J-S14030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

MELVIN ANTHONY HERNANDEZ,

                        Appellant                   No. 1901 EDA 2014


          Appeal from the Judgment of Sentence of July 23, 2013
             In the Court of Common Pleas of Lehigh County
           Criminal Division at No(s): CP-39-CR-0000042-2013

BEFORE: DONOHUE, OLSON AND MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                             FILED APRIL 27, 2015

      Appellant, Melvin Anthony Hernandez, appeals from the judgment of

sentence entered on July 23, 2013 as made final by the denial of his post-

sentence motion on August 23, 2013. We affirm.

      The trial court accurately summarized the factual background of this

case as follows:

      The charges stemmed from a brutal attack that occurred at the
      Hamilton Tower apartment building in Allentown, Pennsylvania,
      on November 18, 2012.          That night, [A]ppellant and an
      unidentified accomplice forcibly entered Apartment 315,
      savagely beat its 46-year-old occupant[,] and demanded that he
      give them everything he had. During the attack, [A]ppellant and
      the other robber tied the victim to a chair, attempted to slit his
      throat with a folding knife, stabbed him in the torso with a
      screwdriver, hit him with a miniature baseball bat[,] and
      repeatedly punched him in the face and head. After leaving the
      scene, [A]ppellant was arrested by police as he stepped from the
      apartment elevator. He was covered in blood and was holding
      the victim’s x-box video system. Appellant had other property of
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        the victim in his pockets. When the police entered Apartment
        315, they found the badly injured victim, blood, the implements
        used to restrain and assault the victim[,] and a bag left behind
        by the attackers filled with the victim’s personal property. The
        victim was taken to the hospital where he was treated for a
        broken nose, orbit fractures, a cut to his neck, a large blunt
        force injury to his torso, and other abrasions and contusions.
        The victim had reconstructive surgery on the right eye. He had
        surgery planned for August 2013 on his left eye. As a result of
        the attack, the victim has short-term memory loss, severe
        headaches, significant vision problems[,] and depression for
        which he treats with a therapist.

Trial Court Opinion, 9/8/14, at 1-2.

        The procedural history of this case is as follows. On January 25, 2013,

Appellant was charged via criminal information with robbery,1 burglary,2

aggravated assault,3 theft by unlawful taking,4 receiving stolen property,5

attempted unlawful restraint,6 and conspiracy to commit robbery.7 On June

5, 2013, Appellant entered an open guilty plea to aggravated assault and

conspiracy to commit robbery.

        On July 23, 2013, Appellant was sentenced to 10 to 20 years’

imprisonment on the aggravated assault count and 7½ to 15 years’

1
    18 Pa.C.S.A. § 3701(a)(1)(i).
2
    18 Pa.C.S.A. § 3502(a)(1).
3
    18 Pa.C.S.A. § 2702(a)(1).
4
    18 Pa.C.S.A. § 3921(a).
5
    18 Pa.C.S.A. § 3925(a).
6
    18 Pa.C.S.A. §§ 901, 2902.
7
    18 Pa.C.S.A. §§ 903, 3701.


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imprisonment on the conspiracy count.       Those sentences were ordered to

run consecutively. On July 29, 2013, Appellant filed a post-sentence motion.

On August 23, 2013, the trial court denied Appellant’s post-sentence motion.

On March 25, 2014, Appellant filed a pro se petition pursuant to the Post-

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-9546.         Counsel was

appointed and ultimately, on June 27, 2014, the PCRA court granted the

PCRA petition in part and reinstated Appellant’s direct appellate rights nunc

pro tunc. This appeal followed.8

      Appellant presents two issues for our review:

    1. Whether there is a substantial question for which this Honorable
       Court should grant allowance of appeal from discretionary
       aspects of sentencing?

    2. Whether the trial court erred in sentencing [Appellant] to a harsh
       and excessive sentence when the sentence imposed far
       exceeded the sentencing [guidelines] and failed to consider
       mitigating factors and the sentencing recommendation contained
       within the pre-sentence investigation report?

Appellant’s Brief at 4 (complete capitalization omitted).

      Appellant argues that his sentence is excessive. This issue challenges

the discretionary aspects of Appellant’s sentence. See Commonwealth v.

Ali, 2015 WL 926952, *21 n.4 (Pa. Super. Mar. 5, 2015). “[A] trial court

has broad discretion in sentencing a defendant, and concomitantly, the

8
   On July 7, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On July 23, 2014, Appellant filed his concise statement.
On September 8, 2014, the trial court issued its Rule 1925(a) opinion.
Appellant’s concise statement preserved the substance of the claims he now
raises on appeal.


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appellate courts utilize a deferential standard of appellate review in

determining whether the trial court abused its discretion in fashioning an

appropriate sentence.” Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa.

2014) (citation omitted).

     Pursuant to statute, Appellant does not have an automatic right to

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 Appellant was

sentenced outside of the sentencing guidelines, this Court may only overturn

his sentence if it is unreasonable. 42 Pa.C.S.A. § 9781(c)(3).

     As this Court has explained:

     To 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];
     (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.A. § 9781(b).

Commonwealth v. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014),

appeal denied, 99 A.3d 925 (Pa. 2014) (internal alteration and citation

omitted). Appellant filed a timely notice of appeal and properly preserved

his present claims for our review in his post-sentence motion.     Appellant’s

brief also contains a statement pursuant to Pennsylvania Rule of Appellate




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Procedure 2119(f).        We now turn to whether the appeal presents a

substantial question.

      “In order to establish a substantial question, the appellant must show

actions by the trial court inconsistent with the Sentencing Code or contrary

to   the    fundamental         norms     underlying     the       sentencing   process.”

Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa. Super. 2014)

(citation omitted). “The determination of whether a particular case raises a

substantial    question   is    to   be   evaluated     on     a   case-by-case    basis.”

Commonwealth v. Seagraves, 103 A.3d 839, 841 (Pa. Super. 2014)

(citation omitted).

      Appellant’s Rule 2119(f) statement argues that this appeal presents a

substantial question for two reasons. First, he argues that the sentence was

excessive as it was outside of the sentencing guidelines range. Second, he

argues     that   the   trial    court    failed   to   consider      certain   mitigating

circumstances. This Court recently held that an “excessive sentence claim in

conjunction with an assertion that the court did not consider mitigating

factors” raises a substantial question. Commonwealth v. Gonzalez, 2015

WL 252446, *15 (Pa. Super. Jan. 21, 2015) (internal alteration and citation

omitted).     Accordingly, Appellant has raised a substantial question and we

proceed to consider the merits of his discretionary aspects claim.

      When sentencing a defendant, the trial court is required to consider

the sentencing guidelines.        See Commonwealth v. Tobin, 89 A.3d 663,



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669 n.4 (Pa. Super. 2014) (citation omitted).      In this case, the standard

range for both convictions was 60 to 78 months and the aggravated range

was 90 months.     These guidelines, however, are merely advisory and the

trial court is free to sentence outside of the guidelines as long as it

adequately explains its rationale.   See Commonwealth v. Mattison, 82

A.3d 386, 402 (Pa. 2013). Additionally,

      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.A. § 9721(b).

      In this case, the trial court carefully examined all of the relevant

sentencing factors. It stated on the record that it reviewed the pre-sentence

investigation report, including the sentencing recommendation, and placed

on the record the applicable sentencing guidelines. N.T., 7/23/13, at 2-3.

See Commonwealth v. Raven, 97 A.3d 1244, 1254 n.12 (Pa. Super.

2014), appeal denied, 105 A.3d 736 (Pa. 2014) (citation omitted) (“when a

sentencing court has the benefit of a pre-sentence report, we must presume

that the sentencing judge was aware of, and duly considered, any character-

related information contained therein”).      The trial court considered the

gravity of the offense as it related to the victim.     Specifically, the victim

submitted an impact statement in which he stated that the day of the

incident is when his life fell apart. Id. at 3. The victim continued,




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      You took away from me peace of mind. You tried to take my
      life. You tried to make my kids orphaned. . . . [B]ecause of your
      decisions I have short-term memory loss. . . . I suffer from Post-
      Traumatic Stress Disorder. I’ve lost 45% of my sight in my right
      eye, and I’ve had to have surgery to fix my left eye. . . . [Y]ou
      took things from me that you could never give back. I would
      never wish this on my worst enemy.

Id. at 4.   The victim also stated “I don’t trust anybody.      I’m constantly

looking over my shoulder.” Id. at 10. Thus, the trial court concluded that

the impact on the victim was momentous.         The trial court properly gave

significant weight to this factor.

      Next, the trial court considered the need to protect the community.

Specifically, the trial court noted that Appellant was only on parole for one

week prior to the instant offense. N.T., 7/23/13, at 23. The trial court also

outlined Appellant’s prior admitted offenses and how he violated several

prison policies, inter alia, getting into a major prison altercation. Id. at 23-

26. Again, the trial court properly gave significant weight to this factor. The

trial court also considered the rehabilitative needs of Appellant, noting that

he had no prior employment history and had a history of suicidal thoughts.

Id. at 24-25.      Accordingly, the trial court considered all of the section

9721(b) factors.

      Appellant contends the trial court did not adequately consider the

sentencing guidelines.      The trial court, however, not only placed the

guidelines on the record, N.T., 7/23/13, at 2, but it also explicitly stated it

was sentencing Appellant above the guidelines at one count and in the



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aggravated range at the other count. Id. at 23. The trial court, therefore,

adequately    considered   the   guidelines,   and    the   probation   office’s

recommendation, when fashioning its sentence.

      Appellant also argues that the trial court failed to consider certain

mitigating factors. He argues that the trial court failed to consider his young

age (21 years old) at the time of the offense.        Although Appellant was

young, he was an adult and old enough to recognize the consequences that

could result from his serious criminal offense.       Cf. Commonwealth v.

Hoover, 107 A.3d 723, 732 (Pa. 2014) (rejecting the argument that the

young age of a defendant lessened the probative value of an offense). Next,

Appellant argues that the trial court did not adequately consider his chaotic

environment and lack of education.     We disagree.    The record establishes

that the trial court heard this evidence and denied relief. Given the brutal

nature of the offenses, the undisputed and life-altering impact on the victim,

and the fact that Appellant committed the instant armed and violent crimes

only one week after starting parole, we cannot say that the trial court’s

denial of relief under these circumstances constituted an abuse of discretion.

In fact, the record shows that much of Appellant’s chaotic environment was

of his own creation. Appellant is an admitted drug user and drug seller, a

member of a criminal gang, and a participant in a prison assault. Appellant

contends the trial court did not consider his mental illness. The trial court,

however, explicitly noted his mental health problems. N.T., 7/23/13, at 24.



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Finally, Appellant argues that the trial court did not consider his apology.

The record reflects, however, that the trial court found the apology to “ring

hollow.” Id. at 23. Thus, the trial court considered all of the mitigating and

aggravating circumstances when pronouncing its sentence.

      In sum, Appellant committed a brutal crime that will have a life-long

impact on the victim and his family. There was ample evidence from which

the trial court could infer that this criminal episode was far more brutal, and

the impact on the victim far greater, than a typical aggravated assault and

conspiracy to commit robbery case. The trial court therefore concluded that

the sentencing guidelines were inappropriate and sentenced Appellant

outside of the guidelines. We conclude that the trial court’s determination

was not an abuse of discretion and that the sentence outside of the

guidelines was not unreasonable under the circumstances.          Accordingly,

Appellant’s challenge to the discretionary aspects of his sentence is without

merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/27/2015




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