J-S23035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
DAVID SANCHEZ                               :
                                            :
                          Appellant         :
                                            :     No. 1502 EDA 2015

              Appeal from the Judgment of Sentence May 8, 2015
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0002232-2011

BEFORE: PANELLA, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED April 21, 2016

        Appellant, David Sanchez, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas after the court

granted Appellant PCRA1 relief, vacated its prior sentence based on 18

Pa.C.S. § 7508(a)(7)(ii), and resentenced him without reference to the

mandatory minimum statute.         Appellant claims that the trial court’s new

sentence of three and one-half to ten years’ imprisonment for possession

with intent to deliver a controlled substance 2 (“PWID”) was excessive. We

affirm.



*
    Former Justice specially assigned to the Superior Court.
1
 The Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-
9546.
2
    35 P.S. § 780-113(a)(30).
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        This Court adopts the facts set forth in the trial court opinion.   See

Trial Ct. Op., 7/30/12, at 2-4. On November 30, 2011, following a jury trial,

Appellant was found guilty of PWID, possession of a controlled substance, 3

and criminal conspiracy to commit PWID.4       On January 20, 2012, the trial

court determined Section 7508 applied to the PWID conviction, based on the

weight of the heroin involved, and sentenced Appellant to a mandatory five

to ten years’ incarceration on that count. Additionally, the court imposed a

consecutive two to four years’ incarceration for criminal conspiracy, resulting

in an aggregate sentence of seven to fourteen years’ imprisonment.5

        This Court affirmed the conviction on May 7, 2013. Commonwealth

v. Sanchez, 506 EDA 2012 (Pa. Super. May 7, 2013) (unpublished

memorandum). Appellant did not file a petition for allowance of appeal in

the Pennsylvania Supreme Court.

        Appellant timely filed a pro se PCRA petition on July 25, 2013.     The

PCRA court appointed counsel, who filed an amended PCRA petition on

September 17, 2014.      In his amended petition, Appellant claimed that his

sentence was unconstitutional under Alleyne v. United States, 133 S. Ct.



3
    35 P.S. § 780-113(a)(16).
4
    18 Pa.C.S. § 903.
5
 The trial court imposed no additional penalty for knowing and intentional
possession of a controlled substance.




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2151 (2013), because it was based on facts not submitted to the jury. Am.

Pet., 9/17/14, ¶14-22.   The Commonwealth did not file an answer to the

amended petition.

     The PCRA court granted relief, and on May 8, 2015, held a

resentencing hearing.6    The court vacated its prior PWID sentence and

resentenced Appellant to three and one-half to ten years’ imprisonment for

PWID.7

     On May 11, 2015, Appellant filed a post-sentence motion.          The trial

court denied his post-sentence motion on May 13, 2015. Appellant timely

filed a notice of appeal and a Pa.R.A.P. 1925(b) statement of errors

complained of on appeal. The trial court filed a responsive opinion.

     Appellant’s sole claim challenges the discretionary aspects of the three

and one-half to ten year sentence for PWID.      Appellant’s Brief at 4.     He

argues that the trial court imposed an excessive sentence contrary to

fundamental norms. Id. at 15. Appellant contends that his sentence was


6
  We note that neither the court nor the parties had the benefit of this
Court’s July 7, 2015 decision in Commonwealth v. Riggle, 119 A.3d 1058
(Pa. Super. 2015), which held Alleyne does not apply retroactively for the
purposes of post conviction collateral relief. However, the Commonwealth
did not object to resentencing.        Accordingly, we conclude that the
Commonwealth acceded to a withdrawal of its notice of intent of seek a
mandatory minimum sentence.
7
  The PCRA court did not amend its sentence of two to four years’
imprisonment for criminal conspiracy, which resulted in an aggregate
sentence of five and one-half to fourteen years’ imprisonment.




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aggravated in a manner reserved for “‘hard core’ offenders”, and that

impermissible weight was placed on his prior record and the circumstances

surrounding the crime. Id. at 16. We disagree.

      This Court has stated

         [c]hallenges to the discretionary aspects of sentencing do
         not entitle an appellant to an appeal as of right. Prior to
         reaching the merits of a discretionary sentencing issue:

            [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).

Commonwealth v. Lewis, 45 A.3d 405, 410 (Pa. Super. 2012) (en banc)

(some citations omitted). Further, “the Rule 2119(f) statement must specify

where the sentence falls in relation to the sentencing guidelines and what

particular provision of the Code is violated . . . . Similarly, the Rule 2119(f)

statement must specify what fundamental norm the sentence violates and

the manner in which it violates that norm . . . .”        Commonwealth v.

Googins, 748 A.2d 721, 727 (Pa. Super. 2000) (en banc).

      Instantly, Appellant preserved his issue in his post-sentence motion,

timely appealed, and included a Pa.R.A.P. 2119(f) statement in his brief.

See Lewis, 45 A.3d at 410; Googins, 748 A.2d at 727.               Further, we

conclude Appellant’s Pa.R.A.P. 2119(f) statement raises a substantial


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question that the trial court failed to consider mitigating factors when

sentencing in the aggravated range of the Sentencing Guidelines.               See

Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012).

      Our standard of review is as follows:

           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, the appellant must establish,
           by reference to the record, 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. Glass, 50 A.3d 720, 727 (Pa. Super. 2012) (citation

omitted).

      Section 9721(b) provides 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).     The weighing of these factors is exclusively for the sentencing

court. Commonwealth v. Bricker, 41 A.3d 872, 876 (Pa. Super. 2012).

      Further,

           A sentencing court may consider any legal factor in
           determining that a sentence in the aggravated range
           should be imposed. In addition, the sentencing judge’s
           statement of reasons on the record must reflect this
           consideration . . . .




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Commonwealth v. Bowen, 975 A.2d 1120, 1122 (Pa. Super. 2009)

(citations and quotation marks omitted).

     Instantly, the trial court explained its sentence as follows:

        The problem comes in . . . when you have four or five
        convictions of selling drugs and one for having a gun,
        which had I – when I read your presentence report all of
        that came to light. Not only that, but you had been
        arrested 13 times, seven convictions, seven commitments,
        four violation hearings, four revocation hearings.        You
        incurred this under State and Federal supervision. Those
        facts were so egregious to me . . . that I gave you a very
        harsh sentence. It was five to ten on the possession with
        intent to deliver, the mandatory minimum at that time, as
        well as two to four to run consecutive on the conspiracy. I
        just couldn’t find anything, quite frankly . . . that spoke to
        reasons to mitigate your sentence.

        You told the presentence evaluator that you did not feel
        you consistent drug abuse was a problem. You did not feel
        that it was a problem. You had no job skills, no education.
        Since the age of 19 you’ve been on a constant course of
        selling drugs and carrying a gun at least one time. So
        while I appreciate your letter very much, I’ve read it, and I
        appreciate that you seem to be doing better in custody,
        and you seem to have some insight now, but I am
        certainly concerned with how you conduct yourself once
        you’re released.

        So, . . . your previous sentence is vacated. . . . So your
        previous sentence of two to four consecutive remains. On
        the possession with intent to deliver, three and a half to
        ten.
N.T. Recons. of Sentence Hr’g, 5/8/15, at 10-13.

     Thus, the record shows that the trial court considered Appellant’s

mitigation evidence, weighed his rehabilitative needs, and articulated its

reasons for imposing sentence.    See Glass, 50 A.3d at 727; Bricker, 41




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A.3d at 876; Bowen, 975 A.2d at 1122. Accordingly, Appellant’s assertion

that the trial court failed to consider mitigating circumstances fails. Further,

our review of the record, namely, the nature and circumstances of the

offense, the trial court’s observations, and the findings that formed the basis

of its sentence, reveals no basis to conclude the trial court abused its

discretion or its sentence was excessive. See Glass, 50 A.3d at 727.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/21/2016




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