J-S69009-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JOSE BENESARIO

                            Appellant                    No. 392 EDA 2015


          Appeal from the Judgment of Sentence September 19, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0006517-2013


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

MEMORANDUM BY GANTMAN, P.J.:                       FILED DECEMBER 23, 2015

        Appellant, Jose Benesario, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following an open

guilty plea to third degree murder, firearms not to be carried without a

license, carrying firearms on public streets in Philadelphia, and possessing

instruments of crime.1 We affirm.

        In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them. We add only that Appellant timely filed a notice of appeal on

February 4, 2015. The following day, the court ordered Appellant to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
____________________________________________


1
    18 Pa.C.S.A. §§ 2502(c), 6106(a)(1), 6108, and 907(a), respectively.
J-S69009-15


1925(b), and Appellant timely complied after an extension of time.

       Appellant raises the following issue for our review:

          DID THE SENTENCING COURT ABUSE ITS DISCRETION BY
          IMPOSING AN EXCESSIVE SENTENCE THAT DID NOT TAKE
          INTO CONSIDERATION [APPELLANT’S] REHABILITATIVE
          NEEDS, THE SENTENCING GUIDELINES, THE FACTORS
          SET FORTH IN 42 PA.C.S. § 9721, THE MITIGATING
          FACTORS OFFERED AT SENTENC[ING], [APPELLANT’S]
          LACK OF CRIMINAL HISTORY AND THE NATURE OF THE
          OFFENSE?

(Appellant’s Brief at 7).

       Appellant argues his aggregate sentence of 23½ to 47 years’

imprisonment is excessive. Specifically, Appellant claims the court failed to

consider mitigating factors, including Appellant’s rehabilitative needs, the

protection of the public, the nature and gravity of the offense, Appellant’s

lack of criminal history, and the testimony from Appellant’s character

witnesses at sentencing. Appellant alleges the court relied principally on the

victim impact statements when sentencing him to 20 to 40 years’

imprisonment for third degree murder, a standard range sentence, and a

consecutive 3½ to 7 years’ imprisonment for firearms not to be carried

without a license, an aggravated range sentence. Appellant maintains this

Court should vacate his judgment of sentence and remand for resentencing.

Appellant challenges the discretionary aspects of sentencing. 2          See

____________________________________________


2
  “[W]hile a…plea which includes sentence negotiation ordinarily precludes
a defendant from contesting the validity of his…sentence other than to argue
(Footnote Continued Next Page)


                                           -2-
J-S69009-15


Commonwealth v. Cruz-Centeno, 668 A.2d 536 (Pa.Super. 1995)

(explaining claim that court did not consider mitigating factors challenges

discretionary aspects of sentencing).

      This Court is limited to determining the validity of the proceeding and

the legality of the judgment of sentence imposed.                  Commonwealth v.

Heilman, 876 A.2d 1021 (Pa.Super. 2005).                    Notwithstanding the stated

scope of review suggesting only the legality of a sentence is reviewable, an

appellant may also challenge the discretionary aspects of a sentence

imposed. Commonwealth v. Sierra, 752 A.2d 910 (Pa.Super. 2000).

      Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right.              Id.   Prior to reaching the merits of a

discretionary sentencing issue:

          [W]e conduct 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).
                       _______________________
(Footnote Continued)

that the sentence is illegal or that the sentencing court did not have
jurisdiction, open plea agreements are an exception in which a defendant
will not be precluded from appealing the discretionary aspects of the
sentence.” Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa.Super.
2005) (emphasis in original). “An ‘open’ plea agreement is one in which
there is no negotiated sentence.” Id. at 363 n.1. Here, Appellant’s plea
was “open” as to sentencing, so a challenge to the discretionary aspects of
his sentence is available.



                                            -3-
J-S69009-15



Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006).

        When appealing the discretionary aspects of a sentence, an appellant

must invoke the appellate court’s jurisdiction by including in his brief a

separate concise statement demonstrating that there is a substantial

question as to the appropriateness of the sentence under the Sentencing

Code.    Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);

Pa.R.A.P. 2119(f).      The concise statement must indicate “where the

sentence falls in relation to the sentencing guidelines and what particular

provision of the code it violates.”   Commonwealth v. Kiesel, 854 A.2d

530, 532 (Pa.Super. 2004) (quoting Commonwealth v. Goggins, 748 A.2d

721, 727 (Pa.Super. 2000), appeal denied, 563 Pa. 672, 759 A.2d 920

(2000)).

        “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.”     Commonwealth v. Anderson, 830

A.2d 1013, 1018 (Pa.Super. 2003) (citation omitted). 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.”         Sierra, supra at 912-13.

Generally, “[a]n allegation that a sentencing court failed to consider or did

not adequately consider certain factors does not raise a substantial question

                                      -4-
J-S69009-15


that the sentence was inappropriate.”         Cruz-Centeno, supra at 545

(internal quotation marks omitted). Nevertheless, a substantial question is

raised where an appellant alleges the sentencing court erred by imposing an

aggravated    range    sentence     without   consideration    of    mitigating

circumstances.     Commonwealth v. Felmlee, 828 A.2d 1105 (Pa.Super.

2003) (en banc).

      Instantly, during the sentencing hearing, the court stated its reasoning

for Appellant’s sentence as follows:

         I’m going to take into account everything presented to me
         during the history of this case.

         I’ll take into account the evidence presented at the guilty
         plea hearing, everything in the presentence report which I
         have carefully considered.

         I’ll take into account the presentations here at the
         sentencing hearing, all the mitigating evidence that was
         submitted on behalf of [Appellant], statements from family
         members on both sides….

         I’ll take into account the impact on…the victim’s family.

         Let me go through the statutory requirements, the things I
         need to consider statutorily. First of all, a need for the
         protection of the public. And I do have concerns about the
         protection of the public.

         I do believe…[Appellant] has done a great many wonderful
         things for his family. On the other hand, the offense that
         was committed in this case is not consistent with someone
         that has a peaceful disposition and an outlook like a
         normal member of society would have. It’s an extreme
         and egregious misbehavior to gun somebody down in the
         fashion that happened in this case. Notwithstanding the
         good things in his background which I acknowledge and
         accept, I certainly have hope that he will be a productive

                                       -5-
J-S69009-15


       member of society [someday], I have concerns.

       In addition, the next element is the gravity of the offense
       in relation to its impact on the victim. We all know there is
       no greater impact on a victim than a murder case. The
       victim is gone and, as [the Assistant District Attorney] so
       eloquently pointed out, [the victim] will not be here
       another day on this earth and no matter what sentence I
       give [Appellant], he will be able to enjoy many more years
       of life whether or not he’s in prison.

       I’ll take into account his rehabilitative needs, which the
       statute requires me to do.

       In terms of the mitigating factors, there are several, the
       fact that he’s raising five children, he’s a good family man.
       I think that’s clear. He was a good neighbor.

       I’m not going to make a decision since there’s inadequate
       information on what motivated this killing, I don’t think it’s
       necessary for me to make that decision. Whether it was
       because of a threat to his brother or because the victim,
       Mr. Santiago, was selling drugs on the corner, either way
       as counsel acknowledged…you cannot walk up to
       somebody and execute them firing off at least 14 rounds.
       That’s not permitted in a civilized society.

       I will take into account the remorse and acceptance of
       responsibility. That’s a significant mitigating factor.

       On the aggravating side, the prior record of zero of course
       everyone      would   acknowledge     grossly   understates
       [Appellant’s] degree of criminality as a career drug dealer,
       and many of the things [the Assistant District Attorney]
       said are of course true. While [Appellant] may have been
       extraordinarily generous with the proceeds of his drug
       operation and he was not a street level dealer, and that is
       a significant aggravator.

       Also, of course, this is not a garden variety third-degree
       murder firing off 14 rounds at a defenseless person, killing
       him.

       When I consider everything, I’m not going to give

                                   -6-
J-S69009-15


        [Appellant] the maximum sentence. I don’t think that’s
        appropriate. The big break here was given to him of
        course by the Commonwealth when they agreed to third-
        degree murder and the other charges, but I do believe that
        the standard range sentence at the top of the guideline
        range is appropriate for third-degree murder and I’m also
        going to give him a consecutive sentence on one of the
        firearms charges, but in recognition of the mitigation here
        I will not impose a sentence on the remaining firearms
        charges.

                                   *    *     *

        Moving on to the firearms charges, on the charge for
        violation of the Uniform Firearms Act, Section 6106, which
        is a third-degree felony, I will sentence him to three and a
        half to seven years in state prison. That’s a departure
        above the guidelines. That’s to achieve an aggregate
        sentence that’s appropriate under all the circumstances
        and to reflect the egregiousness of the behavior committed
        with the firearm.

(N.T. Sentencing, 9/19/14, at 54-59).

     After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Glenn B.

Bronson, we conclude Appellant’s issue merits no relief. The court’s opinion

comprehensively discuses and properly disposes of Appellant’s question

presented. (See Trial Court Opinion, filed May 21, 2015, at 3-4) (finding:

court explicitly considered all evidence Appellant alleges court did not

consider,   including   evidence   during    guilty   plea   hearing,   information




                                       -7-
J-S69009-15


contained in pre-sentence investigative report,3 sentencing guidelines, need

to protect public, gravity of offense and its impact on victim, mitigation

evidence,     testimony      submitted         on    Appellant’s    behalf,   Appellant’s

rehabilitative    needs,     and    Appellant’s        remorse     and    acceptance    of

responsibility;    record    demonstrates           sentences    were    reasonable    and

commensurate with Appellant’s outrageous criminal conduct of firing gun at

victim 14 times, striking him 11 times, including multiple times after victim

had fallen to ground and was either defenseless or dead; Appellant’s prior

record score of zero underestimated his degree of criminality, as he was a

career drug dealer who managed sale of drugs in area where crime was

committed; aggregate sentence of 23½ to 47 years’ imprisonment reflected

balancing of all relevant sentencing factors, including Appellant’s mitigating

evidence). The record supports the court’s decision; therefore, we have no

reason to disturb it.       Accordingly, we affirm on the basis of the court’s

opinion.

       Judgment of sentence affirmed.




____________________________________________


3
  Where a sentencing court had the benefit of a pre-sentence investigative
report, the law presumes the court was aware of and weighed the relevant
information regarding the defendant’s character and mitigating factors. See
Tirado, supra.



                                           -8-
J-S69009-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/23/2015




                          -9-
                                                                                                   Circulated 12/11/2015 10:36 AM




                                  IN THE COURT OF COMMON PLEAS
                             FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                      CRIMINAL TRIAL DIVISION

       COMMONWEALTH OF                                                                    CP-51-CR-0006517-2013
       PENNSYLVANIA                      CP-51-CR-0006517-2013 Comm. v. BENESARIO, JOSE
                                                             Opinion                                 FILED
                 v.

        JOSE BENESARIO                                       IlIlllllllII llll
                                               II Il I llll7297882791
                                                                                                 MAY 2 1 2015
                                                                                                 POltTrial Unit
                                                          OPINION

        BRONSON, J.                                                                       May 21, 2015




        On July 21, 2014, defendant Jose Benesario entered an open guilty plea to the charges of

third-degree murder (18 Pa.C.S. § 2502), carrying a firearm without a license (18 Pa.C.S. §

6106), carrying a firearm on the streets of Philadelphia (18 Pa.C.S. § 6108), and possessing an

instrument of crime (18 Pa.C.S. § 907). On September 19, 2014, the Court imposed an aggregate

sentence of twenty-three and a half (23Yz) to forty-seven (47) years incarceration in state prison.

Defendant filed post-sentence motions, which the Court denied on January 6, 2015.

        Defendant has now appealed from the judgment of sentence entered by the Court on the

grounds that the Court abused its discretion by "imposing an excessive sentence .... " Statement

of Errors Complained of on Appeal ("Statement of Errors") at, 1. For the reasons set forth

below, defendant's claim is without merit and the judgment of sentence should be affirmed.

                                       I. FACTUALBACKGROUND

        The factual basis proffered by the Commonwealth for defendant's guilty plea established

                 1
the following.        N.T. 7/21/14 at 20-30.



1
 Defendant disputed the motive for the shooting as described by the Commonwealth. N.T. 7/21114at 29.
Otherwise, he agreed in substance to the Commonwealth's rendition of the facts. Id.
                                                                                  Circulated 12/11/2015 10:36 AM




        On March 25, 2013, at approximately 2:00 p.m., defendant approached Bezuir Santiago

at the area of 3045 North 4th Street in Philadelphia. N.T. 7/21/14 at 21, 24. Defendant controlled

the drug trade in that area and had an ongoing dispute with Santiago during which Santiago was

not permitted to sell drugs there. N.T. 7/21/14 at 23-25. As defendant approached Santiago,

defendant pulled out a semi-automatic firearm and shot Santiago multiple times. N.T. 7/21/14 at

24-26. After defendant began shooting, Santiago fell to the ground and defendant continued to

shoot. N.T. 24-26. Defendant fired fourteen shots and struck Santiago approximately eleven

times. N.T. 7/21/14 at 21, 23. After shooting Santiago, defendant fled the scene in a car. N.T.

7/21/14 at 24, 26.

                                            II. DISCUSSION

        Defendant's sole issue raised on appeal claims that the Court abused its discretion by

"imposing an excessive sentence that did not take into consideration [defendant's] rehabilitative

needs, the sentencing guidelines, the factors set forth in 42 Pa.C.S. § 9721, the mitigating factors

offered at sentence, [defendant's] lack of criminal history and the nature of the offense."

Statement of Errors at ,r 1. This claim is without merit.

       "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 that discretion."

Commonwealth v. Anderson, 552 A.2d 1064, 1072 (Pa. Super. 1988), appeal denied, 571 A.2d

379 (Pa. 1989); see Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007). The sentencing

court must consider the need to protect the public, the gravity of the offense in relation to the

impact upon the victim, the rehabilitative needs of the defendant, and the Sentencing Guidelines.

42 Pa.C.S. § 9721 (b); see Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa. Super. 2005)

(quoting Commonwealth v. Monahan, 860 A.2d 180, 184 (Pa. Super. 2004)). A sentence within




                                                  2
                                                                                              Circulated 12/11/2015 10:36 AM




the Guidelines may be vacated only if "the case involves circumstances where the application of

the Sentencing Guidelines would be clearly unreasonable."               42 Pa.C.S. § 9781(c)(2). Where the

sentence falls outside the Sentencing Guidelines, the sentence should be affirmed on appeal

unless it is "unreasonable." 42 Pa.C.S. § 9781(c)(3); see Commonwealth v. P.L.S., 894 A.2d 120,

130 (Pa. Super. 2006). "The sentencing court may deviate from the guidelines, if necessary, to

fashion a sentence which takes into account the protection of the public, the rehabilitative needs

of the defendant, and the gravity of the particular offenses as it relates to the impact on the life of

the victim and the community."          Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super.

2002), appeal denied, 820 A.2d 703 (Pa. 2003). The factual basis and reasons for the departure

must be stated on the record. Id.

         Here, in fashioning an appropriate sentence, the Court explicitly considered the evidence

presented during defendant's guilty plea hearing, the information contained in the pre-sentence

report, the Sentencing Guidelines, the need to protect the public, the gravity of the offense and its

impact on the victim, the mitigation evidence and testimony submitted on behalf of defendant,

the rehabilitative needs of defendant, as well as defendant's remorse and acceptance of

responsibility.    N.T. 9/19/14 at 54-58.2 Contrary to defendant's assertion in his Statement of

Errors, the Court explicitly stated that it considered all of the factors that defendant alleges that

the Court did not consider. Id. The Court sentenced defendant to 20 to 40 years incarceration

for the third degree murder charge and 3 Ya to 7 years incarceration on the carrying a firearm

without a license charge. N.T. 9/19/14 at 59. These sentences were to run consecutive to each

2
  Applying the Seventh Edition Sentencing Guidelines, the parties agreed that defendant's prior record score was
zero. N.T. 9/19114 at 5. The parties agreed that, using the deadly weapon used matrix, the charge of third-degree
murder was assigned a standard range of 90 months to the statutory limit. Using the basic sentencing matrix, the
parties agreed that the charge of carrying a firearm without a license was assigned a standard sentence of 12 to 24
months, plus or minus 12 months for the aggravated and mitigated ranges, respectively, that the charge of carrying a
firearm on the streets of Philadelphia was assigned a standard range of RS to 9 months, plus or minus 3 months for
the aggravated and mitigated ranges, respectively, and that the PIC charge was assigned a standard range of RS to l
month, plus or minus three months for the aggravated and mitigated ranges, respectively. N.T. 9/19/14 at 5-6.




                                                          3
                                                                                 Circulated 12/11/2015 10:36 AM




other, for an aggregate sentence of 23 Yi to 47 years incarceration. N.T. 9/19/14 at 59. While the

sentence on the third degree murder charge was within the standard range of the Sentencing

Guidelines, the sentence imposed on the firearm charge was an upward departure from the

Guidelines. Id. For the reasons explained by the Court during the sentencing hearing, this

departure was reasonable as this was done in order for the Court to achieve an aggregate

sentence which was fair under all the circumstances surrounding this case and to reflect the

egregiousness of defendant's actions with the firearm. Id.

       The record demonstrates that the sentence imposed by the Court was reasonable and

commensurate with the outrageous criminal conduct committed by defendant. Defendant

approached Santiago and fired his gun fourteen times, striking Santiago eleven times. Defendant

fired multiple times after Santiago had fallen to the ground, either defenseless or already dead.

While defendant had a prior record score of zero, all parties agreed and acknowledged that this

score grossly understated defendant's degree of criminality, as defendant was a career drug

dealer, managing the sale of drugs in the area where this crime was committed. The Court's

aggregate sentence of 23 Yi to 4 7 years explicitly reflected the Court's careful balancing of all

relevant sentencing factors, including the mitigating evidence submitted by defendant.       Because

there is no basis to defendant's claim that the sentence was in any way unreasonable, it should

not be disturbed.

                                         III. CONCLUSION

        For all of the foregoing reasons, the Court's judgment of sentence should be affirmed.

                                                               BY THE COURT:




                                                               GLENN B. BRONSON, J.




                                                  4
