J-S65005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                           IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                            Appellee

                       v.

JOSE RODRIGUEZ,

                            Appellant                       No. 3508 EDA 2016


              Appeal from the Judgment of Sentence July 21, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0009966-2011
                            MC-51-CR-0030479-2011


BEFORE: OLSON, OTT, and MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                                 FILED OCTOBER 19, 2017

        Appellant, Jose Rodriguez, appeals from the judgment of sentence

entered on July 21, 2016. We affirm.

        At   docket   number      CP-51-CR-009966-2011          (hereinafter   “docket

number 9966-2011”), the Commonwealth charged Appellant with crimes

that included possession of marijuana with the intent to deliver (hereinafter

“PWID”) and criminal conspiracy.1              The information alleged that Appellant

committed the charged crimes on May 31, 2011.                       Commonwealth’s

Information, 9/3/11, at 1.

        Appellant entered a negotiated guilty plea to PWID and conspiracy at

docket number 9966-2011 and, on November 3, 2011, the trial court
____________________________________________


1   35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 903, respectively.
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sentenced Appellant to serve an aggregate term of four years of probation

for his convictions. See Sentencing Order, 11/3/11, at 1.

        At   docket   number     CP-51-CR-0014026-2012          (hereinafter   “docket

number 14026-2012”), the Commonwealth charged Appellant with crimes

that included possession of heroin with the intent to deliver (hereinafter

“PWID”) and criminal conspiracy.2              The information alleged that Appellant

committed the charged crimes on June 5, 2012.                       Commonwealth’s

Information, 12/5/12, at 1.

        Appellant entered a negotiated guilty plea to PWID and conspiracy at

docket number 14026-2012 and, on January 16, 2013, the trial court

sentenced Appellant to serve an aggregate term of 12 months of

intermediate punishment, followed by two years of probation, for his

convictions at that docket number. See Sentencing Order, 1/16/13, at 1.

        Appellant’s convictions at docket number 14026-2012 caused him to

violate the conditions of his probation at docket number 9966-2011. Thus,

following a violation of probation hearing at docket number 9966-2011, the

trial court resentenced Appellant on September 10, 2014, to serve an

aggregate term of five years of probation. See Sentencing Order, 9/10/14,

at 1.

        As the trial court explained:


____________________________________________


2   35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 903, respectively.



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          On May 31, 2015, while [Appellant was on probation at both
          of the above docket numbers, Appellant] was arrested for
          attempted murder and related charges. On March 8, 2016,
          [Appellant] was found guilty of attempted murder and
          related charges[ and,] on May 13, 2016, [Appellant] was
          sentenced to [serve 12 to 25 years in prison,] followed by
          five [] years of probation [for the convictions].

Trial Court Opinion, 3/3/17, at 1 (some internal capitalization omitted).

        On July 21, 2016, the trial court held a violation of probation hearing

at docket numbers 9966-2011 and 14026-2012. The trial court found that

Appellant’s attempted murder conviction placed him in direct violation of the

terms of his probation at both docket numbers. N.T. VOP Hearing, 7/21/16,

at 5.    The trial court then revoked Appellant’s probation at both docket

numbers and sentenced Appellant to serve a term of five to ten years in

prison at docket number 9966-2011 and to serve a term of five to ten years

in prison at docket number 14026-2012. Id. at 5-6. The trial court ordered

that the terms of imprisonment be served consecutively to one another and

consecutively to the term of imprisonment Appellant received at the docket

number encompassing his attempted murder conviction. Id.

        On July 22, 2016, Appellant filed a “Petition to Vacate and Reconsider

VOP Sentence” (hereinafter “Appellant’s Motion to Modify Sentence”) and

listed both docket numbers in the caption. See Appellant’s Motion to Modify

Sentence, 7/22/16, at 1.      Within Appellant’s motion to modify, Appellant

requested that the trial court vacate his sentences at docket numbers 9966-

2011 and 14026-2012 because his counsel “had a conflict of interest in this

matter and should not have represented [Appellant] in this matter.” Id. at


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1-2.      Further, Appellant claimed that his sentences were manifestly

excessive, as they “far surpassed what was required to protect the public,

the complainant or the community, and was well beyond what was

necessary to foster [Appellant’s] rehabilitation.” Id. at 2.

       On July 26, 2016, the trial court vacated Appellant’s sentences at

docket numbers 9966-2011 and 14026-2012, appointed new counsel to

represent Appellant, and scheduled a resentencing hearing for a later date.

Trial Court Order, 7/26/16, at 1.

       The trial court held the resentencing hearing on October 13, 2016. At

the conclusion of the hearing, the trial court resentenced Appellant to serve

the    same    terms    of   incarceration     that   it   originally   imposed.   N.T.

Resentencing Hearing, 10/13/16, at 8-9. Moreover, the trial court noted on

both dockets that Appellant’s “motion for reconsideration of VOP sentence”

was denied.      See Docket Number 9966-2011, at Entry 10/13/16; Docket

Number 14026-2012, at Entry 10/13/16.

       On November 12, 2016, Appellant filed timely notices of appeal at both

docket numbers.         The current appeal is from Appellant’s judgment of

sentence at docket number 9966-2011.3 Appellant raises two claims in this

appeal:


____________________________________________


3 Appellant’s appeal from the judgment of sentence at docket number
14026-2012 is addressed in a separate memorandum at No. 3650 EDA
2016.



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         1. Whether the sentencing court abused its discretion by
         imposing an aggregate sentence of [ten] to 20 years’
         incarceration upon [Appellant] which is manifestly
         excessive[?]

         2. Whether the sentencing court abused its discretion by not
         considering all relevant sentencing by inadequately
         dispensing with the PSI and the dictates of Pa.R.Crim.P.
         702[?]

Appellant’s Brief at 7.

      Appellant’s claims challenge the discretionary aspects of his sentence.

See Commonwealth v. Lee, 876 A.2d 408 (Pa. Super. 2005) (claim that

the trial court erred in imposing an excessive sentence is a challenge to the

discretionary aspects of a sentence); Commonwealth v. Gonzalez-

Dejusus, 994 A.2d 595 (Pa. Super. 2010) (claim that the trial court erred in

imposing consecutive sentences is a challenge to the discretionary aspects of

a sentence); Commonwealth v. Flowers, 950 A.2d 330, 331 (Pa. Super.

2008) (“a claim that the court erred in failing to order a PSI report raises a

discretionary aspect of sentencing” claim).

      We note that, in an appeal following the revocation of probation, our

scope of review includes discretionary aspects of sentencing claims.

Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (en

banc).    With respect to our standard of review, we have held that

“sentencing is a matter vested in the sound discretion of the sentencing

judge, whose judgment will not be disturbed absent an abuse of discretion.”

Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 2001).

Moreover, pursuant to statute, Appellant does not have an automatic right to


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appeal the discretionary aspects of his sentence.         See 42 Pa.C.S.A.

§ 9781(b).    Instead, Appellant must petition this Court for permission to

appeal the discretionary aspects of his sentence. Id.

     As this Court has explained:

        [t]o reach the merits of a discretionary sentencing issue, we
        conduct a four-part analysis to determine: (1) whether
        appellant has 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 [and 708(E)]; (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. Cook, 941 A.2d 7, 11 (Pa. Super. 2007); see also

Cartrette, 83 A.3d at 1042 (“issues challenging the discretionary aspects of

a sentence [following the revocation of probation] must be raised in a post-

sentence motion or by presenting the claim to the trial court during the

sentencing proceedings. Absent such efforts, an objection to a discretionary

aspect of a sentence is waived”); Commonwealth v. Kalichak, 943 A.2d

285, 289 (Pa. Super. 2008) (“when a court revokes probation and imposes a

new sentence, a criminal defendant needs to preserve challenges to the

discretionary aspects of that new sentence either by objecting during the

revocation sentencing or by filing a [motion to modify] sentence”).

     As our Supreme Court has held, the determination of whether a

substantial question exists must be done prior to – and be divorced from –

the determination of the potential merits of an issue. Commonwealth v.


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Tuladziecki, 522 A.2d 17, 19 (Pa. 1987). If it were otherwise, a challenger

would “in effect obtain[] an appeal as of right from the discretionary aspects

of a sentence” – a result that would violate statutory law. Id. Further, as

we have held:

        An appellant who seeks to challenge the discretionary
        aspects of his or her sentence must provide a separate
        statement, pursuant to Rule of Appellate Procedure 2119(f),
        specifying where the sentence falls in relation to the
        Sentencing Guidelines and what particular provision of the
        Sentencing Code has been violated. The 2119(f) statement
        must specify what fundamental norm the sentence violates
        and the manner in which it violates that norm.

Commonwealth v. Johnson, 873 A.2d 704, 708 (Pa. Super. 2005)

(internal citations omitted); see also Commonwealth v. Zirkle, 107 A.3d

127, 132-134 (Pa. Super. 2014) (“[a]t a minimum, the Rule 2119(f)

statement must articulate what particular provision of the code is violated,

what fundamental norms the sentence violates, and the manner in which it

violates that norm”) (internal quotations and citations omitted).

      First, Appellant claims that the trial court abused its discretion by

imposing a manifestly excessive sentence.        With respect to this claim,

Appellant’s Rule 2119(f) statement merely declares:

        Appellant argues that his sentence is manifestly excessive
        such that it constitutes too severe a punishment.

Appellant’s Brief at 13.

      On appeal, the Commonwealth objects to Appellant’s Rule 2119(f)

statement and claims that Appellant’s boilerplate allegation fails to satisfy



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the minimum requirements of Rule 2119(f). Commonwealth’s Brief at 7-8.

Therefore, the Commonwealth claims that Appellant’s discretionary aspect of

sentencing claim is waived. Id. We agree. See, e.g., Commonwealth v.

Griffin, 149 A.3d 349 (Pa. Super. 2016) (“[i]f the Commonwealth objects to

the appellant's failure to comply with Pa.R.A.P. 2119(f), the sentencing claim

is waived for purposes of review”); Commonwealth v. Karns, 50 A.3d 158,

166 (Pa. Super. 2012) (“[i]f a defendant fails to include an issue in his Rule

2119(f) statement, and the Commonwealth objects, then the issue is waived

and this Court may not review the claim”) (internal quotations and citations

omitted).

       Appellant’s boilerplate Rule 2119(f) statement does not satisfy the

minimum requirements of the rule. Zirkle, 107 A.3d at 132-134 (Pa. Super.

2014) (“[a]t a minimum, the Rule 2119(f) statement must articulate what

particular provision of the code is violated, what fundamental norms the

sentence violates, and the manner in which it violates that norm”) (internal

quotations and citations omitted); Commonwealth v. Mouzon, 812 A.2d

617, 627 (Pa. 2002) (“[i]f an appellant . . . complies with all statutory and

procedural requirements regarding a challenge to the discretionary aspects

of sentencing, and articulates in his Rule 2119(f) statement a substantial

question so as to warrant appellate review, § 9781 requires the Superior

Court to review the manner in which the trial court exercised its discretion.

This does not mean, however, that the Superior Court must accept

bald    allegations   of   excessiveness.      Rather,    only   where    the

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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”) (emphasis added). To be sure,

since Appellant’s Rule 2119(f) statement consists of mere boilerplate, the

only way this Court could possibly determine whether Appellant has raised a

substantial claim on appeal is to review the argument section of Appellant’s

brief. Yet, as our Supreme Court has held:

        [the] Superior Court [is] not . . . permitted to rely on its
        assessment of the argument on the merits of the
        [discretionary aspects] issue to justify post hoc a
        determination that a substantial question exists. If this
        determination is not made prior to examination of and
        ruling on the merits of the issue of the appropriateness of
        the sentence, the [challenger] has in effect obtained an
        appeal as of right from the discretionary aspects of a
        sentence. It is elementary that such an enlargement of the
        appeal rights of a party cannot be accomplished by rule of
        court. For this reason it is essential that the rules of
        procedure governing appeals such as this be followed
        precisely.

Tuladziecki, 522 A.2d at 19.

     Therefore, in this case, since Appellant has failed to comply with the

minimum requirements of Rule 2119(f) and since the Commonwealth has




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objected to Appellant’s failure, we must conclude that Appellant has waived

his first claim on appeal.

      For Appellant’s second claim on appeal, Appellant contends that the

trial court abused its discretion at sentencing by failing to order a pre-

sentence investigation report.   Appellant’s Brief at 15-17.      This claim is

waived, as Appellant did not raise the claim in his motion to modify

sentence.     Appellant’s Motion to Modify Sentence, 7/22/16, at 1-2;

Cartrette, 83 A.3d at 1042; Kalichak, 943 A.2d at 289.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/19/2017




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