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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                     v.                    :
                                           :
NOEL BAUTISTA,                             :         No. 2964 EDA 2015
                                           :
                          Appellant        :


            Appeal from the Judgment of Sentence, August 18, 2015,
                 in the Court of Common Pleas of Lehigh County
               Criminal Division at Nos. CP-39-CR-0000116-2015,
                            CP-39-CR-0000129-2015


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED MAY 24, 2016

         Noel Bautista appeals from the August 18, 2015 judgment of sentence

in the Court of Common Pleas of Lehigh County following his convictions of

two counts of robbery and one count of possession of a small amount of

marijuana.1 We affirm.

         During the guilty plea proceedings, appellant admitted to the following

facts:

              Case 129 occurred first in time.          That was
              December 28, 2014.          Allentown police were
              responding to a report of an armed robbery that had
              occurred in the area of 1205 Lehigh Parkway South.

              The victim stated that he had responded to a Craig’s
              List ad that was using a given telephone number and
              through several text messages to the phone number

1
    18 Pa.C.S.A. § 3701(a)(1)(ii) and 35 P.S. § 780-113(a)(31), respectively.
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           the victim had agreed to meet with a female party in
           the area of 1205 South Parkway.

           When the victim arrived in the area he was not met
           by a female but was, in fact, met by [appellant] who
           asked if he was there to meet Kayla.

           The victim was advised to go to the rear of
           1205 Lehigh Parkway South where he was met by
           another Hispanic male.     They both pulled out
           handguns, pointed them at the victim and demanded
           his money.

           They took his cell phone and cash which was
           approximately $200.

           ....

           Case 116 occurred next on January 3rd of 2015.

           At around 3:30 a.m. Allentown police were
           summoned to the Wawa on Lehigh Street for a
           report of an armed robbery.

           The victim states that he had responded to a Back
           Page ad advertising an escort, that he was directed
           to the Roadway Inn in Allentown.          He was
           communicating via a telephone number.

           And when he arrived he was approached by
           [appellant] who got into his car and made him drive
           to Wawa and withdraw money from the ATM.

           He then -- he got $150 . . . .

Notes of testimony, 7/8/15 at 5-7.2

     The sentencing court provided the following procedural history:


2
  The Commonwealth read the above facts into the record during the guilty
plea proceedings. After the facts had been read into the record, the
sentencing court asked appellant if that was “what [he] did.” Appellant
answered in the affirmative. (Id. at 6-7.)


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                    On July 8, 2015, [appellant] came before this
            Court to enter a plea of guilty to Robbery in Case
            No. 116/2015 and Case No. 129/2015. On the same
            date, [appellant] entered a guilty plea to Possession
            of a Small Amount of Marijuana in Case
            No. 591/2015. The terms of the plea agreement
            included the Commonwealth agreeing not to pursue
            the other counts of the information and to run all
            cases concurrently. In all other respects, the plea
            was open. Then, on August 18, 2015, this Court
            sentenced [appellant] to a term of imprisonment of
            not less [than] ten (10) years nor more than
            twenty (20) years on both the aforementioned
            Robbery charges.      This Court imposed a fine of
            $500.00 on the charge of Possession of a Small
            Amount of Marijuana. In compliance with the plea
            agreement, the sentences were ordered to run
            concurrently to each other. On August 28, 2015,
            [appellant] filed Post Sentence Motions pursuant to
            [Pa.R.Crim.P. 720.] Subsequently, on September 1,
            2015, this Court denied [appellant’s] requested
            relief.   [This] appeal followed on September 29,
            2015.

                  On September 30, 2015, this Court instructed
            [appellant] to file of record and serve upon this
            Court a concise statement of errors complained of on
            appeal no later than October 21, 2015, in accordance
            with [Pa.R.A.P. 1925(b). Appellant] timely complied
            with said Order.

Trial court opinion, 10/26/15 at 1-2 (citations omitted). The trial court filed

an opinion pursuant to Pa.R.A.P. 1925(a), in which it incorporated its opinion

of September 1, 2015, which accompanied the trial court’s order denying

appellant’s post sentence motions.

      Appellant raises the following issue on appeal:

            Whether the Lower Court abused its discretion in
            imposing a manifestly excessive and unreasonable
            sentence which is at the statutory maximum limit


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            and imposed when the Court failed to consider any
            significant mitigating factors, failed to apply and
            review all the necessary factors as set forth in
            42 Pa.C.S.A. § 9721(b) and 42 Pa.C.S.A. § 9781(c)
            and (d) or otherwise failed to set forth appropriate
            reasons for its deviation from the standard
            sentencing ranges?

Appellant’s brief at 7.

            [T]he proper standard of review when considering
            whether      to    affirm    the    sentencing   court’s
            determination is an abuse of discretion. . . . [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. In more expansive terms, our Court
            recently offered: An abuse of discretion may not be
            found merely because an appellate court might have
            reached a different conclusion, but requires a result
            of   manifest      unreasonableness,      or   partiality,
            prejudice, bias, or ill-will, or such lack of support so
            as to be clearly erroneous.

            The rationale behind such broad discretion and the
            concomitantly deferential standard of appellate
            review is that the sentencing court is in the best
            position to determine the proper penalty for a
            particular offense based upon an evaluation of the
            individual circumstances before it.

Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)

(citation omitted).

            Challenges to the discretionary aspects of sentencing
            do not entitle an appellant to review as of right.
            Commonwealth v. Sierra, [752 A.2d 910, 912
            (Pa.Super. 2000)].       An appellant challenging the
            discretionary aspects of his sentence must invoke
            this Court’s jurisdiction by satisfying a four-part test:



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                 [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).

Moury, 992 A.2d at 170 (citation omitted).

     Here, we begin our analysis by determining whether appellant has

complied with the procedural requirements of challenging his sentence.

First, appellant timely filed his notice of appeal pursuant to Pa.R.A.P. 902

and 903.   Second, he properly preserved the issue in a motion to modify

sentence which was filed on August 28, 2015. The sentencing court denied

appellant’s motion on September 1, 2015.

     Third, appellant included a Rule 2119(f) statement in his brief, in

which he avers that the sentence he received for first-degree robbery was

“significantly more than the aggravated range of the Sentencing Guidelines.”

(See appellant’s brief at 11.)   Specifically, appellant alleges that he was

sentenced to the statutory maximum, and that the sentencing court failed to

adequately support its deviation from the sentencing guidelines.   (Id. see

also 42 Pa.C.S.A. § 9781(c)(3).) The sentencing court’s statutory maximum

sentence of 10-20 years’ imprisonment is in excess of the guidelines, which


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call for an aggravated range of 114 months’ imprisonment.             (Appellant’s

brief at 14; Commonwealth’s brief at 10.) Finally, in light of appellant’s Rule

2119(f) statement, we find that appellant has advanced a substantial

question.   See 42 Pa.C.S.A. § 9781(c)(3).      Accordingly, we shall review

appellant’s claim on its merits.

            “In every case where the court imposes a sentence
            outside the sentencing guidelines . . . the court shall
            provide a contemporaneous written statement of the
            reason or reasons for the deviation from the
            guidelines. Failure to comply shall be grounds for
            vacating the sentence and resentencing the
            defendant.” Commonwealth v. Rodda, 723 A.2d
            212, 215 (Pa.Super. 1999); 42 Pa.C.S. § 9721(b).

Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa.Super. 2015).

      When sentencing appellant, the sentencing court made the following

notation for the record:

            This sentence is a maximum sentence as a result of
            the following factors:

            [Appellant’s] criminal conduct amounted to an actual
            kidnapping.

            There are multiple robberies.

            [Appellant] expresses no remorse and admits to
            continuing his gang affiliation.[3]

            [Appellant] is a danger to the community.

3
  The sentencing court noted for the record that the pre-sentence report
indicated that, “[appellant] adamantly admitted his affiliation and
involvement with the Bloods Gang. He talked about how he got [initiated
into the gang]. When asked if he ever plans on giving up the gang life-style,
[appellant] replied, ‘I don’t know, but I do what I want.’” (Notes of
testimony, 8/18/15 at 4.)


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Notes of testimony, 8/18/15 at 7.

      The court acknowledged receiving the pre-sentence report in this case

and indicated that it reviewed the report and its attachments. (Id. at 2.)

The sentencing court sentenced appellant to the statutory maximum only

after it reviewed the presentence report, considered counsel’s argument,

and permitted appellant to address the court.      We find the above factors

listed by the sentencing court to be sufficient justification for the sentencing

court to deviate from the sentencing guidelines in this case.      Accordingly,

the sentencing court did not abuse its discretion when it sentenced appellant

to the statutory maximum.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/24/2016




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