J-S53023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

WILLIAM MARTINEZ-DEJESUS,

                            Appellant                No. 2103 MDA 2015


         Appeal from the Judgment of Sentence September 28, 2015
             In the Court of Common Pleas of Dauphin County
            Criminal Division at No(s): CP-22-CR-0000883-2015


BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                           FILED AUGUST 25, 2016

       Appellant, William Martinez-DeJesus, appeals from the judgment of

sentence entered following his conviction of robbery. We affirm.

       We summarize the procedural history of this case as follows.    In an

information filed on April 29, 2015, the Commonwealth charged Appellant

with one count of robbery in relation to his actions on December 19, 2014, in

which Appellant beat and threatened to kill a taxi driver over a fare dispute

and took items from his taxicab. On July 21, 2015, Appellant entered a plea

of nolo contendere to the robbery charge. On September 28, 2015, the trial

court sentenced Appellant to serve a term of incarceration of five to ten

years, and payment of fines, costs, and restitution to the victim. Appellant
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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filed a timely post-sentence motion. On November 3, 2015, the trial court

entered an order denying Appellant’s post-sentence motion.             This timely

appeal followed.       Both Appellant and the trial court have complied with

Pa.R.A.P. 1925.

       Appellant presents the following issue for our review:

            WAS IT SO MANIFESTLY EXCESSIVE AS TO CONSTITUTE
       AN ABUSE OF DISCRETION FOR THE COURT TO IMPOSE A
       SENTENCE OUTSIDE ALL RANGES OF THE SENTENCING
       GUIDELINES WHEN SUCH SENTENCE WAS “UNREASONABLE”
       WITHIN THE MEANING OF 42 Pa.C.S. §9781(c)(3) BECAUSE
       THERE WERE NO SPECIAL CIRCUMSTANCES JUSTIFYING AN
       UPWARD DEPARTURE?

Appellant’s Brief at 5.

       Appellant argues that the trial court abused its discretion in imposing

the sentence in this case.        Appellant’s Brief at 20-25.   Appellant contends

that the sentencing court failed to give adequate reasons for imposing a

sentence that exceeded the aggravated range of the Sentencing Guidelines.1


____________________________________________


1
  As the Commonwealth properly observes, to the extent Appellant presents
an argument pertaining to whether the Commonwealth established certain
elements of the crime charged, we note that this specific issue was not
raised in Appellant’s Pa.R.A.P. 1925(b) statement. Thus, we are constrained
to conclude that this specific argument is waived for purposes of appellate
review. See Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998)
(holding that where a trial court directs a defendant to file a concise
statement pursuant to Pa.R.A.P. 1925, any issues not raised in that
statement shall be waived). See also Commonwealth v. Oliver, 946 A.2d
1111, 1115 (Pa. Super. 2008) (noting that Lord “requires a finding of
waiver whenever an appellant fails to raise an issue in a court-ordered
Pa.R.A.P. 1925(b) statement”).



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        Appellant’s claim of error is a challenge to the discretionary aspects of

his sentence. It is well settled that a challenge to the discretionary aspects

of a sentence is a petition for permission to appeal, as the right to pursue

such a claim is not absolute. Commonwealth v. Treadway, 104 A.3d 597,

599 (Pa. Super. 2014).        Before this Court may review the merits of a

challenge to the discretionary aspects of a sentence, we must engage in the

following four-pronged analysis:

        [W]e 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. § 9781(b).

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

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006)).

        We note that Appellant has met the first three parts of the four-prong

test:    Appellant filed a timely appeal; Appellant preserved the issue in a

post-sentence motion; and Appellant included a statement pursuant to

Pa.R.A.P. 2119(f) in his brief. Thus, we next assess whether Appellant has

raised a substantial question with respect to the issue he presents.

        Whether a particular issue constitutes a substantial question about the

appropriateness of a sentence is a question to be evaluated on a case-by-

case basis.    Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.

2001).    As to what constitutes a substantial question, this Court does not

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accept bald assertions of sentencing errors. Commonwealth v. Malovich,

903 A.2d 1247, 1252 (Pa. Super. 2006). An appellant must articulate the

reasons the sentencing court’s actions violated the sentencing code. Id. “A

substantial question will be found where the defendant advances 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) (citations omitted).

       In Appellant’s brief, he argues that “[t]he [sentencing] court failed to

give   adequate   reasons for    imposing a sentence      that exceeded the

aggravated range of the Sentencing Guidelines.”       Appellant’s Brief at 18.

This Court has held that claims that the sentencing court imposed a

sentence outside the standard guidelines without stating adequate reasons

on the record presents a substantial question.            Commonwealth v.

Antidormi, 84 A.3d 736, 759 (Pa. Super. 2014) (citing Commonwealth v.

Robinson, 931 A.2d 15, 26 (Pa. Super. 2007)).         Thus, we conclude that

Appellant’s claim presents a substantial question for our review and we will

review the merits of Appellant’s challenge.

       Our standard of review in appeals of sentencing 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,

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       exercised its judgment for reasons of partiality, prejudice, bias
       or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Mann, 957 A.2d 746, 749 (Pa. Super. 2008).

       A sentencing judge has broad discretion in determining a reasonable

penalty, and appellate courts afford the sentencing court great deference, as

it is the sentencing court that is in the 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. Walls, 926 A.2d 957,

961 (Pa. 2007) (quotations and citations omitted). 2        When imposing a

sentence, the sentencing court must consider “the protection of the public,


____________________________________________


2
    The Walls Court instructed the following:

       In making this “unreasonableness” inquiry, the General
       Assembly has set forth four factors that an appellate court is to
       consider:

       (d) Review of the record.—In reviewing the record the appellate
       court shall have regard for:

              (1) The nature of the circumstances of the offense
              and the history and characteristics of the defendant.

              (2) The opportunity of the sentencing court to
              observe the defendant, including any pre-sentence
              investigation.

              (3) The findings upon which the sentence was based.

              (4) The guidelines promulgated by the commission.

       42 Pa.C.S. § 9781(d).

Walls, 926 A.2d at 963.



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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). As we have stated, “[A] court is required to consider the

particular circumstances of the offense and the character of the defendant.”

Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002).                   In

particular, the sentencing court should refer to the defendant’s prior criminal

record, his age, personal characteristics, and his potential for rehabilitation.

Id.

      Moreover, it is well settled that sentencing courts are not bound by the

Sentencing Guidelines because they are merely advisory.       Commonwealth

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

sentencing court may deviate from the Sentencing Guidelines, because they

are one factor among many that the court must consider when imposing a

sentence.   Id. (citation omitted).   The sentencing court “may depart from

the [G]uidelines if necessary, to fashion a sentence which takes into account

the protection of the public, the rehabilitative needs of the defendant, and

the gravity of the particular offense as it relates to the impact on the life of

the victim and the community.” Id. (internal quotation marks and citation

omitted).

      Our review of the record reflects that at the time of Appellant’s

sentencing, the court was aware of the applicable guideline ranges.        N.T.,

9/28/15, at 3. In addition, a victim-impact statement was presented to the


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court and photographs of the victim’s injuries were admitted.       Id. at 4-5.

Also, Appellant’s counsel apprised the court of Appellant’s personal history

and the fact that Appellant was taking full responsibility for the incident. Id.

at 6.     Appellant’s counsel then read into the record a personal letter of

apology from Appellant to the victim.       Id. at 7-8.   Thereafter, Appellant

personally addressed the court and offered an apology directly to the victim.

Id. at 8. The victim rebuffed Appellant’s act of contrition. Id.

        Thereafter, the sentencing court made the following statement on the

record:

               Here is the problem. Here lies the problem. There are
        different types of robberies that take place, and there are those
        with force and threat of force. Even a purse-snatch is a robbery.
        Then there are senseless acts that take place.

              And then there is always the emotional trauma that a
        victim will sustain, and some more than others. Some folks are
        more sensitive to aggressive acts than others. And then you
        have situations where there is mindless physical brutality that
        takes place because then a victim has to live with it for the rest
        of their life.

              I appreciate greatly the efforts the District Attorney’s
        Office has indicated they are willing to go to, to try to get the
        Compensation Board to try to help out the financial situation that
        exists here.

               [Appellant] stands before me and says, I will pay whatever
        to do it, and he is not capable of it. So the words, although they
        may sound good, are hollow because he is not able to correct
        what he has done. He does not have to go through life with the
        injuries and the scarring and the debilitating aspects of his
        actions.

                                      ***


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            And the remorsefulness I don’t think covers it. Being sorry
     for it doesn’t cover it. Having lots of stress in your life and
     everything falling apart, what does that have to do with [the
     victim]? [The victim] didn’t cause any of that stress or strife.
     So that’s my concern.

           Yes, [Appellant] has pled guilty and we take that into
     consideration. Yes, [Appellant] has indicated that he is sorry for
     it. Sure, I bet you he is, or at least I hope he is.

                                   ***

           And it is not necessarily the photographs that exist. Have
     I seen worse photographs over my ... 30 some years of being
     involved in criminal law? Sure, I have. Sure I have. But what
     [the victim] has to live with the rest of his life -- and it has
     impacted him financially as well -- I don’t know that the Victim
     Compensation Board can ever put him back on his feet. And
     that doesn’t even cover, you know, what [the victim] is living
     with.

            And that’s the egregious aspect of this case, is I feel for
     [the victim], the senseless inflictions that have occurred. And
     that’s where I see our problem. [Appellant] has zero prior
     record score, but to jump so quickly and violently into the area
     where he did, I don’t understand it. And that’s my problem and
     that’s my concern.

                                   ***

           I see this as the injuries, the impact on the life of the
     victim, the degree of the violent nature of this particular robbery
     bespeak of going above the guidelines. It makes no sense.

N.T., 9/28/15, at 9-12.

     In its opinion, the sentencing court made the following conclusion

regarding the sentence imposed:

           In light of the record, this Court did not abuse its
     discretion in deviating from the guidelines. The sentence was
     not so manifestly excessive as to constitute an abuse of
     discretion. Moreover, such sentence was consistent with the

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      protection of the public, the gravity of the offense, and
      [Appellant’s] rehabilitative needs.

Trial Court Opinion, 2/18/16, at 4 (citations omitted).

      Upon review of the record, we conclude that the sentencing court

presented adequate reasons for imposing a sentence upon Appellant that

was beyond the Sentencing Guidelines. There is no indication that the trial

court ignored any relevant factors in fashioning the sentence.   Rather, we

agree with the sentencing court that its focus was properly upon Appellant’s

brutal behavior during the commission of the crime and the impact upon the

victim.   Accordingly, it is our determination that there was no abuse of

discretion on the part of the sentencing court.      Hence, we conclude this

claim lacks merit.    Based on the foregoing, we affirm the judgment of

sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2016




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