J-S32043-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                        v.

SALVADOR LEMUS LOPEZ

                             Appellant                 No. 2771 EDA 2016


              Appeal from the Judgment of Sentence July 28, 2016
       in the Court of Common Pleas of Chester County Criminal Division
                       at No(s): CP-15-CR-0002047-2014

BEFORE: GANTMAN, P.J., STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                   FILED SEPTEMBER 12, 2017

        Appellant, Salvador Lemus Lopez, appeals from the judgment of

sentence entered in the Chester County Court of Common Pleas after he

pleaded guilty to possession with intent to deliver cocaine, 1 criminal

conspiracy,2 and corrupt organizations.3      He challenges the discretionary

aspects of his sentence. We affirm.

        The facts are unnecessary for our disposition.         We adopt the

procedural history set forth by the trial court’s decision:

              On July 8, 2014, the Commonwealth charged Appellant
           with 2,376 violations of the Controlled Substance, Drug,
           Device and Cosmetic Act and related crimes. On March 7,

*
    Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
2
    18 Pa.C.S. § 903.
3
    18 Pa.C.S. § 911(b).
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         2016, Appellant entered open guilty pleas to twenty-five
         counts of delivery, or possession with intent to deliver
         cocaine, and one count each of criminal conspiracy and
         corrupt organizations. On June 16, 2016, we sentenced
         Appellant to a [sic] serve a total term of incarceration of
         27 years, 8 months, to 55 years, 4 months.              We
         determined that Appellant was an “eligible offender” under
         the Recidivism Risk Relation Incentive (RRRI), 61 Pa.C.S. §
         4505(a), and imposed a RRRI minimum sentence of
         slightly more than 23 years. Appellant filed a timely
         motion for modification of this sentence, which the Court
         granted at a hearing held on July 28, 2016. At that time
         we resentenced Appellant to serve a total term of
         incarceration of 19 to 38 years.       The RRRI minimum
         sentence imposed that day was 15.83 years.

                                 *    *    *

         Appellant was also given credit for time served of
         approximately 27 months.

Trial Ct. Op., 12/22/16, at 1-3 (some citations omitted).         This appeal

followed.   Appellant filed a court ordered Pa.R.A.P. 1925(b) statement of

errors complained of on appeal, and the trial court filed a responsive opinion.

      Appellant raises the following issues for our review:

         I. Did the trial court abuse its discretion imposing an
         aggregate sentence of nineteen (19) years to thirty-eight
         (38) years’ state incarceration?

                                 *    *    *

         II. Did the trial court err in imposing fines totaling
         $225,000? Was there evidence of record that Appellant
         would be able to pay the fines pursuant to 42 Pa.C.S. §
         9726(c)?

Appellant’s Brief at 4.

      In the case sub judice,



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           [i]nitially, we must determine whether [Appellant] has the
           right to seek permission to appeal the sentencing court’s
           exercise of its discretion. Where a defendant pleads guilty
           without any agreement as to sentence, the defendant
           retains the right to petition this Court for allowance of
           appeal with respect to the discretionary aspects of
           sentencing.

Commonwealth v. Brown, 982 A.2d 1017, 1018-19 (Pa. Super. 2009)

(citation omitted). Instantly, there was no agreement as to sentencing, thus

Appellant has the right to seek permission to appeal. See id. at 1019.

        This Court has stated, “[T]here is no absolute right to appeal when

challenging the discretionary aspect of a sentence.” Commonwealth v.

Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citations and quotation

marks omitted).

           [A]n appellant challenging the sentencing court’s discretion
           must invoke this Court’s jurisdiction by satisfying a four-
           part test.

              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);[4] and (4) whether there is a

4
    Rule 2119(f) provides as follows:

           An appellant who challenges the discretionary aspects of a
           sentence in a criminal matter shall set forth in a separate
           section of the brief a concise statement of the reasons
           relied upon for allowance of appeal with respect to the
           discretionary aspects of a sentence. The statement shall
           immediately precede the argument on the merits with
           respect to the discretionary aspects of the sentence.



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             substantial question that the sentence appealed from
             is not appropriate under the Sentencing Code, 42
             Pa.C.S.A. § 9781(b).

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

citations omitted).

            The determination of what constitutes a substantial
         question must be evaluated on a case-by-case basis. A
         substantial question exists only when the appellant
         advances a colorable argument that the sentencing judge’s
         actions were either: (1) inconsistent with a specific
         provision of the Sentencing Code; or (2) contrary to the
         fundamental norms which underlie the sentencing process.

                                 *    *    *

            Although     Pennsylvania’s    system    stands     for
         individualized sentencing, the court is not required to
         impose the “minimum possible” confinement. Under 42
         Pa.C.S.A. § 9721, the court has discretion to impose
         sentences consecutively or concurrently and, ordinarily, a
         challenge to this exercise of discretion does not raise a
         substantial question.

Commonwealth v. Moury, 992 A.2d 162, 170–71 (Pa. Super. 2010)

(citations omitted); see also Dodge, 77 A.3d at 1270 (citing Moury with

approval).

      In the instant case, Appellant filed a timely notice of appeal and

preserved the issue in a motion for reconsideration of sentence. Appellant

included a concise statement of reasons relied upon for allowance of appeal

in which he “asserts that a substantial question exists in that he was




Pa.R.A.P. 2119(f).



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sentenced    within   the   sentencing   guidelines   but    the   case   involves

circumstances where the application of the guidelines would be clearly

unreasonable as applied.”     Appellant’s Brief at 14.5     Appellant argues the

court “failed to give appropriate weight to Appellant’s age and lack of a prior

record in fashioning its sentence.” Id. at 15. He contends that



5
    We acknowledge

          that this Court is not persuaded by bald assertions or the
          invocation of special words in a concise statement of
          reasons; [t]o the contrary, a concise statement must
          articulate the way in which the court’s conduct violated the
          sentencing code or process.

Commonwealth v. Cannon, 954 A.2d 1222, 1229 (Pa. Super. 2008)
(citations and quotation marks omitted). However, in Commonwealth v.
Shugars, 895 A.2d 1270 (Pa. Super. 2006), the appellant “failed to provide
a Rule 2119(f) statement in his brief.” Id. at 1274. This Court opined:
“[I]n the absence of any objection from the Commonwealth, we are
empowered to review claims that otherwise fail to comply with Rule
2119(f).” Id. (citation omitted). Instantly, the Commonwealth did not
object to the Rule 2119(f) statement.      The Commonwealth contends
Appellant

          has failed to set forth sufficient reasons for this Court to
          grant the allowance of appeal with respect to the
          discretionary aspects of the sentence.           Specifically
          [Appellant] has failed to demonstrate that there is a
          substantial question that the sentence imposed is not
          appropriate under the Sentencing Code. [Appellant’s] only
          attempt at raising a substantial question is his claim that
          the application of the guidelines are clearly unreasonable
          as applied. (Appellant Brief at 14).

Commonwealth’s Brief at 10. Thus, we will review the claim. See Shugars,
895 A.2d at 1274.




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        [t]he imposed sentences were within the sentencing
        guideline. As applied consecutively, however, considering
        Appellant’s age, it created a de facto life sentence which is
        disproportionate with the gravity of the offenses,
        protection    of   the    community,      and    [A]ppellant’s
        rehabilitative needs. In that regard the sentences were
        unreasonable . . . .

Id. at 19-20.   We find Appellant has raised a substantial question.     See

Moury, 992 Ad.2d at 170.

        Our standard of review is as follows:

           [s]entencing 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. An abuse of discretion is more
           than just an error in judgment and, on appeal, the
           trial court will not be found to 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.

        More specifically, 42 Pa.C.S.A. § 9721(b) offers the
        following guidance to the trial court’s sentencing
        determination:

           [T]he 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.A. § 9721(b).

        Furthermore,

           section 9781(c) specifically defines three instances in
           which the appellate courts should vacate a sentence
           and remand: (1) the sentencing court applied the
           guidelines erroneously; (2) the sentence falls within
           the guidelines, but is “clearly unreasonable” based
           on the circumstances of the case; and (3) the


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             sentence falls outside of the guidelines and is
             “unreasonable.” 42 Pa.C.S. § 9781(c). Under 42
             Pa.C.S. § 9781(d), the appellate courts must review
             the    record   and    consider    the  nature    and
             circumstances of the offense, the sentencing court’s
             observations of the defendant, the findings that
             formed the basis of the sentence, and the sentencing
             guidelines. The weighing of factors under 42 Pa.C.S.
             § 9721(b) is exclusively for the sentencing court,
             and an appellate court could not substitute its own
             weighing    of   those    factors.     The    primary
             consideration, therefore, is whether the court
             imposed an individualized sentence, and whether the
             sentence     was   nonetheless     unreasonable    for
             sentences falling outside the guidelines, or clearly
             unreasonable for sentences falling within the
             guidelines, pursuant to 42 Pa.C.S. § 9781(c).

Commonwealth v. Bricker, 41 A.3d 872, 875-76 (Pa. Super. 2012)

(alterations and some internal citations omitted).     Our Supreme Court has

stated:

          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. A pre-sentence report constitutes the
          record and speaks for itself.      In order to dispel any
          lingering doubt as to our intention of engaging in an effort
          of legal purification, we state clearly that sentencers are
          under no compulsion to employ checklists or any extended
          or systematic definitions of their punishment procedure.
          Having been fully informed by the pre-sentence
          report, the sentencing court’s discretion should not
          be disturbed.[6] This is particularly true, we repeat, in
          those circumstances where it can be demonstrated that
          the judge had any degree of awareness of the sentencing


6
 The trial court ordered and received a presentence report. See Docket at
420.



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         considerations, and there we will presume also that the
         weighing process took place in a meaningful fashion.

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (emphasis added);

see also Commonwealth v. Diaz, 867 A.2d 1285, 1286, 1288 (Pa. Super.

2005) (rejecting the seventy-four year old defendant’s claim that his

sentence of twelve to twenty-four years’ imprisonment was a virtual life

sentence and, therefore, manifestly excessive where the trial court reviewed

all evidence before it, including a pre-sentence report).

      This Court has held that

         42 Pa.C.S.A. section 9721 affords the sentencing court
         discretion to impose its sentence concurrently or
         consecutively to other sentences being imposed at the
         same time or to sentences already imposed.               Any
         challenge to the exercise of this discretion ordinarily does
         not raise a substantial question.      Commonwealth v.
         Johnson, 873 A.2d 704, 709 n.2 (Pa. Super. 2005); see
         also Commonwealth v. Hoag, [ ] 665 A.2d 1212, 1214
         ([Pa. Super.] 1995) (explaining that a defendant is not
         entitled to a “volume discount” for his or her
         crimes).

Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (some

citations omitted and emphasis added).     In the case sub judice, the trial

court opined:

             We granted reconsideration of Appellant’s original
         sentence because we were uncomfortable with its length,
         given Appellant’s age (67) and life expectancy
         (approximately 85 years). We then imposed a 19 to 38
         year sentence, with a minimum RRRI sentence of 15.83
         years. Appellant was also given credit for time served of
         approximately 27 months. We specifically noted that the
         minimum sentence imposed was less than his projected
         life expectancy. Thus, the challenged sentence makes


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           Appellant eligible for parole at the age of 81, allowing him
           to see “the light at the end of the tunnel.”

               In addition, prior to imposing Appellant’s sentence, the
           [c]ourt considered the factors set forth in 42 Pa.C.S.A. §
           9721(b)[7], specifically “the protection of the public, the
           gravity of the offense as it relates to the impact on the
           victim and the community, the defendant’s rehabilitative
           needs, and the sentencing guidelines. We noted during his
           first hearing that while Appellant was not a drug “kingpin,”
           he was in fact the leader of his own drug enterprise.

Trial Ct. Op. at 3 (some citations omitted).8 We agree no relief is due.

        In the case sub judice, the trial court had the benefit of a presentence

report. See Devers, 546 A.2d at 18. The trial court considered the factors

set forth in Section 9721.     See Bricker, 41 A.3d at 875-76; Marts, 889

A.2d at 612. We discern no abuse of discretion. See Bricker, 41 A.3d at

875-76.

7
    Section 9721 provides in pertinent part as follows:

           [T]he 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).
8
  We note that in Dodge, this court affirmed the judgment of sentence of
forty years, seven months’ to eighty-one years and two months’
incarceration for “forty counts of receiving stolen property, two counts of
burglary, two counts of criminal trespass, and one count each of possession
of a small amount of marijuana, possession of drug paraphernalia, and
unauthorized use of a motor vehicle.” Dodge, 77 A.3d at 1267 (footnote
omitted).




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      Lastly, Appellant contends the trial court erred in imposing fines

totaling $225,000. Appellant avers that

         [t]he Sentencing Code provides that the [c]ourt not
         sentence a defendant to pay a fine unless it appears of
         record that the defendant will be able to pay the fine. 42
         Pa.C.S.A. § 9726(c).        Further, the Sentencing Code
         provides that the [c]ourt take into account the defendant’s
         financial resources and the nature of the burden the
         payment will impose. 42 Pa.C.S.A. § 9726(d). The [c]ourt
         did not make a determination regarding Appellant’s
         financial resources or the burden the fines would impose.

                                 *     *      *

            The court found that the money subject to forfeiture
         which included $40,000 seized from Appellant’s home and
         $88,000 seized from bank accounts, should be applied to
         Appellant’s fines and costs. Other than this determination,
         the court did not take into account Appellant’s financial
         resources and did not consider the burden imposed. It
         does not appear of record how Appellant would be able to
         pay the fines imposed.

Appellant’s Brief at 29-30.

      In Commonwealth v. Boyd, 73 A.3d 1269 (Pa. Super. 2013) (en

banc), this Court held that

         a claim that the trial court failed to consider the
         defendant’s ability to pay a fine can fall into several
         distinct categories. First, a defendant may claim that
         there was no record of the defendant’s ability to pay
         before the sentencing court.      In the alternative, a
         defendant may claim that the sentencing court did not
         consider evidence of record. Finally, a defendant may
         claim that the sentencing court failed to permit the
         defendant to supplement the record.

         After reviewing these categories, we conclude that only the
         first type of claim qualifies as non-waivable . . . . Section
         9726(c) requires that it be “of record” that the defendant


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        can pay the fine. Therefore, an argument that there was
        no evidence of the defendant’s ability to pay constitutes a
        claim that the fine was imposed in direct contravention of
        a statute. Furthermore, a complete lack of evidence in the
        record would be apparent from the face of the record and
        would not require the application of reasoning or discretion
        on the part of the appellate court.        Accordingly, we
        conclude [ ] that a claim raising the complete absence of
        evidence of the defendant’s ability to pay is not subject to
        waiver for a failure to preserve the issue in the first
        instance.

        In contrast, the other categories of claims concerning the
        sentencing court’s consideration of the defendant’s ability
        to pay are subject to waiver . . . . These claims would
        require the application of discretionary reasoning to the
        record before the sentencing court. Section 9726(c) does
        not require the sentencing court to credit any specific
        testimony. Nor does it require that the sentencing court
        hold a hearing on the issue. So long as there is some
        evidence of record regarding the defendant’s ability
        to pay, arguments over the scope and weighting of
        such evidence implicate the discretionary aspects of
        the sentence imposed. Therefore, these categories of
        claims are subject to waiver for failure to preserve the
        claim in the first instance.

Id. at 1273-74 (some citations omitted and emphasis added).

     In the case sub judice, Appellant’s claim raises a challenge to the

discretionary aspect of his sentence. See id. Appellant’s statement of the

reasons to allow the appeal from the discretionary aspects of his sentence

does not raise the issue of the amount of the fine.    See Leatherby, 116

A.3d at 83. However, the Commonwealth has not raised an objection to the

failure to raise the issue in the statement of reasons to allow the appeal.

Moreover, Appellant contends a specific provision of the Sentencing Code

was violated, which raises a substantial question. See Commonwealth v.


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Fusco, 594 A.2d 373, 374 (Pa. Super. 1991)            Therefore, we will address

Appellant’s claim. See id.; Shugars, 895 A.2d at 1274.

       A court may impose a fine where:

          (b) Fine as additional sentence.─The court may
          sentence the defendant to pay a fine in addition to another
          sentence, either involving total or partial confinement or
          probation, when:

               (1) the defendant has derived a pecuniary gain from the
               crime; or

               (2) the court is of the opinion that a fine is specially
               adapted to deterrence of the crime involved or to the
               correction of the defendant.

          (c) Exception.─The court shall not sentence a defendant
          to pay a fine unless it appears of record that:

               (1) the defendant is or will be able to pay the fine; and

               (2) the fine will not prevent the defendant from making
               restitution or reparation to the victim of the crime.

          (d) Financial resources.─In determining the amount and
          method of payment of a fine, the court shall take into
          account the financial resources of the defendant and the
          nature of the burden that its payment will impose.

42 Pa.C.S. § 9726(b)-(d).

       “Imposition of a fine is not precluded merely because the defendant

cannot pay the fine immediately or because he cannot do so without

difficulty.”   Commonwealth v. Thomas, 879 A.2d 246, 264 (Pa. Super.

2005) (citing Commonwealth v. Church, 522 A.2d 30, 33 (Pa. 1987)).

       The trial court opined:




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           Prior to imposing the fines, the [c]ourt took into account
           Appellant’s financial resources, and specifically noted that
           $40,000 in cash had already been seized from his home
           and an additional $88,000 seized from his bank account.
           Accordingly, at the time of the sentencing, evidence
           appeared “of record,” of Appellant’s ability to pay a
           significant portion of the fines imposed.         Yet to be
           determined is the value of any other property that
           Appellant may own here in the United States or in Mexico
           where he frequently traveled. It was established during
           the investigation that Appellant was able to come up with
           tens of thousands of dollars to purchase cocaine. Other
           funds are likely to be discovered.      Since a fine is a
           permissible additional punishment where, as here, “the
           defendant has derived a pecuniary gain from the crime,”
           the challenged fines were properly imposed.

Trial Ct. Op. at 5 (citations omitted).

        In the case sub judice, the trial court considered Appellant’s financial

resources and his ability to pay the fine imposed.          See 42 Pa.C.S. §

9726(b)-(d); Boyd, 73 A.3d at 1273-74; Thomas, 879 A.2d at 264.             We

discern no abuse of discretion by the trial court.      See Boyd, 73 A.3d at

1274.    Accordingly, after examining the record as a whole, we affirm the

judgment of sentence. See id.; Devers, 546 A.2d at 18.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/12/2017




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