J-A33043-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

ANGELO POZZA

                            Appellant                   No. 1974 EDA 2014


            Appeal from the Judgment of Sentence of June 6, 2014
               In the Court of Common Pleas of Wayne County
              Criminal Division at No.: CP-64-CR-0000108-2013


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

MEMORANDUM BY WECHT, J.:                           FILED DECEMBER 31, 2014

       Angelo Pozza appeals from the judgment of sentence entered June 6,

2014, following entry of a guilty plea.         Specifically, he challenges the

discretionary aspects of his sentence. We affirm.

       The trial court set forth the history of this case as follows:

       On August 12, 2013, [Pozza] was charged with fifty (50) counts
       relating to corrupt organizations, criminal conspiracy, criminal
       use of a communication facility, delivery of a        controlled
       substance, possession with intent to deliver a controlled
       substance, and possession of cocaine. The charges stemmed
       from the 33rd Statewide Investigating Grand Jury Presentment
       regarding the trafficking of narcotics.

       On March 6, 2014, [Pozza] entered into a plea agreement with
       the Attorney General’s Office. In exchange for [Pozza’s] full
       cooperation with the Attorney General’s investigation, [Pozza]
       entered a plea of guilty to one (1) count of corrupt organizations
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*
       Retired Senior Judge assigned to the Superior Court.
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      (count 2 of the information), one (1) count of criminal conspiracy
      to deliver a controlled substance (in excess of fifty (50) grams of
      cocaine) (count 3 of the information), one (1) count of delivery
      of a controlled substance (count 7 of the information), and one
      (1) count [of] criminal use of a communication facility (count 30
      of the information). On June 6, 2014, [Pozza] was sentenced to
      incarceration in a State Correctional Institute: as to count 2—
      corrupt organizations, for not less than nine (9) months nor
      more than sixty (60) months; as to count 3—criminal conspiracy
      to deliver a controlled substance—cocaine, for not less than
      twenty-two (22) months nor more than sixty (60) months,
      consecutive to count 2; and as to count 7—delivery of a
      controlled substance, for not less than twenty-two (22) months
      nor more than sixty (60) months, concurrent to count 3.1
      [Pozza’s] aggregate sentence of incarceration was not less than
      thirty-one (31) months nor more than one-hundred twenty (120)
      months. [Pozza] was eligible for participation in the Recidivism
      Risk Reduction Incentive (RRRI).        [Pozza’s] RRRI minimum
      sentence is twenty-three and one-fourth (23 ¼) months.
         1
            As to count 30—criminal use of a communication
         facility, [Pozza] was not sentenced to incarceration.
         [Pozza] was sentenced to pay a fine of ten-thousand
         dollars ($10,000.00).

Trial Court Opinion (“T.C.O.”), 8/11/2014, at 1-2. Pozza filed a motion for

reconsideration of sentence on June 16, 2014, which the trial court denied

on June 19, 2014.     Pozza timely appealed on July 3, 2014.      On July 29,

2014, pursuant to the trial court’s order, Pozza filed a concise statement of

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

11, 2014, the trial court entered its opinion pursuant to Pa.R.A.P. 1925(a).

      Pozza raises one question for our review:      “Whether the trial court

abused its discretion in sentencing [Pozza] to 31 to 120 months[’]

incarceration in state prison (minimum reduced by RRRI to 23 ¼ months)?”

Pozza’s Brief at 4.


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       Pozza argues that the sentence of thirty-one to one hundred twenty

months’ incarceration was an abuse of discretion by the trial court.1 Id. at

11.   He asserts that the trial court failed to “give proper weight to [his]

chronic and severe health issues, full cooperation with the prosecution, clear

remorse and his positive impact/effect on the community.”            Id.    We

disagree.

       Preliminarily, we note that Pozza must meet two requirements before

we will hear his challenge to the discretionary aspects of his sentence on the

merits:

       First, the appellant must set forth in his brief a concise
       statement of the reasons relied upon for allowance of appeal
       with respect to the discretionary aspects of his sentence.
       Pa.R.A.P. 2119(f).    Second, he must show that there is a
       substantial question that the sentence imposed is not
       appropriate under the Sentencing Code.           42 Pa.C.S.A.
       § 9781(b). The determination of whether a particular issue
       raises a substantial question is to be evaluated on a case-by-
       case basis. In order to establish a substantial question, the
____________________________________________


1
      We note that Pozza entered into an open plea agreement, and
therefore has not waived his right to challenge the discretionary aspects of
his sentence. See Plea Agreement, 3/6/2014, at 1-2.

       Upon entry of a guilty plea, a defendant generally waives all
       defects and defenses except those concerning the validity of the
       plea, the jurisdiction of the trial court, and the legality of the
       sentence imposed. However, when the plea agreement is open,
       containing no bargain for a specific or stated term of sentence,
       the defendant will not be precluded from appealing the
       discretionary aspects of his sentence.

Commonwealth v. Boyd, 835 A.2d 812, 816 (Pa. Super. 2003) (citation
omitted).



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      appellant must show actions by the sentencing court inconsistent
      with the Sentencing Code or contrary to the fundamental norms
      underlying the sentencing process.

Commonwealth v. Bishop, 831 A.2d 656, 660 (Pa. Super. 2003) (case

citations omitted).

      First, Pozza’s brief sets forth a concise statement of the reasons for his

appeal in compliance with Pa.R.A.P. 2119(f). Pozza’s Brief, at 5-7. Second,

he argues that his sentence is “clearly contrary to the fundamental norms of

the sentencing process” because the court’s “failure to address and properly

weight [sic] the other facts and circumstances on the record violates the

sentencing norms that require a court to consider and address all facts and

circumstances in determining an appropriate sentence.” Id. at 6.

      There is ample precedent to support a determination that Pozza’s

claim that the trial court did not properly weigh the facts of his case fails to

raise a substantial question that his sentence is not appropriate under the

Sentencing Code.      See Commonwealth v. Griffin, 65 A.3d 932, 936-37

(Pa. Super. 2013) (citing cases).

      Even if we were to determine that Pozza’s claim did raise a substantial

question, we find no merit to the underlying allegation. The trial court had

the benefit of a pre-sentence investigation report (“PSI”), and sentenced

Pozza to a standard-range sentence.         See Order, 3/6/2014; Notes of

Testimony (“N.T.”) Sentencing, 6/2/2014, at 8, 11-12.

      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

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         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. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006). In

reviewing a sentence on appeal, the appellate court shall vacate the

sentence and remand the case to the sentencing court with instructions if it

finds:

         (1) the sentencing court purported to sentence within the
         sentencing guidelines but applied the guidelines erroneously;

         (2) the sentencing court sentenced within the sentencing
         guidelines but the case involves circumstances where the
         application of the guidelines would be clearly unreasonable; or

         (3) the sentencing court sentenced outside the sentencing
         guidelines and the sentence is unreasonable.

         In all other cases[,] the appellate court shall affirm the sentence
         imposed by the sentencing court.

42 Pa.C.S.A. § 9781; see also Commonwealth v. Lewis, 45 A.3d 405,

411 (Pa. Super. 2012).

         “When imposing a sentence, a court is required to consider the
         particular circumstances of the offense and the character of the
         defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.
         Super. 2002). “In particular, the court should refer to the
         defendant’s     prior  criminal   record,   his    age,   personal
         characteristics and his potential for rehabilitation.” Id. Where
         the sentencing court had the benefit of a presentence
         investigation report (“PSI”), we can assume the sentencing court
         “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). See also Commonwealth v. Tirado,
         870 A.2d 362, 368 (Pa. Super. 2005) (stating if sentencing court


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      has benefit of PSI, law expects court was aware of relevant
      information regarding defendant’s character and weighed those
      considerations along with any mitigating factors).     Further,
      where a sentence is within the standard range of the guidelines,
      Pennsylvania law views the sentence as appropriate under the
      Sentencing Code. See Commonwealth v. Cruz-Centeno, 668
      A.2d 536 (1995) (stating combination of PSI and standard range
      sentence, absent more, cannot be considered excessive or
      unreasonable).

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (some

formatting).

      Here, the trial court stated at sentencing:

      Mr. Pozza[,] I read every page of your pre-sentence report,
      there are ten narrative pages, the computation of the sentencing
      guidelines, the recommendation to this court. There were a host
      of letters to me, there was a presentation of the facts from the
      grand jury. There was the sentencing memorandum from your
      counsel, and sentencing memorandum for the Commonwealth, I
      read everything, and quite frankly spent considerable time going
      over these matters time and time again.

N.T. at 8. The trial court described Pozza’s background and impact in the

community, and noted his cooperation with the prosecution, before stating

that it would follow the standard-range sentence recommended by the

Commonwealth. Id. at 9-12.

      Accordingly, the court did not err in imposing a sentence of thirty-one

to one-hundred twenty months with an RRRI-minimum sentence of twenty-

three and one quarter months. See Commonwealth v. Smith, 673 A. 2d

893, 895 (Pa. 1996) (holding that imposition of a sentence is vested in the

discretion of the sentencing court and will not be disturbed unless there is a

clear abuse of discretion). Based upon our review of the record, Pozza has

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failed to establish that the trial 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. Shugars, 895 A.2d at 1275.

Thus, we decline to disturb Pozza’s judgment of sentence based on his

allegation of error.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/31/2014




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