J-S38042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                              Appellee

                       v.

JOSE ELIA DIAZ

                              Appellant                      No. 2727 EDA 2015


              Appeal from the Judgment of Sentence June 5, 2012
                 in the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0002870-2011
                                          CP-39-CR-0002871-2011


BEFORE: FORD ELLIOTT, P.J.E., OLSON, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                                     FILED MAY 20, 2016

        Appellant Jose Elia Diaz (“Appellant”) appeals from the June 5, 2012

judgment of sentence entered in the Lehigh County Court of Common Pleas

following his guilty plea to rape (forcible compulsion)1 and burglary2 at CP-

39-CR-0002870-2011 and aggravated assault3 at CP-39-CR-0002871. After

careful review, we affirm.

        On the morning of April 25, 1997, Appellant, wearing a mask and

armed     with   a   knife,    snuck     into   the   home   where   his   15-year   old

____________________________________________


1
    18 Pa.C.S. § 3121(a)(1).
2
    18 Pa.C.S. § 3502(a).
3
    18 Pa.C.S. § 2702(a)(1).
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stepdaughter4 lived with her aunt, and attacked, bound, gagged, and

perpetrated two violent rapes on his stepdaughter in her upstairs bedroom.

        One of the victim’s friends entered the bedroom, saw the victim bound

on the bed, saw and identified Appellant as the victim’s stepfather, 5

screamed, and ran down the stairs. Appellant followed, grabbed the friend

by the hair, and dragged her back upstairs to the victim’s room while

attempting to stab her with a knife.           As Appellant chased the friend, the

victim freed her hands, pulled down her gag, and retrieved a gun from a

drawer in her room. The victim pointed the gun at Appellant and yelled at

him to release her friend. When the friend was free, the victim instructed

her to call 911. The friend ran out of the house and called 911. The victim

attempted to shoot Appellant, but the safety was engaged on the gun. Next,

the victim grabbed various household items, including vases and perfume

bottles, and threw them at Appellant, who turned and fled. Before he fled,

the victim was able to identify Appellant as her stepfather.             Appellant

remained at large until his apprehension in 2011.




____________________________________________


4
   The victim’s mother was Appellant’s long-time girlfriend.         Although
Appellant and the victim’s mother, his long-time girlfriend, never married, all
involved viewed Appellant and the victim’s relationship as that of stepfather
and stepdaughter.
5
    Appellant’s mask had partially dislodged at this point in the attack.




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       On March 5, 2012, Appellant pled guilty to rape, burglary, and

aggravated assault.6 Following the preparation of a presentence report and

a Megan’s Law evaluation, on June 5, 2012, the trial court sentenced

Appellant to an aggregate term of 25 to 50 years’ imprisonment. 7 On June

15, 2012, Appellant filed a post-sentence motion for reconsideration of

sentence, which the trial court denied on June 25, 2012.             Appellant

appealed.8

       Appellant raises a single issue for our consideration:

       Whether the [trial] [c]ourt abused its discretion in imposing
       manifestly excessive and unreasonable sentences which were all
       at the statutory maximum limit and imposed consecutively when
       the [c]ourt failed to consider any significant mitigating factors,
       failed to apply and review any of the necessary factors as set
       forth in 42 Pa.C.S.[] Section 9721(b) and 42 Pa.C.S.[] Section
       9781(c) and (d) or otherwise failed to set forth appropriate
       reasons for its radical deviation from the standard sentencing

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6
  In exchange for the guilty pleas, the Commonwealth agreed not to pursue
further counts from the criminal informations.     In all other respects,
Appellant entered an open guilty plea.
7
  Specifically, the trial court imposed consecutive sentences of 10 to 20
years’ imprisonment on each of the rape and burglary convictions, and a
consecutive term of 5 to 10 years’ imprisonment on the aggravated assault
conviction. These sentences were all statutory maximum sentences and
upward departures from the sentencing guidelines.
8
  Appellant originally filed a notice of appeal on July 24, 2012. Appellant’s
appointed appellate counsel failed to file a brief, and on November 16, 2012,
this Court dismissed the appeal. Appellant then filed a petition pursuant to
the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq., that ultimately
resulted in his filing the instant appeal, nunc pro tunc, on September 8,
2015.



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      ranges and sentenced [Appellant] only based upon the [c]ourt’s
      perceived belief as to the “heinousness” of the crime?

Appellant’s Brief, p. 7.

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

sentence.   “Challenges to the discretionary aspects of sentencing do not

entitle a petitioner to review as of right.”   Commonwealth v. Caldwell,

117 A.3d 763, 768 (Pa.Super.2015), appeal denied, 126 A.3d 1282

(Pa.2015). Before this Court can address such a discretionary challenge, an

appellant must satisfy the following four-part test:

      (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.

Id.   “The determination of whether a particular issue raises a substantial

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

Fiascki, 886 A.2d 261, 263 (Pa.Super.2005). “Generally, however, in order

to establish a substantial question, the appellant must show actions by the

sentencing court inconsistent with the Sentencing Code or contrary to the

fundamental norms underlying the sentencing process.”        Commonwealth

v. Titus, 816 A.2d 251, 255 (Pa.Super.2003).

      Here, Appellant filed a timely notice of appeal, and preserved his

issues in a motion for reconsideration of sentence. Further, Appellant’s brief




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includes a statement of the reasons relied upon for allowance of appeal

pursuant to Pa.R.A.P. 2119(f).9 See Appellant’s Brief, p. 11. Accordingly,

we now determine whether Appellant has raised a substantial question for

review and, if so, proceed to a discussion of the merits of the claim. See

Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa.1987).

        “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     which    underlie    the   sentencing   process.”    Commonwealth    v.

Christine, 78 A.3d 1, 10 (Pa.Super.2013) (internal citations omitted); see

also 42 Pa.C.S. § 9781(b). “We determine whether a particular case raises a

substantial question on a case-by-case basis.”           Id.    A bald or generic

assertion that a sentence is excessive does not, by itself, raise a substantial
____________________________________________


9
    Appellant’s Pa.R.A.P. 2119(f) statement reads as follows:

        [Appellant] is requesting the review of his sentences based upon
        his belief that the [t]rial [c]ourt abused its discretion when it
        imposed a harsh and excessive sentence contrary to the
        fundamental norms of the [s]entencing [g]uidelines. He believes
        that the [c]ourt failed to set forth legally or factually supported
        reasons for the imposition of maximum sentences for all offenses
        which were all well beyond the [s]tandard [g]uidelines [r]anges
        as applied to [Appellant]. The [c]ourt applied only one factor to
        determine the sentence; the perceived heinousness of the
        offense. He believes the [c]ourt ignored legitimate mitigating
        factors in contravention of its duty and as required pursuant to
        the Sentencing Code.

Appellant’s Brief, p. 11.



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question justifying this Court’s review of the merits of the underlying claim.

Id.;   see       also   Commonwealth         v.    Harvard,     64    A.3d   690,    701

(Pa.Super.2013).        Additionally, a claim that a sentence is unreasonable

because the trial court decided to run certain portions of it consecutive to

one another also does not raise a substantial question for our review. See

Commonwealth v. Marts, 889 A.2d 608, 612 (Pa.Super.2005) (a claim

that the consecutive nature of sentences violates the Sentencing Code fails

to raise a substantial question for review).

       Further, “[t]his Court has held on numerous occasions that a claim of

inadequate consideration of mitigating factors does not raise a substantial

question for our review.”        Commonwealth v. Disalvo, 70 A.3d 900, 903

(Pa.Super.2013); see also Commonwealth v. Ratushny, 17 A.3d 1269,

1273 (Pa.Super.2011) (“argument that the sentencing court failed to

adequately consider mitigating factors in favor of a lesser sentence does not

present      a     substantial    question     appropriate      for   our      review.”);

Commonwealth v.            Ladamus,      896      A.2d   592,   595   (Pa.Super.2006)

(“[A]ppellant’s contention that the trial court did not adequately consider a

mitigating       circumstance    when   imposing     sentence     does   not    raise   a

substantial question sufficient to justify appellate review of the merits of

such claim.”).      However, “a substantial question exists when a sentencing

court imposed a sentence in the aggravated range without considering

mitigating factors.”     Commonwealth v. Rhoades, 8 A.3d 912, 919 n.12




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(Pa.Super.2010) (citing Commonwealth v. Felmlee, 828 A.2d 1105, 1107

(Pa.Super.2003)) (emphasis in original).

       Further, “[i]n every case where a sentencing court imposes a sentence

outside of the sentencing guidelines, the court must provide in open court a

contemporaneous statement of reasons in support of its sentence.”

Commonwealth v. Curran, 932 A.2d 103, 106 (Pa.Super.2007) (citing 42

Pa.C.S. § 9721). A substantial question exists where the sentencing court

failed to provide sufficient reasons for imposing a sentence outside of the

guidelines.       Commonwealth            v.   Monohan,     860   A.2d   180,   182

(Pa.Super.2004).

       Here, Appellant alleges that the trial court imposed an unreasonable

sentence by failing to adequately consider certain mitigating factors 10 in

imposing its aggravated-range sentence.            See Appellant’s Brief, 13-19.

Additionally, Appellant asserts that the trial court did not adequately place

reasons on the record as to why it imposed the sentence it did.            See id.

Further, Appellant suggests that the trial court relied solely on the severity

of the crime in imposing punishment.              See id.    Based on the above

authority, we conclude that Appellant raises a substantial question for

review.    We will therefore address the merits of Appellant’s discretionary

aspects of sentencing claim.

____________________________________________


10
  Specifically, Appellant alleges as mitigating factors his criminal history,
character, and rehabilitative needs. See Appellant’s Brief, pp. 17-18.



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      We review discretionary aspects of sentence claims under the following

standard of review:

            If this Court grants appeal and reviews the sentence, the
      standard of review is well-settled: sentencing is vested in the
      discretion of the trial court, and will not be disturbed absent a
      manifest abuse of that discretion.        An abuse of discretion
      involves a sentence which was manifestly unreasonable, or
      which resulted from partiality, prejudice, bias or ill will. It is
      more than just an error in judgment.

Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 (Pa.Super.2006)

(citations omitted).

      The sentencing guidelines are merely advisory in nature.             See

Commonwealth v. Walls, 926 A.2d 957, 964 (Pa.2007) (“[T]he guidelines

have no binding effect, create no presumption in sentencing, and do not

predominate over other sentencing factors – they are advisory guideposts

that are valuable, may provide an essential starting point, and that must be

respected and considered; they recommend, however, rather than require a

particular sentence.”). A sentencing court may deviate from the guidelines,

if necessary, to fashion a sentence that 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 of the life of the victim and the

community.       Commonwealth         v.   Kenner,    784    A.2d   808,    811

(Pa.Super.2001), appeal denied, 796 A.2d 979 (Pa.2002); see also 42

Pa.C.S. 9721(b) (expressly stating that the trial court may sentence outside

the guidelines provided the court provides its reasons for doing so on the

record).

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J-S38042-16



      Additionally,   where   a   sentencing   judge   had    the   benefit   of    a

presentence investigation report, it is presumed that the judge was aware of

all relevant information regarding the defendant’s character and weighed

those considerations along with any mitigating factors. Commonwealth v.

Boyer, 856 A.2d 149, 154 (Pa.Super.2004).

      Finally, “it is well-established that a sentencing court can impose a

sentence that is the maximum period authorized by the statute, 42 Pa.C.S. §

9756(a).”    Commonwealth v. Saranchak, 675 A.2d 268, 277 n. 17

(Pa.1996). It is also well-settled that the trial court may determine, based

on the facts of the case, whether to impose a sentence consecutively or

concurrently to another sentence being imposed.              Commonwealth v.

Lilley, 978 A.2d 995, 998 (Pa.Super.2009); see also Commonwealth v.

Pettersen, 49 A.3d 903, 912 (Pa.Super.2012) (appellant not entitled to a

“volume discount” for multiple offenses).

      Our review of the sentencing transcript reveals that the lower court did

not abuse its discretion. See generally N.T. 6/5/2012. Instead, the trial

court imposed a sentence that was consistent with the protection of the

public, took into account the gravity of the offense as it related to the impact

on the life of the victim and on the community, and considered the

Appellant’s rehabilitative needs, as required by 42 Pa.C.S. § 9721(b).             Id.

In imposing sentence, the trial court reviewed and considered the pre-

sentence report, the sentencing guidelines, the testimony of the victim,

Appellant’s daughter, Appellant’s daughter’s half-sister, and Appellant’s

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girlfriend, as well as Appellant’s allocution, and the arguments of counsel.

Id. at 4-24.     Additionally, the trial court considered Appellant’s lack of a

criminal record and articulated its reasons for deviating from the standard

guidelines on the record:

             . . . This [c]ourt was aware of [Appellant’s] lack of a prior
       record and the fact that he was found not to be a sexually
       violent predator.

             This [c]ourt also articulated on the record its reasons for
       imposing a sentence that is beyond the aggravated range of the
       guidelines: (1) [Appellant] absconded for fifteen (15) years; (2)
       the victim’s vulnerable position because of her age; (3)
       [Appellant] was in a position of trust, as the long-term boyfriend
       of the victim’s mother; (4) the crime was particularly violent and
       cruel; (5) the guidelines do not adequately reflect the
       seriousness of the crime; (6) the victim of the aggravated
       assault was a witness to the rape; (7) the safety of the
       community; and (8) the protection of the victim.

Trial Court Pa.R.A.P. 1925(a) Opinion, filed September 10, 2014, p. 7; see

also N.T. 6/5/2012, p. 27.            Finally, the consecutive imposition of the

sentences, which were statutorily permissible,11 was within the discretion of

the trial court. See Lilley, supra. Accordingly, Appellant’s excessiveness

claim fails on the merits.

       Judgment of sentence affirmed.



____________________________________________


11
   Rape and burglary are felonies of the first degree punishable by up to
twenty (20) years’ imprisonment. See 18 Pa.C.S. §§ 106, 1103, 3121 and
3502. The aggravated assault in the instant matter was a felony of the
second degree punishable by up to ten (10) years’ imprisonment. See 18
Pa.C.S. §§ 106, 1103, and 2702.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/20/2016




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