J-S66028-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAVIER GONZALEZ                            :
                                               :
                       Appellant               :   No. 2684 EDA 2018

          Appeal from the Judgment of Sentence Entered June 11, 2009
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0004027-2007


BEFORE: STABILE, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.:                            FILED JANUARY 13, 2020

        Appellant Javier Gonzalez appeals nunc pro tunc from the judgment of

sentence imposed following his jury trial convictions for robbery and

conspiracy.1     Appellant contends that the trial court erred in applying the

deadly weapon possessed enhancement and imposed an unreasonable

sentence. We affirm.

        A prior decision from this Court set forth the relevant procedural history

as follows:

        On May 5, 2009, a jury convicted Appellant of robbery, threat of
        immediate serious bodily injury and criminal conspiracy for his
        participation in a gunpoint robbery committed on October 23,
        2006. The trial court sentenced Appellant to an aggregate period
        of [fourteen] years [nine] months to [thirty-seven] years of

____________________________________________


1   18 Pa.C.S. §§ 3701(a)(1)(ii) and 903(a)(1), respectively.
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       imprisonment.[2] After the trial court denied Appellant’s motion
       for reconsideration of sentence,[3] Appellant filed a direct appeal.
       This Court dismissed the appeal on September 9, 2009, after
       Appellant’s counsel failed to file a docketing statement.

       On July 25, 2011, Appellant filed a pro se PCRA petition alleging
       ineffective assistance of appellate counsel for failing to keep him
       apprised of the status of his direct appeal. The PCRA court
       appointed counsel, who filed an amended PCRA petition and
       memorandum of law in support of the amended PCRA petition on
       November 14, 2012. On April 22, 2014, Appellant, proceeding pro
       se, filed another amended PCRA petition. On June 20, 2014, the
       PCRA court filed its Pa.R.Crim.P. 907 notice of intent to dismiss
       the PCRA petition without a hearing. On July 7, 2014, again
       proceeding pro se, Appellant filed a response to the PCRA court’s
       Rule 907 notice. On July 21, 2014, the PCRA court entered an
       order dismissing the PCRA petition.

Commonwealth v. Gonzalez, 2544 EDA 2014, at 1-2 (Pa. Super. filed Oct.

15, 2015) (unpublished mem.) (footnotes omitted). This Court affirmed the

PCRA court’s order on October 15, 2015.


____________________________________________


2 The trial court sentenced Appellant to ninety-six to two hundred twenty-
eight months’ imprisonment for the robbery conviction. With a prior record
score (PRS) of five, an offense gravity score (OGS) of ten, and application of
the deadly weapon possessed enhancement, the sentencing guidelines called
for a minimum sentence of sixty-nine to eighty-one months’ imprisonment,
plus or minus twelve months for aggravating or mitigating factors, for
Appellant’s robbery conviction. See N.T. Sentencing, 6/11/09, at 2-4.

The trial court also sentenced Appellant to a consecutive term of eighty-one
to two hundred sixteen months’ imprisonment for the conspiracy conviction.
With a PRS of five, an OGS of nine, and application of the deadly weapon
possessed enhancement, the sentencing guidelines called for a minimum
sentence of fifty-seven to sixty-nine months’ imprisonment, plus or minus
twelve months for aggravating or mitigating factors, for Appellant’s conspiracy
conviction. Id. at 4.

3Appellant’s motion for reconsideration of sentence focused on the application
of the deadly weapon enhancement.

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       On June 17, 2016, our Supreme Court vacated this Court’s decision and

remanded the matter to the PCRA court for appointment of new PCRA counsel.

Further, the Supreme Court directed new PCRA counsel to determine whether

Appellant could advance a colorable claim that counsel abandoned Appellant

on direct appeal.

       The PCRA court subsequently appointed new PCRA counsel, who filed an

amended PCRA petition on Appellant’s behalf on March 20, 2017.          In the

amended petition, Appellant argued that he would have pursued his direct

appeal rights had prior counsel not abandoned him.

       The PCRA court dismissed Appellant’s amended petition on January 16,

2018. Despite the fact that he was still represented by new PCRA counsel,

Appellant filed an untimely pro se notice of appeal on April 24, 2018. On July

20, 2018, this Court remanded the matter for a determination as to whether

new PCRA counsel had abandoned Appellant. Upon remand, the PCRA court

appointed current counsel. The PCRA court also reinstated Appellant’s direct

appeal rights nunc pro tunc on August 28, 2018.4 In light of the order granting

relief, Appellant withdrew and discontinued his prior appeal with this Court.

       On September 13, 2018, Appellant timely filed a notice of appeal nunc

pro tunc from his judgment of sentence.          The PCRA court did not order

Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained
____________________________________________


4 The PCRA court’s order indicated that it granted PCRA relief based “on motion
of” current counsel. Order, 8/28/18. The certified record, however, does not
include a copy of current counsel’s motion reiterating Appellant’s request for
PCRA relief.

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of on appeal.    Nevertheless, Appellant filed a Rule 1925(b) statement on

January 25, 2019. The PCRA court did not file a responsive opinion. Rather,

the PCRA court submitted a letter, dated February 13, 2019, explaining that

the judge who presided over the PCRA proceedings did not impose the

judgment of sentence and it would forward the certified record without a Rule

1925(a) opinion.

      Appellant now raises one question for this Court’s review:

      Was the sentence imposed by the trial court manifestly
      unreasonable and an abuse of discretion because the trial court
      imposed an aggregate sentence outside the sentence guidelines
      when there was nothing in Appellant’s record or the facts of the
      incident that require a sentence outside the sentence guidelines?

Appellant’s Brief at 2.

      We summarize Appellant’s arguments in the order we will address them.

First, Appellant emphasizes the following: (1) the jury did not convict him of

any firearms offenses; (2) he did not actually possess the firearm during the

robbery; (3)his coconspirator did not discharge the firearm; and (4) he “was

acting under duress” during the commission of the crimes. Id. Under these

circumstances, Appellant argues that the trial court erred in applying the

deadly weapon possessed sentencing enhancement. Id. at 13.

      Second, Appellant asserts that the trial court imposed unreasonable

sentences because there was no reason to go outside the guideline ranges or

impose consecutive sentences. Id. at 13-14. Appellant claims “there was

nothing aggravating in the incident and the Commonwealth introduced no



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victim impact evidence at sentencing.” Id. at 11. Appellant further argues

that he was twenty-nine years old at the time of sentencing, he possessed a

GED, he did not have “prior violent felony convictions,” and his family

supported his rehabilitative needs. Id. at 12. Appellant also contends that

he “participated in the prison programs available to him” during his pretrial

confinement. Id. Based upon the foregoing, Appellant insists that the record

did not support the trial court’s determination that he was beyond

rehabilitation. Id.

      “[C]hallenges to the discretionary aspects of sentencing do not entitle

an appellant to review as of right.” Commonwealth v. Derry, 150 A.3d 987,

991 (Pa. Super. 2016) (citation omitted); see also Commonwealth v.

Phillips, 946 A.2d 103, 112 (Pa. Super. 2008) (noting that a claim that the

trial court misapplied the deadly weapon enhancement goes to the

discretionary aspect of sentence). Rather, before reaching the merits of such

claims, we must determine:

      (1) whether the appeal is timely; (2) whether [the a]ppellant
      preserved his issues; (3) whether [the a]ppellant’s brief includes
      a concise statement of the reasons relied upon for allowance of
      appeal with respect to the discretionary aspects of sentence; and
      (4) whether the concise statement raises a substantial question
      that the sentence is inappropriate under the [S]entencing [C]ode.

Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citation

omitted). “To preserve an attack on the discretionary aspects of sentence, an

appellant must raise his issues at sentencing or in a post-sentence motion.

Issues not presented to the sentencing court are waived and cannot be raised

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for the first time on appeal.” Commonwealth v. Malovich, 903 A.2d 1247,

1251 (Pa. Super. 2006) (citations omitted).

      Here, Appellant timely filed a notice of appeal nunc pro tunc, and

preserved his challenge to the application of the deadly weapon enhancement

in his post-sentence motion, statement of errors complained of on appeal, and

his concise statement of reasons for allowance of appeal. See Corley, 31

A.3d at 296. Moreover, Appellant’s challenge to the application of the deadly

weapon enhancement raises a substantial question. See Commonwealth v.

Tavarez, 174 A.3d 7, 10 (Pa. Super. 2017). Therefore, we will review this

claim.

      In matters involving the discretionary aspects of sentencing, our well-

settled standard of review 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.

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation

omitted).

      Application of the deadly weapon enhancement of sentencing guidelines

provided as follows:

      (a) Deadly Weapon Enhancement.




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       (1) When the court determines that the offender possessed a
      deadly weapon during the commission of the current conviction
      offense, the court shall consider the DWE/Possessed Matrix (§
      303.17). An offender has possessed a deadly weapon if any of
      the following were on the offender’s person or within his
      immediate physical control:

         (i) Any firearm, (as defined in 42 Pa.C.S. § 9712) whether
         loaded or unloaded[.]

204 Pa. Code § 303.10(a)(1)(i) (eff. June 2005) (emphasis added). A trial

court can apply the deadly weapon possessed enhancement when sentencing

a defendant who does not actually possess such a weapon. See Phillips, 946

A.2d at 114. Specifically, this Court has held that the application of the deadly

weapon possessed enhancement was appropriate if the defendant (1) was in

the immediate vicinity of his armed coconspirator when a firearm was used to

threaten a robbery victim, (2) had knowledge of the existence of the firearm,

and (3) “could easily have been given or taken the firearm at any moment

during the robbery.”     See id. (citation, footnote, and quotation marks

omitted).

      Instantly, the complainant testified that Appellant and another man

approached him and demanded his money.           N.T. Trial, 5/1/09, at 17.   As

Appellant’s coconspirator stood about a foot away and kept a firearm pointed

at the complainant’s chest, Appellant reached into the complainant’s pockets

and removed money and a cell phone. Id. at 22-23. This testimony from the

complainant justified the trial court’s decision to apply the deadly weapon

possessed enhancement. See Phillips, 946 A.2d at 114.



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      Next, Appellant challenges the trial court’s sentence as unreasonable

under the circumstances of this case. Appellant, however, did not preserve

this claim in his post-sentence motion. Therefore, the claim is waived. See

Corley, 31 A.3d at 296.

      Even if we were to address Appellant’s claim, we would conclude that

no relief was due.    Section 9721 of the Sentencing Code states that in

sentencing a defendant,

      the court shall follow the general principle that 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. The court shall also
      consider any guidelines for sentencing and resentencing adopted
      by the Pennsylvania Commission on Sentencing . . . .

42 Pa.C.S. § 9721(b). “Generally, Pennsylvania law affords the sentencing

court discretion to impose its sentence concurrently or consecutively to other

sentences being imposed at the same time or to sentences already imposed.”

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citation

omitted).

      “When reviewing a sentence outside of the guideline range, the

essential question is whether the sentence imposed was reasonable.            An

appellate court must vacate and remand a case where it finds that the

sentencing court sentenced outside the sentencing guidelines and the

sentence is unreasonable.” Commonwealth v. Sheller, 961 A.2d 187, 190

(Pa. Super. 2008) (citations and quotation marks omitted). Section 9781(d)


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sets   forth   the   factors   considered   by   this   Court   in   evaluating   the

reasonableness of a sentence outside the guidelines:

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

       (1) The nature and 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 presentence investigation.

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

       (4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

       “A sentence may be found unreasonable if it fails to properly account for

these four statutory factors. A sentence may also be found unreasonable if

the sentence was imposed without express or implicit consideration by the

sentencing court of the general standards applicable to sentencing.” Sheller,

961 A.2d at 191 (citation and quotation marks omitted). Moreover, where a

pre-sentence investigation (PSI) report exists, we shall “presume that the

sentencing judge was aware of the relevant information regarding the

defendant’s character and weighed those considerations along with mitigating

statutory factors.” Commonwealth v. Walls, 926 A.2d 957, 967 n.7 (Pa.

2007) (citation omitted).

       Instantly, the trial court provided the following reasons to support its

sentencing decision:

       We’ve got our starting point here, using the matrix that I believe
       we should be using, calls for a standard range using the deadly


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       weapon enhancement possessing matrix of anywhere from 69 to
       81 plus or minus 12.

       I note for the record [Appellant’s] own words show no remorse
       whatsoever for what he did to [the complainant]. He’s accepted
       no responsibility whatsoever. Still maintains the preposterous
       defense that the jury didn’t buy. I don’t buy.[5]

       That means that when you don’t accept responsibility, when you
       don’t show remorse for what you’ve done for your violent crimes,
       that you’re not even close to being rehabilitated.

       And I’m supposed to take in your potential for rehabilitation when
       I give this individualized sentence.            Your potential for
       rehabilitation as you sit in front of me is zero.

       You’ve learned nothing. And I agree with [the author of the PSI],
       who indicated that, you would be a threat because of what your
       record shows. And you’re self-absorbed, self-centered attitude,
       which I may add is manipulative.

       So I also note that I respect the guidelines. But here [Appellant]
       got at least one break where [sentences in an unrelated case]
       were imposed in a concurrent fashion.

                                       *       *    *

       And although I agree, in part, with what [Appellant’s counsel]
       indicated, that perhaps this is a routine commonplace robbery,

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5 At trial, Appellant testified that he was alone and walking to a friend’s house
on the night of the robbery. N.T. Trial, 5/4/09, at 12. An unknown male
approached Appellant, brandished a firearm, and threatened to shoot him if
he did not hand over his money. Id. at 14-16. As Appellant complied with
the gunman’s demands, the complainant approached. Id. at 16. Appellant
testified that the gunman told him, “You’re going to help me rob [the
complainant] or I’m going to . . . kill you.” Id. Thereafter, Appellant told the
complainant “this is a stick-up.” Id. at 17. At sentencing, Appellant reiterated
that his trial testimony “was true whether the jury saw it my way or not.” N.T.
Sentencing at 13.




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       [Appellant] did utter some threatening words to [the complainant]
       that “run or I’ll shoot you.”[6]

       It was additional cruelty that didn’t need to be inflicted upon a
       frightened human being who had a right to be walking down that
       street in peace and quiet which you violated.

N.T. Sentencing at 15-17.

       Significantly, the trial court had Appellant’s PSI.   Therefore, we can

presume it was aware of the relevant sentencing factors. See Walls, 926

A.2d at 967 n.7. Further, the trial court placed its reasons for imposing the

consecutive sentences on the record, emphasizing concerns about Appellant’s

prospects for rehabilitation and inability to accept responsibility for the

offenses. Our review of the record also reveals that the sentences accounted

for the nature and circumstances of the offense, the history and characteristics

of Appellant, the information in the PSI, and the guidelines. See 42 Pa.C.S.

§ 9781(d).

       On this record, and in light of our standards of review, we conclude the

trial court’s sentence was not unreasonable. See Walls, 926 A.2d at 967-68;

Sheller, 961 A.2d at 191. Based on our review of the record, the trial court

did not abuse its discretion in imposing consecutive sentences above the

aggravated range of the guidelines. See Raven, 97 A.3d at 1253. Therefore,

Appellant’s claim is meritless.

       Judgment of sentence affirmed.


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6 Specifically, the complainant testified that Appellant told him, “Don’t even
try it or we’ll shoot you.” N.T. Trial, 5/1/09, at 25.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/13/20




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