J-S57027-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                          Appellee

                     v.

BIVIANO PEREZ

                          Appellant                   No. 246 MDA 2019


      Appeal from the Judgment of Sentence entered January 8, 2019
               In the Court of Common Pleas of York County
             Criminal Division at No: CP-67-CR-0003177-2017


BEFORE: BOWES, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                        FILED JANUARY 21, 2020

      Appellant, Biviano Perez, appeals from the judgment of sentence

entered on January 8, 2019 in the Court of Common Pleas of York County

following his conviction of possession with intent to deliver heroin. Appellant

argues the trial court abused its discretion by imposing a sentence above the

aggravated range. Following review, we affirm.

      In its Rule 1925(a) opinion, the trial provided the following background:

      On August 17th, 2018, [Appellant] was admitted into the York
      County Drug Treatment Court program. On August 21st, 2018,
      while in the treatment court program, [Appellant] admitted to
      using four bags of heroin the morning before reporting to court,
      and was remanded to the York County Prison at that time.
      [Appellant] plead guilty on September 4th, 2018. [Appellant] was
      subsequently released [from] the York County Prison into an
      inpatient treatment facility. After a period of about a month there,
      [Appellant] was remanded to the York County Prison, then
      subsequently asked to be removed from the treatment court
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      program on October 30th, 2018. On January 8th, 201[9], the
      court sentenced him to 7 to 14 years’ incarceration.

Rule 1925(a) Opinion, 5/2/19, at 2 (some capitalization omitted). Appellant

filed post-sentence motions, which the trial court denied. This timely appeal

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

      Appellant presents one issue for our consideration:

      The trial court abused its discretion when it sentenced Appellant
      above the aggravated range when several factors considered by
      the court to sentence above the aggravated range were already
      incorporated into Appellant’s offense gravity score and/or
      incorporated into the guideline ranges.

Appellant’s Brief at 4.

      Appellant presents a challenge to the discretionary aspects of sentence.

As this Court recognized in Commonwealth v. Matthews, 196 A.3d 242 (Pa.

Super. 2018),

      [w]hen an appellant challenges the discretionary aspects of his
      sentence, we must consider his brief on this issue as a petition for
      permission to appeal. See Commonwealth v. Moury, 992 A.2d
      162 (Pa. Super. 2010).       Prior to reaching the merits of a
      discretionary sentencing issue,

         this Court conducts 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.A. § 9781(b).

Id. at 251 (quoting Moury, 992 A.2d at 170) (alterations and citation

omitted).

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      Here, Appellant satisfied the first three prongs of the analysis. He filed

a timely notice of appeal and preserved his issue in a post-sentence motion.

His brief contains a separate Rule 2119(f) statement. See Appellant’s Brief

at 10. Therefore, we must determine whether his issue presents a substantial

question permitting our review.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d 526,

533 (Pa. Super. 2011). Further:

          A substantial question exists only when the appellant
          advances a colorable argument that the sentencing judge’s
          actions were either: (1) inconsistent with a specific provision
          of the Sentencing Code; or (2) contrary to the fundamental
          norms which underlie the sentencing process.
Id. (citations omitted).

      “An appellant making an excessiveness claim raises a substantial

question when he 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.” Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014),

appeal denied, 105 A.3d 736 (Pa. 2014) (internal citations omitted). Appellant

contends:

      A substantial question is raised when the sentencing court
      sentenced a defendant outside the sentencing guidelines and the
      sentence is unreasonable. See 42 Pa.C.S. [§] 9781(c)(3). A
      substantial question is also raised when a sentencing court
      considers factors incorporated into the prior record score when
      sentencing to the aggravated, mitigated, or beyond the


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      guidelines. See Commonwealth v. Darden, 531 A.2d 1144,
      1148-49 (Pa. Super. 1987).

Appellant’s Brief at 10. As in Darden, we find Appellant here has raised a

substantial question. See Darden, 531 A2d at 1147. Therefore, we shall

consider the merits of his claim.

       The standard of review for a challenge to the discretionary aspects of

sentencing is as follows:

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

Matthews, 196 A.3d at 251 (quoting Commonwealth v. Gonzalez, 109

A.3d 711, 731 (Pa. Super. 2015)).           “When imposing a sentence, the

sentencing court must consider the factors set out in 42 Pa.C.S.A. § 9721(b),

that is, the protection of the public, gravity of offense in relation to impact on

victim and community, and rehabilitative needs of the defendant. And, of

course, the court must consider the sentencing guidelines.” Commonwealth

v. Fullin, 892 A.2d 843, 847–48 (Pa. Super. 2006) (internal citations

omitted).

      Here, the trial court made the following statement before imposing

sentence:

      [Appellant] appears today to complete sentencing following the
      entry of an open plea that brought him into the Heroin Opioid

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     Wellness Court.     I’ve reviewed the PSI and considered its
     contents, considered the statements of each counsel, all the
     evidence surrounding this case, brief comments by [Appellant],
     considered the information related to me at sidebar.

     Within the PSI, the court notes that [Appellant] had a substantial
     period of time where he was apparently not in trouble with the
     law. He had a conviction last of May 30th, 1993 [sic], for the sale
     of controlled narcotics, and he got 3 to 6 years in prison for that.
     So I don’t know how long he did in prison, but there would have
     been – even if he did the full 6 years, there would have been
     approximately a 10-year period where he was not in trouble with
     the law.

     He did have criminal sale of controlled substances in 1987 and
     1986. He’s got a felony assault in 1987 as well. Criminal
     possession of a weapon back in 1984. He does have an escape,
     Felony III escape, in 2009, a resisting arrest, a separate case,
     5247 of 2009, and then he’s got the instant charge in 2017.

     One of the other factors the court considers, [Appellant] entered
     the Drug Court Treatment Program on August 17th, 2018.
     [Appellant] entered the Teen Challenge Program apparently that
     same day and lasted three days before leaving the program
     against medical advice. He reported the next day on August 21,
     2018, and admitted to using four bags of heroin that morning
     before reporting to court, that he had consumed marijuana the
     week before and methadone that was not prescribed to him on
     August 19th. He was remanded to the York County Prison at that
     time.

     He was ultimately released to White Deer Run in York on
     September 13th, 2018. On October 1st, 2018, White Deer Run
     reported that [Appellant] was not participating in groups, and on
     [October] the 2nd, 2018, he was escorted off the property by law
     enforcement officers after exhibiting aggressive behaviors toward
     another individual while in treatment.

     Essentially, [Appellant] never demonstrated any interest in his
     recovery and rehabilitation. He demonstrated an apathetic and
     negative attitude during the limited time that he was in the court.
     [Appellant] communicated that he clearly is just going to do it his
     way. He doesn’t care what probation says, what the judge says,


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     what treatment professionals say. He’s just going to do it his own
     way.

     So it’s not unusual that we run into that sort of attitude with
     somebody in the Treatment Court, and when that happens, we
     refer them to the Freedom Program for some improvement in their
     thinking process. So we wanted to give [Appellant] one last
     chance recognizing that he did have a significant prior record score
     of 5. So on October 9th, 2018, [Appellant] was remanded because
     he wasn’t getting anything out of the Treatment Court Program
     due to his own recalcitrance, and he was ordered to complete the
     Freedom Program as a condition of remaining in the Heroin Opioid
     Wellness Court.

     On October 30th, 2018, [Appellant] indicated that he was not
     going to complete the Freedom Program. None of this information
     about health issues was related to the probation officer or the
     court at that time. We were just told that [Appellant] told his
     probation officer that he could just do the time.

     So based upon what I’m seeing, [Appellant], while he has had
     gaps of time where he has managed to stay out of trouble with
     the law, [Appellant] when he gets into trouble with the law and is
     given the opportunity for rehabilitation and reform, he has no
     interest in it. He’s a stubborn individual. He’s going to do things
     his way. The court finds that he has no rehabilitative potential at
     this point. The Heroin Opioid Wellness Court is focused upon
     treatment, upon individuals improving their life, upon counseling,
     upon developing new skills to avoid criminal thinking, and to avoid
     addictive behavior. Although given multiple chances even when
     he was making bad decisions, [Appellant] has demonstrated that
     he has a criminal mindset.

     We get people in here who are criminals because that have
     addiction issues so they make bad choices because they’re
     addicts. Then we get people in this court who are criminals who
     have a criminal mindset who also happen to be addicts.
     [Appellant] falls into that latter category. He’s a criminal who
     happens to have an addiction issue. He refused the benefits of
     the Treatment Court Program, and thereby refused rehabilitation.
     He refused the structure, the self-discipline, the self-reflection,
     the cognitive adjustment that were a path to him staying out of
     jail and to not being a threat to society even while he was in


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     treatment. He could not control himself and had to be escorted
     by police out of a treatment facility.

     It is clear to this court that [Appellant] wants to keep living a life
     in the drug-abusing community. He wants to keep dealing drugs.
     He wants to take the easy path. He is not interested in self-
     improvement, and he intends to keep being a drain on society.

     The problem that he has now with this court is that he’s dealing
     deadly drugs, and due to his lack of remorse and lack of
     rehabilitation, this court is convinced he will continue to deal
     deadly drugs the day that he gets out of prison. That makes him
     a threat to society. He has the three prior convictions for drug
     dealing. All of these factors taken into consideration warrant a
     sentence in the aggravated range to protect society and due to
     the lack of rehabilitative potential and remorse.

     [Appellant’s] prior record score is a 5. The charges before the
     court for sentencing have the offence gravity score of 6. . . . The
     court finds that [Appellant] has no rehabilitative potential at this
     moment, and the sentencing factors the court considers are
     punishment, protecting society, specific deterrence, and general
     deterrence. All of those factors warrant a lengthy prison sentence
     to protect society and to show [Appellant] that he is not going to
     do it his way. He is going to follow the law.

     After a review of all relevant matters, the court sentences
     [Appellant] to a period of 7 to 14 years in a state correctional
     institution and a $5,000 fine. [Appellant] is not RRRI eligible.
     Court costs are assessed. He has 128 days credit.

Notes of Testimony, Sentencing, 1/8/19, at 7-12 (unnumbered).

     In its Rule 1925(a) opinion, the trial court dismissed Appellant’s

assertion that the court abused its discretion by imposing a sentence above

the aggravated range based on “several factors” already taken into account

in the offense gravity score.   The court found the argument “nonsensical”

because offenses have a set gravity offense score that is the same regardless

of who the defendant is. Rule 1925(a) Opinion, 5/2/19, at 3-4 (citing 204

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Pa.Code §§ 303.3 and 303.15). The court stated that the sentence “was based

on subjective factors beyond those contained in a numerical offense score.”

Id. at 4. Further, Appellant did not clarify which “several factors” he believed

were improperly considered by the court. Id.

      The court also confirmed that it did consider the sentencing guidelines

when it imposed its sentence. “However, [Appellant] had been convicted of

crimes involving the criminal sale of narcotics three times previously, yet still

continued to engage in the same criminal behavior of selling illegal narcotics.

Specifically, the instant conviction is the fourth PWID-related charge of which

[Appellant] has been found guilty.” Id. at 4. This fact reinforced the trial

court’s determination that Appellant has “not reformed his behavior after his

prior convictions, nor possesses any level of remorse.”         Id.   The court

explained, “Where a defendant repeats the same crime, the trial judge may

consider that as a factor, among others, in evaluating remorse and

rehabilitative potential.   Repeat offenses of the same crime are not issues

limited to setting the numeric sentencing guidelines, as [Appellant] suggests.”

Id.

      The trial court’s statements reflect Appellant’s prior convictions were not

double-counted with his prior record score. As the court noted,

      The sentencing guidelines do not capture the fact that [Appellant]
      continued to commit the same offense again and again, a fact
      specifically probative of lack of remorse and rehabilitative
      potential in regard to being a drug dealer. These facts, coupled
      with [Appellant’s] willful rejection of the opportunity offered to
      him by the intensive drug treatment court program, demonstrates

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      that [Appellant] is an ongoing threat to community safety by
      dealing deadly drugs, and shunning all rehabilitative efforts to
      stop such conduct.

      In light of [Appellant’s] character, lack of remorse, and lack of
      rehabilitative potential, [Appellant’s] sentence was not manifestly
      unreasonable. [Appellant] refused all efforts at rehabilitation
      presented to him. [Appellant] was given numerous opportunities
      for self-reflection and improvement, and instead took the easy
      path to keep causing harm to society. [Appellant] has a criminal
      mindset, and wishes to continue his ways of engaging in the illegal
      sale of deadly narcotics. For these reasons he needs to be
      separated from society for a lengthy period of time, in excess of
      standard ranges where a defendant does have rehabilitative
      potential. His sentence is appropriate in light of the factors cite[d]
      by the court[.]

Rule 1925(a) Opinion, 5/2/19, at 4-5.

      Based on our review of the factors set forth in Section 9781(d), we find

the trial court properly considered the nature of the offense, Appellant’s

history and characteristics, and the sentencing guidelines. Further, the court

had the opportunity to observe Appellant at trial and at sentencing and had

the benefit of the pre-sentence investigation report. The reasons stated for

the sentence reflect the court’s consideration of the protection of the public,

the gravity of the offense, and Appellant’s rehabilitative needs and prospects.

Further, the court’s reference to Appellant’s prior convictions, including three

drug convictions, was relevant to the court’s consideration of Appellant’s

potential for rehabilitation or, more accurately, his lack of potential for

rehabilitation. See Commonwealth v. Peck, 202 A.3d 739, 749 (Pa. Super.

2019) (citing Commonwealth v. Messmer, 863 A.2d 567, 573 (Pa. Super.

2004) (noting that although the prior record score accounted for the

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defendant's prior driving-under-the-influence convictions, the score did not

reflect the defendant “complete absence of regard for the law” and the need

to   protect   the   public),   appeal    granted   in   part   on   other   grounds,

Commonwealth v. Peck, 218 A.3d 374 (Pa. 2019). Therefore, we find no

merit to Appellant’s assertion that the court double-counted factors already

considered in the guidelines.

      Based on our review of the record and mindful of our standard of review,

we conclude the trial court did not abuse its discretion by imposing a sentence

above the aggravated range. Therefore, we shall not disturb the sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/21/2020




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