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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                        :
RAMON GONZALEZ,                         :         No. 839 MDA 2019
                                        :
                       Appellant        :


    Appeal from the Judgment of Sentence Entered December 6, 2018,
             in the Court of Common Pleas of Dauphin County
             Criminal Division at No. CP-22-CR-0006202-2017



COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  v.                    :
                                        :
RAMON GONZALEZ,                         :         No. 840 MDA 2019
                                        :
                       Appellant        :


    Appeal from the Judgment of Sentence Entered December 6, 2018,
             in the Court of Common Pleas of Dauphin County
             Criminal Division at No. CP-22-CR-0006205-2017


BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED: MAY 18, 2020

     In these consolidated appeals, Ramon Gonzalez appeals from the

December 6, 2018 aggregate judgment of sentence of three to six years’

imprisonment, followed by five years’ probation, imposed after he pled guilty

to four counts of possession with intent to deliver a controlled substance
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(“PWID”) and two counts of criminal use of communication facility.1       After

careful review, we affirm the judgment the sentence.

        The factual history of this case is not relevant to our disposition and

need not be reiterated here. The relevant procedural history of this case, as

gleaned from the certified record, is as follows: On October 8, 2018, appellant

entered an open guilty plea to multiple drug offenses in connection with his

possession of 47 bundles of heroin. Appellant executed a written guilty plea

colloquy that same day. Specifically, at CP-22-CR-0006202-2017, appellant

pled guilty to three counts of PWID and two counts of criminal use of a

communication facility; and at CP-22-CR-0006205-2017, appellant pled guilty

to one additional count of PWID.       Sentencing was deferred pending the

completion of a pre-sentence investigation (“PSI”) report. On December 6,

2018, the trial court sentenced appellant to an aggregate term of three to six

years’ imprisonment, followed by five years’ probation. Thereafter, appellant

filed a post-sentence motion to modify his sentence that was denied by

operation of law on April 22, 2019. See Pa.R.Crim.P. 720(B)(3). On May 22,

2019, appellant filed two separate, timely notices of appeal for each docket

number, in compliance with Commonwealth v. Walker, 185 A.3d 969 (Pa.




1   35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 7512(a), respectively.


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2018), and its progeny.       On June 17, 2019, this court sua sponte

consolidated appellant’s appeals.2

      Appellant raises the following issue for our review:

            Whether the trial court abused its discretion in
            sentencing appellant to an aggregate sentence of
            three (3) to six (6) years of incarceration where the
            sentence is excessive and unreasonable in light of []
            appellant’s age, health issues, and rehabilitative
            needs?

Appellant’s brief at 6 (extraneous capitalization omitted).3

      Our standard of review in assessing whether a trial court has erred in

fashioning a sentence is well settled.

            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 of discretion is
            not shown merely by an error in judgment. Rather,
            [a]ppellant must establish, by reference to the record,

2The record reflects that appellant filed a timely concise statement of errors
complained of on appeal, in accordance with Pa.R.A.P. 1925(b) and the trial
court’s directive, on June 19, 2019. The trial court, in turn, filed its
Rule 1925(a) opinion on July 25, 2019.

3 Because appellant pled guilty, we must first examine the effect of his guilty
plea on his discretionary aspects of sentencing claim. “Generally, a plea of
guilty amounts to a waiver of all defects and defenses except those concerning
the jurisdiction of the court, the legality of the sentence, and the validity of
the guilty plea.”     Commonwealth v. Morrison, 173 A.3d 286, 290
(Pa.Super. 2017) (citation omitted). However, as a panel of this court
explained in Commonwealth v. Luketic, 162 A.3d 1149 (Pa.Super. 2017),
where a guilty plea is open and does not involve a negotiated sentence, as is
the case here, the entry of said plea will not preclude a challenge to the
discretionary aspects of sentencing. See id. at 1159, citing Commonwealth
v. Dalberto, 648 A.2d 16, 20 (Pa.Super. 1994) (emphasis in original; citation
omitted), appeal denied, 655 A.2d 983 (Pa. 1995), cert. denied, 516 U.S.
818 (1995).


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            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. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014) (citation

omitted), appeal denied, 117 A.3d 297 (Pa. 2015).

      Where an appellant challenges the discretionary aspects of his sentence,

the right to appellate review is not absolute.      Commonwealth v. Allen,

24 A.3d 1058, 1064 (Pa.Super. 2011).           On the contrary, an appellant

challenging the discretionary aspects of his sentence must invoke this court’s

jurisdiction by satisfying the following four-part test:

            (1) whether the appeal is timely; (2) whether
            appellant preserved his issue; (3) whether appellant’s
            brief includes a concise statement of the reasons
            relied upon for allowance of appeal with respect to the
            discretionary aspects of sentence; and (4) whether
            the concise statement raises a substantial question
            that the sentence is appropriate under the sentencing
            code.

Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)

(citations omitted).

      Instantly, the record reveals that appellant has filed timely notices of

appeal and preserved his discretionary sentencing claim in his post-sentence

motion to modify his sentence and his sentencing hearing.       Appellant also

included a statement in his brief that comports with the requirements of

Pa.R.A.P. 2119(f). (See appellant’s brief at 12-14.) Accordingly, we must

determine whether appellant has raised a substantial question.



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      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.”      Commonwealth v. Griffin, 65 A.3d

932, 935 (Pa.Super. 2013) (citation omitted), appeal denied, 76 A.3d 538

(Pa. 2013). “A substantial question exists only when 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.”    Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.Super. 2012)

(citation omitted), appeal denied, 63 A.3d 774 (Pa. 2013).

      Here, appellant contends that the trial court imposed an excessive and

unreasonable sentence without giving adequate consideration to “[his] age,

health issues, and rehabilitative needs.” (Appellant’s brief at 15-16.) This

court has recognized that a claim that the sentencing court failed to consider

individualized circumstances in fashioning a sentence, including an appellant’s

rehabilitative needs, raises a substantial question. See Commonwealth v.

Dodge, 77 A.3d 1263, 1273 (Pa.Super. 2013) (stating, “appellant’s claim that

the   sentencing   court   disregarded   rehabilitation   and   the   nature   and

circumstances of the offense in handing down its sentence presents a

substantial question for our review.”), appeal denied, 91 A.3d 161 (Pa.

2014).      Accordingly, we proceed to consider the merits of appellant’s

discretionary sentencing claim.




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      Contrary to appellant’s contention, our review of the December 6, 2018

sentencing hearing transcript reveals that the trial court considered and

weighed numerous factors in fashioning appellant’s sentence, including

appellant’s rehabilitation and treatment needs.       (See notes of testimony,

12/6/18 at 8-9.) The trial court also explicitly indicated that it considered

appellant’s health issues in structuring his three- to six-year term of

imprisonment, noting that it “expect[s] that [appellant] will take advantage of

treatment programs within the state correctional institution to address both

medical, chemical dependency, and, perhaps, psychological issues . . . .” (Id.

at 10, 12.) Although the record reflects that the trial court did not specifically

mention appellant’s age during the sentencing hearing, the trial court was

clearly aware of appellant’s age.4 Appellant testified at length with respect to

his deteriorating health and the fact that his crimes were precipitated by the

fact that his Social Security money “ran out.” (Id. at 5-6.) Additionally, the

trial court was in possession of a PSI report. (Id. at 3.) Where the trial court

has the benefit of a PSI report, “we shall . . . presume that the sentencing

judge was aware of relevant information regarding the defendant’s character

and weighed those considerations along with mitigating statutory factors.”

Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa.Super. 2014) (citation

omitted), appeal denied, 95 A.3d 275 (Pa. 2014).




4 Appellant indicates in his brief that he was 60 years old at the time of
sentencing.


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     Based on the foregoing, we find that appellant’s challenge to the

discretionary aspects of his sentence must fail. Accordingly, we affirm the

December 6, 2018 judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 05/18/2020




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