellate courts should vacate a
           sentence and remand: (1) the sentencing court
           applied the guidelines erroneously; (2) the sentence
           falls within the guidelines, but is “clearly
           unreasonable” based on the circumstances of the
           case; and (3) the sentence falls outside of the
           guidelines and is “unreasonable.”        42 Pa.C.S. §
           9781(c). Under 42 Pa.C.S. § 9781(d), the appellate
           courts must review the record and consider the
           nature and circumstances of the offense, the
           sentencing court’s observations of the defendant, the
           findings that formed the basis of the sentence, and
           the sentencing guidelines. The weighing of factors
           under 42 Pa.C.S. § 9721(b) is exclusively for the
           sentencing court, and an appellate court could not
           substitute its own weighing of those factors. The
           primary consideration, therefore, is whether the
           court imposed an individualized sentence, and
           whether the sentence was nonetheless unreasonable
           for sentences falling outside the guidelines, or clearly
           unreasonable for sentences falling within the
           guidelines, pursuant to 42 Pa.C.S. § 9781(c).

Commonwealth v. Bricker, 41 A.3d 872, 875-76 (Pa. Super. 2012)

(alterations and some citations omitted).

           A charge of indirect criminal contempt consists of a
        claim that a violation of an Order or Decree of court
        occurred   outside    the   presence    of   the   court.
        Commonwealth v. Padilla, 885 A.2d 994 (Pa. Super.
        2005). “Where a PFA order is involved, an indirect
        criminal contempt charge is designed to seek
        punishment for violation of the protective order.” Id. at
        996.


                                    -7-
J.S64036/15



Commonwealth v. Brumbaugh, 932 A.2d 108, 110 (Pa. Super. 2007)

(emphasis added).

      At the hearing, Victim testified that she was in a relationship with

Appellant for approximately three years. N.T., 3/25/15, at 5. She testified

she “used to be married” to Appellant.       Id.   Appellant testified that in

December of 2014, he was incarcerated in Lancaster County Prison because

he was accused of criminal trespass. Id. at 16. The victim of that offense

was Victim in the case sub judice. Id. The Commonwealth indicated to the

court that Appellant was “also being held on a parole violation.” Id. at 20.

      The Commonwealth informed the court of Appellant’s criminal history,

including, but not limited to, receiving stolen property, a possessory drug

offense, fleeing and attempting to elude police, accidents involving damage

to attended vehicles, recklessly endangering another person, and driving

under the influence. Id. at 20-21. The Commonwealth stated:

         [Appellant] was convicted of Felony 2 criminal trespass
         and simple assault in 2011. That was a domestic violence
         offense involving a different girlfriend wherein he broke
         into her house, and then when he was inside the house, it
         was a fairly significant beating. . . .

            [Appellant] was incarcerated on a [parole violation] for
         those offenses as [sic] part of the time that he was in
         Lancaster County Prison. I would also tell the [c]ourt that
         the prior victim had filed three separate protection from
         abuse actions against [Appellant.]

Id. at 21.

      The sentencing court opined:


                                     -8-
J.S64036/15


         The letters themselves do not contain any threats or
         harassing statements; however, . . . not only am I very
         clear when a PFA is entered as to what the requirements
         are, I believe based upon the history that you have,
         that you’re very clear on what the requirements are for
         abiding by a PFA.

            I’m going to sentence you to a period of 90 days
         incarceration, followed by a period of 90 days probation . .
         ..

            That will not be enough time to complete the domestic
         violence intervention group, but I do want you to─you will
         be subject to the special conditions of having no contact
         with [Victim], not being in the vicinity of her place of
         employment, her residence. You’ll need to stay 100 yards
         away from her. If you are out of prison after my sentence
         has run, I am going to direct that you have a psychological
         evaluation and follow up with any treatment that may be
         ordered. You’ll need to maintain full-time employment
         unless you’re excused by your probation officer.

Id. at 22-23 (emphasis added).

       Appellant   violated   the   PFA    order   by   contacting   Victim.   See

Brumbaugh, 932 A.2d at 110. The court considered the facts of the case

and imposed an individualized sentence that was not unreasonable.              See

Bricker, 41 A.3d at 875-76. We discern no abuse of discretion. See id. at

875.

       Judgment of sentence affirmed.

       Wecht, J. did not participate in the consideration or decision of this

memorandum.




                                          -9-
J.S64036/15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/17/2016




                          - 10 -
