J-S03044-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JEHOVAH MALDONADO

                            Appellant                 No. 2187 EDA 2014


             Appeal from the Judgment of Sentence June 17, 2014
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0002541-2013


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OTT, J.

MEMORANDUM BY OTT, J.:                            FILED FEBRUARY 10, 2015

        Jehovah Maldonado appeals from the judgment of sentence imposed

on June 17, 2014, in the Court of Common Pleas of Monroe County. A jury

found Maldonado guilty of burglary, conspiracy to commit robbery, criminal

trespass, and recklessly endangering another person.1 The charges arose as

a result of Maldonado’s participation with others in an armed home invasion

where shots were fired.2           The trial court sentenced Maldonado to an

aggregate term of four to ten years’ imprisonment.3 In this timely appeal,
____________________________________________


1
  18 Pa.C.S. §§ 3502(a)(1), 3701(a)(1)(ii), 3503(a)(1)(ii), and 2705,
respectively.
2
    Maldonado and another individual were hit by the shots.
3
  The trial court sentenced Maldonado to a term of 24 to 60 months
imprisonment for the charge of burglary, a felony of the first degree; a
consecutive period of 24-60 months’ imprisonment for the charge of criminal
(Footnote Continued Next Page)
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Maldonado claims the trial court erred and abused its discretion in (1)

“sentencing [Maldonado] who has a prior record score of zero at the top of

the standard range for each count,”4 and (2) “sentencing [Maldonado] to

consecutive sentences which aggregately total a sentence greater than even

the aggravated range for each count.”             Maldonado’s Brief at 6.   For the

following reasons, we affirm.

      The principles that guide our review are 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.

                       _______________________
(Footnote Continued)

conspiracy to commit robbery,         a felony of the first degree; and a concurrent
term of one to 12 months’             imprisonment for the charge of recklessly
endangering another person,           a misdemeanor of the second degree. The
criminal trespass charge, a           felony of the second degree, merged for
sentencing purposes.
4
  Based on Maldonado’s prior record score of zero, for the burglary charge
(offense gravity score of 9), the standard range was 12 to 24 months, with
an aggravated range of 36 months; for the conspiracy to commit robbery
charge (offense gravity score of 9), the standard range was 12 to 24
months, with an aggravated range of 36 months; and for the charge of
recklessly endangering another person (offense gravity score of three), the
standard range was restorative sanctions to one months, with an aggravated
range of four months. See Maldonado’s Brief at 10.




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           The 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.


                                           ****

           A substantial question will be found where an appellant
           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. At a
           minimum, the Rule 2119(f) statement must articulate
           what particular provision of the code is violated, what
           fundamental norms the sentence violates, and the
           manner in which it violates that norm.

Commonwealth v. Zirkle, ___ A.3d ___, ___ [2014 Pa. Super. LEXIS

4563] (Pa. Super. 2014) (citations omitted).

       Here, Maldonado preserved his discretionary aspects of sentencing

challenge by filing a motion to modify sentence within 10 days of sentencing,

and a timely appeal.5          See Pa.R.Crim.P. 720(A).    Maldonado has also
____________________________________________


5
  Maldonado also complied with the court’s order to file a Pa.R.A.P. 1925(b)
statement.



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included in his brief a concise statement pursuant to Pa.R.A.P. 2119(f). See

Maldonado’s Brief at 9–11.       The only remaining question is whether

Maldonado has raised a substantial question.

     First, Maldonado argues his sentence is manifestly excessive due to

the sentences for the burglary and conspiracy charges being ordered to run

consecutively.   With regard to such a claim, this Court has stated:

     A challenge to the imposition of consecutive rather than
     concurrent sentences does not present a substantial question
     regarding the discretionary aspects of sentence. Lloyd, 878 A.2d
     at 873. “We see no reason why [a defendant] should be afforded
     a volume discount’ for his crimes by having all sentences run
     concurrently.” Hoag, 665 A.2d at 1214.

Zirkle, supra at ___ (citation omitted). Nevertheless,

     we have recognized that a sentence can be so manifestly
     excessive in extreme circumstances that it may create a
     substantial question. Commonwealth v. Moury, 2010 PA Super
     46, 992 A.2d 162, 171-72 (Pa. Super. 2010). When determining
     whether a substantial question has been raised, we have focused
     upon “whether the decision to sentence consecutively raises the
     aggregate sentence to, what appears upon its face to be, an
     excessive level in light of the criminal conduct in this case.”
     [Commonwealth v.] Mastromarino, 2 A.3d at 588 (quoting
     Commonwealth v. Gonzalez-Dejusus, 2010 PA Super 62, 994
     A.2d 595, 599 (Pa. Super. 2010)).

Id. at ___ (footnote omitted). Finally,

     where a sentence is within the standard range of the guidelines,
     Pennsylvania law views the sentence as appropriate under the
     Sentencing Code.

Moury, supra, at 171 (citation omitted).

     Here, all of Maldonado’s sentences were at the high end of the

standard range. Given that Maldonado faced a possible maximum sentence

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of 20 to 40 years’ incarceration on the burglary and conspiracy charges, the

aggregate sentence of four to ten years’ imprisonment is not unduly harsh

and does not represent an extreme circumstance.                    Accordingly, this issue

does not raise a substantial question.

       Next, Maldonado claims his aggregate sentence is manifestly excessive

because the trial court failed to consider mitigating circumstances, i.e., his

age (19 years old), his lack of a prior record score, the fact he had never

been incarcerated prior to this incident, and the extreme inconsistencies in

the sentences of his co-defendants.                    This claim also fails to raise a

substantial question. See Moury, 992 A.2d at 171 (“An allegation that the

sentencing court failed to consider certain mitigating factors generally does

not necessarily raise a substantial question.”).6

       However, Maldonado’s claim that the court improperly focused only on

the   nature    of   the   crime    does       raise    a   substantial   question.   See

Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa. Super. 2013) (“[A]

claim the trial court focused solely on the nature of the offense, without

considering the protection of the public or the rehabilitative needs of the




____________________________________________


6
  Moury, citing Commonwealth v. Felmlee, 828 A.2d 1105 (Pa. Super.
2003) (en banc), does note that a substantial question is raised when the
sentencing court imposes an aggravated range sentence without adequately
considering mitigating factors. Here, there is no aggravated range sentence
at issue.



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appellant, as is required by 42 Pa.C.S.A. § 9721(b), presents a substantial

question.”), appeal denied, 85 A.3d 481 (Pa. 2014).

      At sentencing, Maldonado’s counsel requested that the court impose

concurrent, standard range sentences, resulting in a two to four year

sentence.    See N.T., 6/17/2014, at 8–9.     Maldonado addressed the court

and stated that he took responsibility for his actions. He also told the court

that while he was in juvenile placement he had “accomplished a lot” in

obtaining a GED, various certifications, and “vo-tech things,” and while in jail

he had completed a class in life applications, and was about to start a class

in anger management. Id. at 9–10. The court noted:

      [Y]ou just got off of supervision when you did this, and I’m
      looking and you were at PA Childcare, Vision Quest, violated,
      Glen Mills, remanded, remanded, remanded, you were released,
      then you were violated, you were placed at Abraxis, returned to
      Abraxis after review.

Id. at 10.

      The court noted that in this case “people got shot, including

[Maldonado], people could have died.” N.T., 6/17/2014, at 14. The court

questioned, “[H]ow do you think you would feel if [these crimes] happened

to you[.]” Id. Maldonado responded that he didn’t possess a firearm and

requested a two-to-four years term of incarceration. Id. at 15.     Maldonado

told the court:

      I just think that, I just want to go out there, and this is an
      opportunity for me to think, and I’ve thought a lot and I’ve been
      through a lot of classes, and I’ve heard other people’s
      experiences, because there’s people in [jail] that’s got similar


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     charges and stuff like that, and I’m attending these classes and
     I’m learning from older people, you know, who are well, have
     way more wisdom than me, that are teaching me things I need
     to learn, you know, and I’m ready to go out there in society,
     within the next year, that’s when I get two to four or two to five,
     so I can go back to going to college. I’m not going [to] surround
     myself with wrong people, I just put myself in a position where I
     surround myself around negativity and I’m a positive person, I
     just get myself in the wrong, I get myself in the wrong
     situations, and my job and my goal is to not do that, my
     aspiration in life is just to be better.

Id. at 16–17.

     Later, in listening to counsel’s arguments, the court stated:

     Here’s my concern, I still am concerned that it’s talk and that if
     he’s pushed into a corner, into a disagreement, the other side
     comes out, the side that failed at juvenile placement, who got off
     supervision and then does this.

Id. at 19–20.

     The court, at the conclusion of the hearing, placed the following

comments on the record:

     The one thing, and this is what I go back to and I think I’ve said
     it before, in his statement [Maldonado] in the PSI [Presentence
     Investigation Report] said I’m ready to prove to everybody that
     if given the opportunity I can be a better person and move on
     from this. My concern is he’s already been given so many
     opportunities and yet I stand here with a 19 year old person
     before me[.] … [Y]ou have been given so many chances to make
     something out of yourself and to learn to make good decisions
     for yourself, and it seems like your history is replete with
     blowing those opportunities, and that’s where I struggle because
     that’s really what I have to judge you by. … I find you very
     charismatic, charming, a good salesman for yourself, but I’m not
     sure that I believe that if you were pushed into a corner,
     confronted, challenged in a way that you found disagreeable,
     that you wouldn’t revert to the old behaviors, that you wouldn’t
     fail to play by the rules, because that’s what your history shows
     you’ve done in the past, and as I’ve said, you were just off


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       supervision. I know that you did a lot of things and you received
       the OSHA certification, the CPR, the first aid, the automotive
       repair, but those were all done while you were in placement, if I
       remember correctly.[7]

                                           ****

       So as I said, I’m troubled by your history and that you were
       recently discharged from supervision and here we go again. I
       note that there are no aggravating or mitigating circumstances
       in the PSI, …. The question then becomes where in the standard
       range does he belong. I just go back to the fact that his history
       is replete, and maybe some of it’s not by his own fault, maybe
       some of it is the upbringing that he, I don’t think that it was
       easiest or the best by any stretch of the imagination and that
       really isn’t a choice that you got to make, but then you were put
       in placement and you were given opportunities away from those
       settings you continued to violate[], you continued to have
       problems, you continued to have an inability to follow the rules,
       and that is really what concerns me, and so if I judge you by
       character and prior conduct, I think it puts you at the higher end
       of the standard range. … So for the reasons stated on the
       record as well as those in the PSI, which I will adopt in its
       entirety, we’ll issue the following order[.]

N.T., 6/17/2014, at 24–28.

       “Where pre-sentence reports exist, we shall continue to presume that

the sentencing judge was aware of relevant information regarding the

defendant’s     character     and   weighed       those   considerations   along   with

mitigating statutory factors.” Commonwealth v. Devers, 546 A.2d 12, 18

(Pa. 1988). Furthermore, the court’s on-the-record rationale for its sentence

demonstrates that the trial court did not focus solely on the nature of the


____________________________________________


7
 Maldonado explained to the trial court that “The automotive thing, I was
working, I worked.” N.T., 6/17/2014, at 26.



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crime and the impact on the victims, but rather considered, as well, the

protection of the public or the rehabilitative needs of Maldonado, and

therefore considered all relevant Section 9721(b) factors. Accordingly, we

reject Maldonado’s claim the trial court abused its discretion in imposing the

four-to-ten year sentence of incarceration.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/10/2015




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