J-A28028-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

    JONATHAN LIRIANO-RODRIGUEZ

                             Appellant                 No. 748 EDA 2019


        Appeal from the Judgment of Sentence entered February 7, 2019
                 In the Court of Common Pleas of Lehigh County
                Criminal Division at No: CP-39-CR-0000582-2017


BEFORE: PANELLA, P.J., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                            FILED MARCH 09, 2020

        Appellant, Jonathan Liriano-Rodriguez, appeals from the judgment of

sentence imposed on February 7, 2019 in the Court of Common Pleas of Lehigh

County following Appellant’s entry of an open guilty plea to a charge of third-

degree murder.1       Appellant argues that the sentence of 20 to 40 years in

prison was excessive. Following review, we affirm.

        The procedural history is not in dispute. Briefly, Appellant entered a

guilty plea to third-degree murder on December 10, 2018. In exchange for

the plea, the Commonwealth agreed not to seek a first-degree murder




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*   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S.A. § 2502(c).
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conviction.    In all other respects, the plea was open.    Trial Court Opinion,

3/28/19, at 1.

       Following receipt and review of a pre-sentence investigation report, the

court sentenced Appellant on February 7, 2019 to a term of 20 to 40 years in

prison, a sentence within the standard range of the guidelines.        Id. at 2.

Appellant filed a post-sentence motion, which the trial court denied on

February 20, 2019. This timely appeal followed. Both Appellant and the trial

court complied with Pa.R.A.P. 1925.2

       Appellant asks us to consider one issue in this appeal:

       A. Whether the trial court abused its discretion by imposing a
          sentence that was manifestly excessive and did not consider
          the Sentencing Code criteria?

Appellant’s Brief at 5.

       Appellant presents a challenge to the discretionary aspects of his

sentence. As this Court has explained:

       Our standard of review in assessing whether a trial court has erred
       in fashioning a sentence is well settled. “[T]he proper standard of
       review when considering whether to affirm the sentencing court’s
       determination is an abuse of discretion.” Commonwealth v.
       Provenzano, [] 50 A.3d 148, 154 (Pa. Super. 2012) (quoting
       Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957, 961 (Pa.
       2007)). “[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.” Id. “An abuse of discretion may not be found
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2 Although Appellant complied with the trial court’s directive to file a Rule
1925(b) statement, Appellant failed to append a copy of the statement to his
appellate brief, as required by Pa.R.A.P. 2111(a)(11) and (d).

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      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.” Id.

Commonwealth v. Bullock, 170 A.3d 1109, 1126 (Pa. Super. 2017).

      “[I]ssues challenging the discretionary aspects of a sentence must be

raised in a post-sentence motion or by presenting the claim to the trial court

during the sentencing proceedings.      Absent such efforts, an objection to a

discretionary aspect of a sentence is waived.” Commonwealth v. Shugars,

895 A.2d 1270, 1273-74 (Pa. Super. 2006) (citation omitted).”            As noted

above, Appellant preserved the issue by raising it in his post-sentence motion.

      We begin our review of Appellant’s issue by noting that “[a] challenge

to the discretionary aspects of a sentence must be considered a petition for

permission to appeal, as the right to pursue such a claim is not absolute.”

Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) (citation

omitted).   When challenging the discretionary aspects of the sentence

imposed, an appellant must present a substantial question as to the

appropriateness of the sentence. Commonwealth v. Tirado, 870 A.2d 362,

365 (Pa. Super. 2005). In Tirado, this Court explained:

      An appellant must, pursuant to Pennsylvania Rule of Appellate
      Procedure 2119(f), articulate “the manner in which the sentence
      violates either a specific provision of the sentencing scheme set
      forth in the Sentencing Code or a particular fundamental norm
      underlying the sentencing process.”           Commonwealth v.
      Mouzon, 571 Pa. 419, 435, 812 A.2d 617, 627 (2002). Only if
      an appellant’s Rule 2119(f) statement meets these prerequisites
      can we determine whether a substantial question exists.
      Commonwealth v. Goggins, [] 748 A.2d 721, 727 (Pa. Super.


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      2000) (en banc), appeal denied, 563 Pa. 672, 759 A.2d 920
      (2000).

Id. at 365.

      We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists. “Our inquiry must focus on the reasons

for which the appeal is sought, in contrast to the facts underlying the appeal,

which are necessary only to decide the appeal on the merits.” Id. (citation

omitted) (emphasis in original).

      Appellant includes what is nominally “a concise statement on appeal

with respect to the discretionary aspects of the sentence.” Appellant’s Brief

at 6. In the statement, Appellant recognizes the requirement to include the

statement and the need to show “that there is a substantial question that the

sentence is not appropriate under the Sentencing Code.”          Id. (quoting

Commonwealth v. Mouzon, 812 A.2d 617, 621 (Pa. 2002)).                      After

suggesting that this Court will allow an appeal if an appellant advances a

colorable argument that the judge’s actions were inconsistent with the

Sentencing Code or contrary to the fundamental norms underlying the

sentencing process, Appellant states:

      In the instant matter, the trial court imposed a sentence of twenty
      to forty years. It was the maximum sentence that the court could
      have imposed. [Appellant] had no substantial criminal record, a
      strong work and family history and does not have a history of anti-
      social behavior. As a result, the Appellant believes that she (sic)
      has raised a substantial sentencing issue.




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Id.3

       It is not clear what “substantial question” Appellant’s purports to raise

in his Rule 2119(f) statement. This Court has determined that bald claims of

an excessive sentence do not raise a substantial question, see, e.g.,

Commonwealth v. Zeigler, 112 A.3d 656, 662 (Pa. Super. 2015).

“However, an excessiveness claim in conjunction with an assertion that the

court did not adequately consider a mitigating factor may present a substantial

question.” Id. Giving Appellant the benefit of the doubt, and in light of the

fact his statement of question presented asserts an excessive sentence and

the court’s failure to consider mitigating factors, we will consider the merits of

his claim.4

       The trial court explained that Appellant’s minimum sentence “was within

the standard range of the guidelines” while “[t]he maximum was set at the

statutory maximum. Unquestionably, the sentence imposed did not exceed

the statutory limits.”        Order, 2/20/19, at n.1 (emphasis in original).



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3 We caution Appellant’s counsel against cutting and pasting portions of briefs
submitted to this Court. While the simple inclusion of the word “she” rather
than “he” might not suggest that counsel cut and pasted in this instance, a
review of the summary of argument confirms that is exactly what he did. The
summary included on page 8 of Appellant’s brief refers to a sufficiency and
weight of evidence claim in a drug case involving a Ms. Ramirez.

4Similarly, in his post-sentence motion, Appellant argued that his “sentence
was excessive, harsh and did not take into consideration the numerous
mitigating factors demonstrated at sentencing.”       Post-Sentence Motion,
2/21/19, at ¶ 2.

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Therefore, the court considered whether the sentence was “manifestly

excessive.” As the court recognized:

      In determining whether a sentence is manifestly excessive, the
      appellate court must give great weight to the sentencing court’s
      discretion, as he or she is in the best position to measure factors
      such as the nature of the crime, the defendant’s character, and
      the defendant’s display of remorse, defiance, or indifference.

Id. (quoting Mouzon, 828 A.2d at 1128 (citation omitted)). Here, the record

belies Appellant’s assertion that the court failed to consider mitigating factors.

As the trial court explained:

      Prior to sentencing, this court carefully reviewed the pre-sentence
      investigation report prepared on January 7, 2019. Therefore this
      court did not fail to consider mitigating factors. Commonwealth
      v. Devers, 518 Pa. 88, 546 A.2d 12 (1988) (holding that where
      a pre-sentence report exists, there is a presumption that the
      sentencing judge was aware of and adequately considered
      information relevant to the defendant’s character, as well as any
      mitigating factors).      Indeed, this court was cognizant of
      [Appellant’s] age, [Appellant’s] prior record, the situation and
      circumstances giving rise to the event, [Appellant’s] employment
      history and [Appellant’s] family.

      With all of this information in mind, this court used its discretion
      and imposed a sentence that was within the standard range of the
      guidelines and in compliance with the plea agreement.

Id. (some capitalization omitted) (emphasis in original).

      Based on our review, we discern no abuse of discretion on the part of

the sentencing court in imposing a sentence of 20 to 40 years in prison for

third-degree murder. See Commonwealth v. Saranchak, 675 A.2d 268,

277 n.17 (Pa. 1996) (“It is well-established that a sentencing court can impose

a sentence that is the maximum period authorized by the statute.”). As the


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trial court explained, the court reviewed the pre-sentence investigation report

and “wholeheartedly considered 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.’”      Order,

2/20/19 at n. 1 (quoting 42 Pa.C.S.A. § 9721 and citing Commonwealth v.

Feucht, 955 A.2d 377, 383 (Pa. Super. 2008)). Therefore, we will not disturb

the sentence.

      Judgment affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2020




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