J-S61029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JOSEPH CARTAGENA

                            Appellant                   No. 165 MDA 2015


        Appeal from the Judgment of Sentence of September 3, 2014
             In the Court of Common Pleas of Luzerne County
             Criminal Division at No.: CP-40-CR-0000758-2014


BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                          FILED NOVEMBER 09, 2015

       Joseph Cartagena appeals the September 3, 2014 judgment of

sentence. We affirm.

       The sentencing court summarized the history of this case as follows:

       The facts which gave rise to this action occurred on December
       20, 2013, at approximately 3:22 p.m. On that date and time,
       officers of the Larksville Police Department were dispatched to
       investigate a hit and run motor vehicle accident. When they
       arrived at the scene, the officers found a vehicle with heavy
       damage to the rear driver side wheel/quarter panel area and the
       rear window was also observed to be smashed out of the vehicle.
       The driver of the damaged vehicle was being treated for injuries.

       [While the Larksville officers were still at the accident scene, t]he
       fleeing vehicle and driver were found in an adjoining town,
       Edwardsville, Pennsylvania. When [Cartagena] was identified as
       the driver, he was reported to have glossy eyes and slurred
       speech. [Cartagena] agreed to take a breathalyzer test, which
____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
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       gave a positive reading for alcohol. At that time, [Cartagena]
       admitted that he had consumed two 24[-]ounce beers about two
       hours prior to the stop. He was then taken into custody. A
       chemical blood test was conducted [approximately one and one-
       half hours after the accident], with the agreement of
       [Cartagena], and revealed that [Cartagena] had a blood alcohol
       level of 0.174%.

       On June 20, 2014, [Cartagena] entered into a negotiated guilty
       plea[1] to three counts: (1) [driving under the influence (“DUI”)]
       – 2nd offense (misdemeanor); (2) accident[s] involving [death
       or] personal injury     while not properly licensed [(“AIDPI”)]
       (misdemeanor of the second degree); and (3) DUI – highest rate
       of alcohol – 2nd offense (misdemeanor of the first degree).
       Subsequent thereto, on September 3, 2014[, Cartagena] was
       sentenced as follows: [fourteen to twenty-eight months in prison
       to be followed by one year of probation for DUI – highest rate, of
       which the first ninety days were the applicable mandatory
       minimum sentence, and a concurrent twelve to twenty-four
       month sentence for AIDPI. The sentencing court determined
       that the first DUI count merged with DUI – highest offense for
       sentencing purposes.]

       [Cartagena] filed a [timely] motion for reconsideration of
       sentencing that was denied [on September 12, 2014].

Sentencing Court Opinion, 6/10/2015, at 1-2 (capitalization modified).

       On October 9, 2014, Cartagena filed a notice of appeal. On October

14, 2014, the sentencing court ordered Cartagena to file a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).            After

being granted an extension, Cartagena timely filed his concise statement.

On June 10, 2015, the sentencing court filed its opinion pursuant to

Pa.R.A.P. 1925(a).
____________________________________________


1
      Although the court and the parties refer to this as a negotiated plea,
the parties had no agreement about the sentence.



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      Cartagena raises one issue on appeal:

      Whether the [sentencing] court abused its discretion by
      sentencing [Cartagena] in the aggravated guideline range in
      regards to Count 2, accidents involving death or personal injury,
      not properly licensed, graded as a misdemeanor of the second
      degree, to a period of incarceration of 12 to 24 months, when
      the standard range for this offense was one to nine months and
      the court failed to state its reasons on the record for sentencing
      in the aggravated range?

Cartagena’s Brief at 1 (capitalization modified).

      Cartagena’s challenge implicates the discretionary aspects of his

sentence. As such, we review the sentencing court’s sentence for an abuse

of discretion.   Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super.

2014). Further,

      [t]he right to appellate review of the discretionary aspects of a
      sentence is not absolute, and must be considered a petition for
      permission to appeal. An appellant must satisfy a four-part test
      to invoke this Court’s jurisdiction when challenging the
      discretionary aspects of a sentence.

         [W]e conduct a four-part analysis to determine: (1)
         whether appellant has filed a timely notice of appeal; (2)
         whether the issue was properly preserved at sentencing or
         in a motion to reconsider and modify sentence; (3)
         whether appellant’s brief has a fatal defect; and (4)
         whether there is a substantial question that the sentence
         appealed from is not appropriate under the Sentencing
         Code.

Id. (quoting Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super.

2010)) (citations omitted).

      Instantly, Cartagena filed a timely notice of appeal, and he preserved

the issue in his motion to reconsider his sentence.        When challenging


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discretionary aspects of sentence, an appellant must include a concise

statement, pursuant to Pa.R.A.P. 2119(f), that “articulate[s] ‘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. Shugars, 895

A.2d 1270, 1274 (Pa. Super. 2006).             We then examine the Rule 2119(f)

statement to determine whether the appellant has raised a substantial

question.     Id.     Cartagena’s brief contains a Rule 2119(f) statement.2

Cartagena’s Brief at 5. Therefore, we must determine whether he has raised

a substantial question.

       Cartagena asserts that the sentencing court sentenced him in the

aggravated range and failed to state its reasons for doing so on the record.

Id. We previously held that such a claim raises a substantial question. See

Commonwealth v. Simpson, 829 A.2d 334, 338 (Pa. Super. 2003);



____________________________________________


2
      Arguably, Cartagena’s Rule 2119(f) statement, which consists of one
sentence without any citation to authority and baldly asserts that “[t]he
[sentencing] court[’s failure] to state its reasons for sentencing in the
aggravated range, raises a ‘substantial’ question, which permits appellate
review of discretionary aspects of [Cartagena’s] sentence,” see Cartagena’s
Brief at 5, is inadequate because there is little to examine in order to
determine whether Cartagena raised a substantial question. However, “[i]n
the absence of any objection from the Commonwealth, we are empowered
to review claims that otherwise fail to comply with Rule 2119(f).” Shugars,
895 A.2d at 1274. Here, the Commonwealth has asserted no objection to
Cartagena’s Rule 2119(f) statement.




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Commonwealth v. Wellor, 731 A.2d 152, 155 (Pa. Super. 1999).

Therefore, we proceed to the merits of Cartagena’s appeal.

      Cartagena argues that he was sentenced in the aggravated range for

AIDPI, but that the court did not state any reasons for sentencing in that

range. Cartagena asserts that the sentencing court listened to his and the

Commonwealth’s     arguments     and    moved   directly   to   announcing   the

sentence. Without stating its reasons, Cartagena contends that he cannot

be assured that the sentencing court did not rely upon impermissible factors

in pronouncing his sentence. Cartagena’s Brief at 6-7.

      We have held as follows:

      A sentencing court must state its reasons for the sentence on
      the record. A sentencing judge can satisfy the requirement that
      reasons for imposing sentence be placed on the record by
      indicating that he has been informed by the [pre-sentence
      investigation (“PSI”)] report.

Commonwealth v. Burns, 765 A.2d 1144, 1151 (Pa. Super. 2000)

(citations omitted).

      The sentencing court provided several reasons for the sentence

imposed. The sentencing court stated that it had reviewed the PSI. Notes

of Testimony, 9/3/2014, at 9.       The sentencing court demonstrated an

awareness of Cartagena’s medical issues. Id. at 7-9. The sentencing court

noted the victim’s testimony regarding her continued medical problems and

missed work.    Id. at 4, 9.   The sentencing court also remarked upon the

seriousness of the offense, saying that “[a]nother person’s life was almost



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taken by [Cartagena’s] actions.”   Id. at 13.   The sentencing court cited

Cartagena’s prior record of both misdemeanors and felonies, as well as a

prior DUI. Id. at 4-5, 13. Based upon the sentencing court’s reliance upon

the PSI and its statements on the record, the sentencing court provided

sufficient reasons for sentencing Cartagena in the aggravated range.

Cartagena’s claim that the sentencing court did not provide reasons for its

sentence is without merit.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/2015




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