J-S59025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
          v.                                   :
                                               :
                                               :
    MIGUEL ALEJANDRO BADELL                    :
                                               :
                 Appellant                     :   No. 3522 EDA 2016

               Appeal from the Judgment of Sentence October 6, 2016
                   In the Court of Common Pleas of Lehigh County
                Criminal Division at No(s): CP-39-CR-0003115-2015


BEFORE:        BENDER, P.J.E., OTT, J., and FITZGERALD, J.

MEMORANDUM BY OTT, J.:                                FILED OCTOBER 31, 2017

        Miguel Alejandro Badell appeals from the judgment of sentence imposed

October 6, 2016, in the Lehigh County Court of Common Pleas. The trial court

imposed a statutory maximum sentence of 10 to 20 years’ imprisonment, after

Badell entered a guilty plea to one count of aggravated assault, 1 graded as a

first-degree felony, for an attack on his former girlfriend. On appeal, Badell

challenges the discretionary aspect of his sentence. For the reasons below,

we affirm.

        The facts underlying Badell’s guilty plea were summarized by the trial

court as follows:


____________________________________________


   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S. § 2702(a)(1).
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             On June 5, 2015, Michelle Lee Brown appeared at the
       Pennsylvania State Police barracks in Fogelsville, Pennsylvania to
       report an ongoing situation of domestic abuse by her live-in
       paramour, [Badell]. Ms. Brown related several instances of abuse,
       including [Badell] threatening Ms. Brown with a knife; head-
       butting Ms. Brown (resulting in a cracked nose); threatening to
       “make her disappear;” choking the victim; and showing her a
       recently purchased gun and subsequently firing a round at Ms.
       Brown’s head. Ms. Brown also related that on another occasion
       when she refused to have sex with [Badell], he tied her up,
       brandished a gun, and assaulted and choked her.

Trial Court Opinion, 12/28/2016, at 3-4. Badell was subsequently arrested

and charged with aggravated assault (two counts), terroristic threats (four

counts), unlawful restraint, simple assault (seven counts), and recklessly

endangering another person (four counts).2

       On August 15, 2016, Badell entered an open guilty plea to one count of

aggravated assault.         The Commonwealth then withdrew the remaining

charges. On October 6, 2016, after considering a pre-sentence investigation

report, as well as testimony from both the victim, the victim’s daughter, and

Badell, the trial court imposed the statutory maximum sentence of 10 to 20

years’ imprisonment.3        Badell filed a timely motion for reconsideration of

sentence, asserting the sentence imposed was “manifestly harsh and

excessive,” given that it was the statutory maximum sentence permitted by
____________________________________________


2 See 18 Pa.C.S. §§ 2702(a)(1), 2706(a)(1), 2902(a)(1), 2701(a)(1) and
(a)(3), and 2705, respectively.

3 Badell’s aggravated assault conviction called for a standard range sentence
of 60 to 72 months’ imprisonment. See Presentence Investigation Report,
10/3/2016, at Guideline Sentence Form. Lehigh County Probation and Parole
recommended an aggravated range sentence of seven to 15 years’
imprisonment. See id. at 14.

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law, he accepted responsibility for his crimes and expressed remorse, he has

no family on the east coast, and the court punished him for his entire

relationship with the victim (including allegations raised for the first time at

the sentencing hearing), rather than for the one crime to which he pled guilty.

Petition for Reconsideration, 10/17/2016, at 1-2. The court denied the motion

the next day. This timely appeal followed.4

       On appeal, Badell raises four challenges to the discretionary aspects of

his sentence. When considering such claims, we must bear in mind:
       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.

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015)

(quotation omitted), appeal denied, 125 A.3d 1198 (Pa. 2015). Furthermore,

it is well-settled that:

       [a] challenge to the discretionary aspects of sentencing is not
       automatically reviewable as a matter of right. Prior to reaching
       the merits of a discretionary sentencing issue:

          We 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).
____________________________________________


4 On November 29, 2016, the trial court ordered Badell to file a concise
statement of errors complained of on appeal pursuant to Pa. R.A.P. 1925(b).
Badell complied with the court’s directive, and filed a concise statement on
December 20, 2016.

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Commonwealth v. Grays, 167 A.3d 793, 815–816 (Pa. Super. 2017) (some

citations omitted).

        In the present case, Badell complied with the procedural requirements

for this appeal by filing a timely post-sentence motion for modification of

sentence, and subsequent notice of appeal, and by including in his appellate

brief   a   statement     of   reasons    relied   upon   for   appeal   pursuant   to

Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987), and Pa.R.A.P.

2119(f). Therefore, before we may address the merits of each of his claims,

we must determine whether he has raised a substantial question justifying our

review.5

        In the first challenge, Badell contends the court imposed a sentence

above the aggravated range of the guidelines without providing adequate

reasons on the record. See Badell’s Brief at 8. He maintains the sentence

imposed was unreasonable, and the court improperly focused solely on his

“prior record and the victim impact statement.” Id. at 9. A claim that the

trial court imposed a sentence outside the guideline ranges, without providing

adequate reasons on the record for doing so, presents a substantial question

for our review. See Commonwealth v. Griffin, 804 A.2d 1, 7-8 (Pa. Super.

____________________________________________


5 A substantial question exists when an appellant sets forth “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
underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d
1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)
(citation omitted).

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2002), appeal denied, 868 A.2d 1198 (Pa. 2005), cert. denied, 545 U.S. 1148

(2005).

      Section 9781(c)(3) of the Sentencing Code requires an appellate court

to vacate a sentence imposed outside the guideline ranges if the sentence is

“unreasonable.”    42 Pa.C.S. § 9781(c)(3).    Although the statute does not

define “unreasonable,” Subsection (d) provides further guidance for the

reviewing court:

      (d) Review of record. -- In reviewing the record the appellate
      court shall have regard for:

      (1) The nature and circumstances of the offense and the history
      and characteristics of the defendant.

      (2) The opportunity of the sentencing court to observe the
      defendant, including any presentence investigation.

      (3) The findings upon which the sentence was based.

      (4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d)(1)-(4). Further, Section 9721 of the Sentencing Code

mandates that when determining the appropriate sentence, the trial court

“shall follow the general principle that the 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.”        42 Pa.C.S. §

9721(b).




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     In Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007), the

Pennsylvania Supreme Court considered what constitutes an “unreasonable”

sentence under the statute:

     Generally speaking, “unreasonable” commonly connotes a
     decision that is “irrational” or “not guided by sound judgment.”
     The Random House Dictionary of the English Language, 2084 (2nd
     ed.1987); see 1 Pa.C.S. § 1903 (words to be construed according
     to their common and approved usage).              While a general
     understanding of unreasonableness is helpful, in this context, it is
     apparent that the General Assembly has intended the concept of
     unreasonableness to be a fluid one, as exemplified by the four
     factors set forth in Section 9781(d) to be considered in making
     this determination. Indeed, based upon the very factors set out
     in Section 9781(d), it is clear that the General Assembly intended
     the concept of unreasonableness to be inherently a circumstance-
     dependent concept that is flexible in understanding and lacking
     precise definition. Cf. United States v. Crosby, 397 F.3d 103,
     115 (2nd Cir. 2005) (explaining concept or reasonableness in
     context of sentencing matters).

     Thus, given its nature, we decline to fashion any concrete rules as
     to the unreasonableness inquiry for a sentence that falls outside
     of applicable guidelines under Section 9781(c)(3). We are of the
     view, however, that the Legislature intended that considerations
     found in Section 9721 inform appellate review for
     unreasonableness. That is, while a sentence may be found to be
     unreasonable after review of Section 9781(d)’s four statutory
     factors, in addition a sentence may also be unreasonable if the
     appellate court finds that the sentence was imposed without
     express or implicit consideration by the sentencing court of the
     general standards applicable to sentencing found in Section 9721,
     i.e., the protection of the public; the gravity of the offense in
     relation to the impact on the victim and the community; and the
     rehabilitative needs of the defendant. 42 Pa.C.S. § 9721(b).
     Moreover, even though the unreasonableness inquiry lacks precise
     boundaries, we are confident that rejection of a sentencing court’s
     imposition of sentence on unreasonableness grounds would occur
     infrequently, whether the sentence is above or below the guideline
     ranges, especially when the unreasonableness inquiry is
     conducted using the proper standard of review.


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Id. at 963-964.

      Here, our review of the sentencing transcript reveals the trial court

considered the guideline ranges for Badell’s crime, but concluded the facts and

circumstances underlying his conviction called for a sentence above the

aggravated range of the guidelines. See N.T., 10/6/2016, at 5 (trial court

stating it reviewed the “presentence investigation report, which had attached

thereto sentencing guidelines”). After imposing the 10 to 20-year sentence,

the trial court explained:

            This sentence departs from the guidelines. It is in excess of
      the aggravated range. It is, in fact, the maximum possible penalty
      that I can impose in this matter. And I do so because you are a
      repeat violent domestic violence offender.

            You have violated previous court orders that have been
      intended to control your behavior. You have caused what may be
      irreparable harm to the victim and to her family.

            And this has been a course of conduct that has, in my mind,
      been intended to terrorize and to tear down another human being.

Id. at 66. In its opinion, the court further elaborated that the “guilty plea

narrative and the testimony taken at the sentencing hearing [demonstrated]

the victim was psychologically, physically, and sexually abused by [Badell]

during the course of their relationship.” Trial Court Opinion, 12/28/2016, at

6.   Indeed, Badell’s victim, Brown, delivered a powerful victim impact

statement that spanned 36 pages in the transcript, and detailed her four-year

relationship with Badell, during which time he repeatedly physically and

psychologically abused her. See N.T., 10/6/2016, at 7-43. Further, the trial

court emphasized that Badell had been convicted of domestic violence-related

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crimes on two prior occasions in California, and “served significant periods of

incarceration for those crimes.” Trial Court Opinion, 12/28/2016, at 7.

       We find the trial court’s comments both at the sentencing hearing and

in its opinion, demonstrate that the court considered the factors listed in

Sections 9721(b) and 9781(b) before imposing a sentence above the

aggravated range of the guidelines.            Indeed, the court’s focus on Badell’s

history of domestic abuse and his failure to conform his behavior after two

prior convictions, establishes its consideration of the protection of the public

and Badell’s rehabilitative needs. See 42 Pa.C.S. §§ 9721(b); 9781(d)(1).

Likewise, the court’s emphasis on the psychological and physical harm Badell

inflicted on the victim over a sustained period of time evidences its

consideration of the gravity of the offense as it relates to the impact on the

life of the victim.     See id.     Furthermore, we emphasize that prior to the

hearing, the trial court reviewed a presentence investigation report, which

Badell’s counsel believed was “done very fairly for Mr. Badell,” as well as “a

packet of letters” supporting Badell, and a “lengthy letter with some

attachments” that Badell submitted himself.             N.T., 10/6/2016, at 5, 57.

Moreover, Badell spoke at the sentencing hearing, and the court was able to

hear his apology to the victim and her family. See id. at 54-56. Accordingly,

Badell’s first sentencing claim warrants no relief.6

____________________________________________


6We note that Badell’s reliance on this Court’s decisions in Commonwealth
v. Walls, 846 A.2d 152 (Pa. Super. 2005), and Commonwealth v.



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       Second, Badell asserts the trial court failed to consider his individual

characteristics when imposing the statutory maximum sentence, particularly

his rehabilitative needs (including mental health and drug and alcohol

treatment), his acceptance of responsibility and his “sincere overtures of

remorse.”7 Id. at 12. “[A]n allegation that the sentencing court failed to

consider mitigating factors generally does not raise a substantial question for

our review.” Commonwealth v. Rhoades, 8 A.3d 912, 918-919 (Pa. Super.

2010), appeal denied, 25 A.3d 328 (Pa. 2011), cert. denied, 132 S.Ct. 1746

____________________________________________


Caraballo, 848 A.2d 1018 (Pa. Super. 2004), is misplaced. See Badell’s Brief
at 8-10. Although a panel of this Court initially vacated the sentences in both
cases based upon the trial court’s purported failure to impose individualized
sentences, the Pennsylvania Supreme Court reversed on appeal finding, in
Walls, supra, 926 A.2d 957, that the panel “usurped the sentencing court’s
discretion,” and remanding the appeal to this Court for “a re-examination of
the judgment of sentence in light of [its] decision[.]” Id. at 966, 968.
Similarly, the Supreme Court vacated the panel’s original decision in
Carabello, and remanded the matter “for further consideration” in light of its
decision in Walls. Commonwealth v. Caraballo, 933 A.2d 650 (Pa. 2007).
Upon remand, both the Walls and Carabello panels affirmed the judgment
of sentence of the trial court in unpublished memorandum decisions. See
Commonwealth v. Walls, 938 A.2d 1122 [747 MDA 2003] (Pa. Super.
2007); Commonwealth v. Carabello, 959 A.2d 458 [1053 WDA 2003] (Pa.
Super. 2008).

7 To the extent Badell argues the trial court erred in failing to order a mental
health and drug and alcohol evaluation as part of his pre-sentence
investigation, we find that this claim is waived because he did not challenge
the absence of these evaluations during the sentencing hearing, nor did he
include this argument in his post-sentence motion. See generally N.T.,
10/6/2016; Petition for Reconsideration, 10/17/2016.                 See also
Commonwealth v. Miklos, 159 A.3d 962, 970 (Pa. Super. 2017)
(discretionary sentencing issue not preserved during sentencing hearing or in
post-sentence motion is waived on appeal).



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(U.S. 2012). However, an “excessive sentence claim[ ] in conjunction with an

assertion that the court did not consider mitigating factors[,]” does present a

substantial question for our review. Commonwealth v. Gonzalez, 109 A.3d

711, 731 (Pa. Super. 2015), appeal denied, 125 A.3d 1198 (Pa. 2015),

quoting Commonwealth v. Dodge, 77 A.3d 1263, 1272 (Pa. Super. 2013)

(en banc), appeal denied, 91 A.3d 161 (Pa. 2014).

        Here, our review of the sentencing transcript reveals Badell presented

no evidence at his sentencing hearing that he suffered from mental health

issues or was addicted to drugs or alcohol.8 The self-diagnosis he presents in

his brief, as well as his emphasis on his prior drug arrests,9 does not change

the fact that Badell failed to argue these potential mitigating circumstances

before the trial court as excuses for his behavior. Indeed, Badell “insisted he

never had a problem with substance abuse” in his presentence investigation

interview, despite a history of drunk driving convictions and admitted social

drug use. Presentence Investigation Report, 10/3/2016, at 11. He further

denied mental health problems, explaining “it’s me. I was an asshole. I was




____________________________________________


8 We reject Badell’s contention that the trial court was required to parse
through the victim’s impact statement for potential evidence that might
mitigate his behavior. See Badell’s Brief at 11-12.

9   See Badell’s Brief at 11-12.




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aggressive. I was threatening.”10 Id. at 12. Moreover, although Badell did

admit his crime by entering a guilty plea, and apologized to the victim and her

daughters during the sentencing hearing, the sincerity of his acceptance of

responsibility and his remorse was for the trial court to assess.11 Accordingly,

____________________________________________


10We note Badell did admit to Lehigh County Probation and Parole that he had
been taking steroids for several weeks. See Presentence Investigation
Report, 10/3/2016, at 12.

11 Indeed, Badell’s version of the incident to which he pled guilty differed
greatly from the Commonwealth’s recitation of facts at the guilty plea hearing.
The Commonwealth described the encounter as follows. On a morning in April
of 2015, Badell came downstairs and told the victim “it was the day she was
doing to disappear.” N.T., 8/15/2016, at 24. He then attempted to lure her
into the garage, but she resisted by placing her arms in the doorway. See id.
Badell then told the victim “it was time to go to sleep” and proceeded to choke
her until she was unconscious. Id. at 24. When she awoke in the den, Badell
was “standing over her asking her where her God was because she was
praying as she was placed into unconsciousness by [him].” Id. He walked
her back to the garage where the trunk of the car was open, and told her
again she was going to disappear. See id. The victim, however, managed to
diffuse the situation.

      In the presentence investigation report, Badell described the incident as
follows:

       "This morning I grabbed her from behind. I said something
       aggressive into her ear. For about two seconds, she went limp on
       me, and I put her down. I honestly thought she was faking. She
       convulsed. That’s when I got scared.”         When she regained
       consciousness, [the victim] asked what happened. “I said, ‘I don't
       know. You were flopping like a fish.’ She shook two or three times.
       That’s when I realized she wasn’t faking. She got up. Her
       daughter came in with her boyfriend. I stayed away from the
       house….”

Presentence Investigation Report, 10/3/2016, at 4.




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we conclude Badell has failed to demonstrate the trial court neglected to

consider his individual characteristics in imposing a statutory maximum

sentence.

      In his two remaining discretionary sentencing issues, Badell argues: (1)

the trial court’s comments during the sentencing hearing evidenced its bias

against defendants accused of domestic violence, and pre-disposition for

sympathy for domestic abuse victims; and (2) the court double counted his

prior record when it cited his prior convictions as a factor for imposing a

statutory maximum sentence. See id. at 14, 16. We need not determine

whether these claims raise a substantial question because both are waived on

appeal.   Badell did not include either of these issues in his post-sentence

motion, nor did he raise the issues during his sentencing hearing. Accordingly,

no relief is warranted.     See generally N.T., 10/6/2016; Petition for

Reconsideration, 10/17/2016. See also Miklos, supra.

      Therefore, because we conclude Badell’s challenges to his sentence are

either meritless or waived, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2017

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