J-S61023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANGEL L. VELEZ                             :
                                               :
                       Appellant               :   No. 2401 EDA 2017

            Appeal from the Judgment of Sentence December 1, 2015
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0001594-2011,
                            CP-51-CR-0012119-2009

BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY BOWES, J.:                            FILED NOVEMBER 29, 2018

       Angel L. Velez appeals from the aggregate judgment of sentence of eight

to sixteen years imprisonment imposed after Appellant violated the terms of

his probation.1 We affirm.

       The trial court summarized the history of this case as follows:

             On November 4, 2009, [Appellant] pled guilty before this
       court to one count of possession with intent to deliver on docket
       CP-51-CR-0012119-2009.        On that same day, this court
       sentenced [Appellant] to six to twenty-three months’
       incarceration with immediate parole and one year of probation.
       On April 7, 2010, following a violation of probation (“VOP”)
       hearing, [Appellant’s] probation was revoked and he was
       sentenced to three years’ probation.       On October 6, 2010,
       following a VOP hearing, [Appellant’s] probation was again
       revoked and he was sentenced to eleven-and-a-half to twenty-
       three months’ incarceration followed by five years’ probation. On
____________________________________________


1 The sentence in these cases runs concurrently with another sentence of five
to ten years imposed for firearms violations at CP-51-CR-0008567-2013. See
N.T. Sentencing, 12/1/15, at 21.
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      April 14, 2011, [Appellant] pled guilty before this court to one
      count of aggravated assault on docket CP-51-CR-0001594-2011.
      On that same day, [Appellant] was sentenced to eleven-and-a-
      half to twenty-three months’ incarceration followed by two years’
      probation. On February 6, 2015[, Appellant] pled guilty to one
      count of prohibited possession of a firearm. On December 1,
      2015, [Appellant] was sentenced to five to ten years’ incarceration
      for the firearms violation. On that same day, having found that
      [Appellant’s] firearms case put him in direct violation of his
      probation, this court revoked probation and sentenced [Appellant]
      to four to eight years’ incarceration on both CP-51-CR-0012119-
      2009 and CP-51-CR-0001594-2011, for an aggregate sentence of
      eight to sixteen years’ incarceration to run concurrent to the
      firearms sentence.

            [Appellant] filed a Motion for Reconsideration of Sentence
      on both VOP dockets on December [11], 2015. These motions
      were denied by operation of law on April 12, 2016. No direct
      appeal was taken. On April 25, 2016, [Appellant] filed a petition
      pursuant to the Post Conviction Relief Act (“PCRA”). On April 7,
      2017, [Appellant] filed an amended PCRA petition. On June 26,
      2017, this court granted [Appellant]’s PCRA petition and
      reinstated his appellate rights nunc pro tunc. On July 26, 2017,
      [Appellant] filed a notice of appeal to the Superior Court.

Trial Court Opinion, 1/11/18, at unnumbered 1-2 (citations, footnote,

unnecessary capitalization, and repetition of values in numerical form

omitted). Both Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant presents the following question for our review: “Did The

Honorable Rayford A. Means abuse his discretion in sentencing [Appellant] to

what appears to have been a manifestly excessive sentence?”        Appellant’s

brief at 3.

      The following principles apply to our consideration of whether

Appellant’s claim raises a viable challenge to the discretionary aspects of his

sentence.

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      An appellant is not entitled to the review of challenges to the
      discretionary aspects of a sentence as of right. Rather, an
      appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction. We determine whether the
      appellant has invoked our jurisdiction by considering the following
      four factors:

            (1) whether appellant has filed a timely notice of
            appeal; (2) whether the issue was properly preserved
            at sentencing or in a motion to reconsider and modify
            sentence; (3) whether appellant’s brief has a fatal
            defect; and (4) whether there is a substantial question
            that the sentence appealed from is not appropriate
            under the Sentencing Code.

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa.Super. 2014)

(citations omitted).

      Appellant filed a timely post-sentence motion seeking reconsideration of

his sentence, and a timely notice of appeal after his direct appeal rights were

reinstated. Appellant’s brief contains a statement of reasons relied upon for

his challenge to the discretionary aspects of his sentence as required by

Pa.R.A.P. 2119(f).

      As to whether Appellant’s claim presents a substantial question, he

avers that his aggregate sentence is manifestly unreasonable and excessive.

He contends that the court failed to consider his individual circumstances and

mitigating factors (e.g., his troubled background, that he had been addicted

to drugs since age thirteen, and that he was only nineteen when he entered

his original guilty plea), and rather focused solely on the seriousness of the

offense. Appellant’s brief at 7-9. Appellant argues that, because he had never

been sentenced to state incarceration before, and faces a term of five to ten


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years imprisonment for firearms charges in a third, 2013 case, he will have

sufficient time “to complete drug programs, learn a trade that can finally help

him achieve gainful employment, and address his learning disabilities and earn

a GED,” without the additional, consecutive time imposed by the VOP court.

Id. at 8-9.

      We conclude that Appellant has raised a substantial question, and hence

proceed to address the merits of his claim. See, e.g., Commonwealth v.

Caldwell, 117 A.3d 763, 770 (Pa.Super. 2015) (en banc) (“[W]e conclude

that Appellant’s challenge to the imposition of his consecutive sentences as

unduly excessive, together with his claim that the court failed to consider his

rehabilitative needs upon fashioning its sentence, presents a substantial

question.”).

      “When reviewing sentencing matters, this Court must accord the

sentencing court great weight as it is in best position to view the defendant’s

character, displays of remorse, defiance or indifference, and the overall effect

and nature of the crime.” Commonwealth v. Ventura, 975 A.2d 1128, 1134

(Pa.Super. 2009). “We cannot re-weigh the sentencing factors and impose

our judgment in the place of the sentencing court.”       Commonwealth v.

Macias, 968 A.2d 773, 778 (Pa.Super. 2009). Rather, we review the trial

court’s determination for an 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

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      partiality, prejudice, bias or ill will, or arrived at a manifestly
      unreasonable decision.

Antidormi, supra at 760.

      “When imposing sentence, a court is required to consider the particular

circumstances of the offense and the character of the defendant.              In

considering these factors, the court should refer to the defendant’s prior

criminal record, age, personal characteristics and potential for rehabilitation.”

Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa.Super. 2014) (citations

and quotation marks omitted).

      The trial court addressed Appellant’s claim as follows.

      [Appellant’s] prior record score, probation violations, and criminal
      history indicate that it is likely that he will commit another crime
      if he is not imprisoned[.] This court also concluded that, based
      on the fact that [Appellant’s] criminal conduct progressed from
      drugs to the unlawful possession of a firearm, even after multiple
      VOP hearings, that Defendant does not appreciate the nature of
      his probation or respect the authority of this Court[.] . . .

      . . . [T]he record shows that this court in fact fully considered
      [Appellant’s] background, including both his criminal history and
      relevant mitigating factors. This court heard that [Appellant] has
      strong family support, that he has been in prison for the entirety
      of his son’s life, and that he has taken advantage of many of the
      programs available to him in prison, including parenting classes.
      [Appellant] also expressed remorse for his actions, and took
      responsibility by pleading guilty. This court also conducted an
      extensive inquiry into the nature of [Appellant’s] criminal history
      and the precise breakdown of his prior record. This court took
      into consideration that [Appellant] has been given lenient
      sentences and multiple chances to improve his conduct, and that
      he has not done so. This court also took into consideration that
      [Appellant] assaulted an employee while trying to escape from
      Gaudenzia House, indicating that he has trouble following the
      rules and regulations of a less restrictive setting, and that prison
      likely provides the structure necessary for [Appellant] to continue

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      to participate in rehabilitative programs. Most importantly, this
      court placed on the record numerous reasons for its sentence for
      [Appellant’s] firearms charges, all of which apply to its VOP
      sentences; it cannot be said that this court did not fully consider
      the case before it, or that it in any way abused its discretion in
      fashioning the VOP sentence.

Trial Court Opinion, 1/11/18, at unnumbered 4-5 (citations and unnecessary

capitalization omitted).

      Our review of the record confirms the trial court’s representations. See

N.T. Sentencing, 12/1/15, at 4-11, 16 (reflecting the court’s consideration of

Appellant’s individual history, mitigating factors, and rehabilitative needs).

The record supports the trial court’s conclusion that probation has been

ineffective in rehabilitating Appellant and that a significant prison sentence is

necessary to vindicate the authority of the court and protect the public. See,

e.g., Commonwealth v. Derry, 150 A.3d 987, 999 (Pa.Super. 2016)

(holding no abuse of discretion in imposing sentence that appeared to be

“harsh” where the VOP court based the sentence upon the escalation of the

defendant’s criminal conduct from non-violent to violent offenses while under

supervision).

      Appellant essentially asks this Court to reweigh the factors and

substitute our judgment for that of the trial court, which is something we may

not do.   Macias, supra at 778.      Appellant has not shown that “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




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unreasonable decision.”   Thus, he is entitled to no relief from this Court.

Antidormi, supra at 760.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/29/18




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