J-S94011-16
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NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                   1   IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                           Appellee

                      v.

JESUS SANCHEZ -ECHEVARRIA

                           Appellant                  No. 1265 MDA 2016


              Appeal from the Judgment of Sentence July 14, 2016
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP- 06 -CR- 0005792 -2014



COMMONWEALTH OF PENNSYLVANIA                   i   IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                           Appellee

                      v.

JESUS M. SANCHEZ -ECHEVARRIA

                           Appellant                  No. 1266 MDA 2016


              Appeal from the Judgment of Sentence July 14, 2016
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP- 06 -CR- 0005625 -2015

BEFORE:     LAZARUS, J., RANSOM, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                          FILED JANUARY 17, 2017




*   Former Justice specially assigned to the Superior Court.
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         Jesus Sanchez -Echevarria appeals from the judgment of sentence'

entered in the Court of Common Pleas of Berks County following his open

guilty plea to charges of aggravated     assault2   and making terroristic   threats.3

Upon review, we affirm.

         On May 4, 2015, Sanchez -Echevarria entered a negotiated         guilty plea

to making terroristic threats.      He was sentenced to two years of probation.

While serving this sentence, the criminal charges in the instant matter for

aggravated assault and terroristic threats were filed. At his guilty plea

hearing on the new charges on July 14, 2016, Sanchez -Echevarria admitted

to     attacking   Alexandra    Nazario- Santiago   on   November    4,   2015,    by

repeatedly punching and kicking her and knocking her on the floor. He also

admitted that during the same incident he threatened to kill Nazario-

Santiago and screamed that he would "kill the kids."          N.T. Guilty Plea and

Sentencing Hearing, 7/14/16, at 5.

         The court accepted Sanchez -Echevarria's guilty plea, which constituted

a    violation of probation regarding his earlier sentence for making terroristic



' Sanchez- Echevarria was sentenced                     two separate trial
                                          in one proceeding at
court docket numbers and filed separate notices of appeal for each of the
docket numbers. Because Sanchez -Echevarria raises the same issue in both
appeals, we have consolidated them on appeal and we dispose of both cases
in this memorandum. See Pa.R.A.P. 513.

2    18 Pa.C.S. § 2702(a)(1).

3    18 Pa.C.S. § 2706(a)(1).



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threats.       The court sentenced          Sanchez -Echevarria to          3    to   6    years'

incarceration for aggravated assault and                 5   years' probation for making

terroristic threats.         As to the direct violation of his probationary sentence,

the court imposed        a   new sentence of   1   to 2 years' incarceration to be served

consecutively to the aggravated assault term of imprisonment.                         Sanchez -

Echevarria filed     a       timely post- sentence motion, which the court denied.
Thereafter, Sanchez -Echevarria filed          a    timely notice of appeal and court -
ordered concise statement of errors complained of on appeal pursuant to

Pa. R.A. P.   1925(b).

       On appeal,        Sanchez -Echevarria raises the following               issue for our

review:

       Whether the [s]entencing [c]ourt abused its discretion by
       sentencing Sanchez -Echevarria to an aggregate term of
       incarceration [of] 4 years to 8 years in a state correctional
       institution where the sentencing judge focused solely on the
       offense as it relates to the impact on the life of the victim and no
       the other general principles set forth in the sentencing code,
       specifically the lack of impact on the community and the
       rehabilitative needs of [Sanchez -Echevarria] or other mitigating
       facts set forth by [Sanchez -Echevarria] at the time of
       sentencing[,] thereby causing the sentence of incarceration to be
       excessive?
Brief of Appellant, at 6.

       Sanchez -Echevarria asserts that the sentence imposed by the trial

court was excessive and unreasonable and did not take into consideration

his rehabilitative needs.         This claim implicates the discretionary aspects of

Sanchez -Echevarria's           sentence,   and     is   not   appealable       as    of   right.



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Commonwealth v. Swope, 123 A.3d 333, 337                          (Pa. Super. 2015).       Rather,

before we can address such           a   discretionary challenge, an appellant must

comply with the following requirements:

       An    appellant challenging the discretionary aspects of his
       sentence must invoke this Court's jurisdiction by satisfying a
       four -part test: (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.
Id. (quoting Commonwealth                v.   Allen, 24 A.3d 1058, 1064                (Pa. Super.

2011)).

       Instantly, Sanchez -Echevarria filed              a   post- sentence motion raising his

sentencing claim, followed by        a   timely notice of appeal to this Court. He has

also included in his appellate brief            a       concise statement of reasons relied

upon for allowance of appeal with respect to the discretionary aspects of his

sentence pursuant to Rule 2119(f).                      We must now determine whether

Sanchez -Echevarria has raised            a   substantial question that the sentence

appealed from       is   not appropriate under the Sentencing Code. In order to do

so, an appellant must "advance a colorable argument that the sentencing

court's actions were inconsistent with              a    specific provision of the Sentencing

Code    or    violated      a   fundamental         norm      of the      sentencing     process."

Commonwealth v. Feucht, 955 A.2d 377, 383 -84                        (Pa. Super. 2008).

       In his Rule 2119(f) statement, Sanchez -Echevarria claims that his

sentence     is   manifestly excessive because it             is beyond   the recommendation

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of the Commonwealth and the supervising probation officer. Ordinarily, the

mere claim that            a   sentence is excessive when it      is   within the statutory limits

does not raise         a       substantial question. See Commonwealth v. Coss, 695

A.2d 831, 833 (Pa. Super. 1997)                   Here, however, Sanchez -Echevarria also

asserts that the sentencing court took into account only the impact of the

crime on the victim, thereby considering only one of the general factors set

forth   in 42 Pa.C.S. § 9721.               See 42 Pa.C.S.   §   9721(b) ( "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 ").        Thus, Sanchez -Echevarria alleges that the sentencing court

violated    a     fundamental norm of the sentencing process.                    Feucht, supra.
Accordingly, he has raised              a   substantial question, and we will address the

merits of his appeal.

        Sentencing is within the sound discretion of the trial court and will not

be disturbed absent a manifest abuse of discretion.                         Commonwealth v.
Walls, 926 A.2d 957, 961 (Pa. 2007).                    "[A]n abuse of discretion         is   more

than    a   mere error of judgment; thus,               a   sentencing court will not have

abused      its    discretion unless 'the record             discloses that the judgment

exercised was manifestly unreasonable, or the result of partiality, prejudice,

bias or ill- will. "       Id. (quoting Commonwealth             v.    Smith, 673 A.2d 893, 895
(Pa. 1996)).




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      Instantly, the sentence imposed was beyond the recommendation of

the Commonwealth but within the statutory limits for the crimes to which

Sanchez -Echevarria pled guilty.       Moreover, Sanchez -Echevarria's contention

that the court focused solely on the impact on the victim         is belied by   the

record.        At sentencing   in   this matter, the court noted that Sanchez -

Echevarria's probationary sentence for previously making terroristic threats

had not been effective in rehabilitating him.         Additionally, the altercation

with Nazario- Santiago took place in front of Sanchez -Echevarria's and her

children, and the court noted that "one sees that violence and thinks that's

the appropriate way to behave. So I have concerns about what his children

have witnessed." N.T. Guilty Plea and Sentencing Hearing, 7/14/16, at 11-

12.   Accordingly, the court took          a   reasoned approach and sentenced

Sanchez -Echevarria after taking into account multiple factors, including

Sanchez -Echevarria's rehabilitative needs and the protection of the public.

42 Pa.C.S.      §   9721(b).   Thus, we discern no abuse of discretion.     Walls,

supra.
      Judgment of sentence affirmed.

Judgment Entered.




J:seph    Seletyn,
          D.
Prothonotary


Date: 1/17/2017


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