J-S85012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                        Appellee

                   v.

LUIS VASQUEZ

                        Appellant                    No. 1827 EDA 2016


            Appeal from the Judgment of Sentence May 5, 2014
              In the Court of Common Pleas of Monroe County
            Criminal Division at No(s): CP-45-CR-0002305-2012


BEFORE: PANELLA, J., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                            Filed January 13, 2017

      Appellant, Luis Vasquez, appeals from the judgment of sentence

entered after he pled guilty to two counts of third-degree murder. Vasquez

contends that the trial court abused its discretion in imposing standard range

sentences for each crime. After careful review, we affirm.

      On May 5, 2014, the trial court sentenced Vasquez to consecutive

sentences of 15 to 40 years for each murder. Vasquez did not file a post-

sentence motion or direct appeal. Vasquez subsequently filed a petition

pursuant to the Post Conviction Relief Act (“PCRA”). The PCRA court restored

Vasquez’s right to file a post-sentence motion.

      Thereafter, Vasquez filed a motion challenging the discretionary

aspects of his sentence. He declined to supplement the record created at the
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original sentencing hearing. The trial court denied his post-sentence motion,

and this timely appeal followed.

      Vasquez concedes that his only argument on appeal is a challenge to

the discretionary aspects of his sentence. See Appellant’s Brief, at 9-10. “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 inappropriateness of the sentence. See Commonwealth v. Tirado, 870

A.2d 362, 365 (Pa. Super. 2005). “Two requirements must be met before we

will review this challenge on its merits.” McAfee, 849 A.2d at 274. “First, an

appellant must set forth in his brief a concise statement of the reasons relied

upon for allowance of appeal with respect to the discretionary aspects of a

sentence.” Id. (citation omitted).

      “Second, the appellant must show that there is a substantial question

that the sentence imposed is not appropriate under the Sentencing Code.”

Id. (citation omitted). That is, “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.” Tirado,

870 A.2d at 365 (citation omitted). We examine an appellant’s Rule 2119(f)

statement to determine whether a substantial question exists. See id. “Our


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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).

       In the present case, Vasquez’s appellate brief contains the requisite

Rule 2119(f) concise statement. Furthermore, he preserved his argument

against the discretionary aspects of his sentence through a post-sentence

motion. Thus, he is in technical compliance with the requirements to

challenge the discretionary aspects of a sentence.

       Vasquez argues in his Rule 2119(f) statement that the trial court

abused its discretion “by sentencing Appellant in the standard range without

properly considering mitigating factors due to provocation and Appellant’s

lack of a prior criminal history.” Appellant’s Brief, at 10. Vasquez’s claim is

that the trial court did not adequately consider mitigating factors of record.1

This claim does not raise a substantial question for our review. See

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014)

(en banc), appeal denied, 104 A.3d 1 (Pa. 2014) (“[A]rguments that the

sentencing court failed to consider the factors proffered in 42 Pa.C.S. § 9721

does present a substantial question whereas a statement that the court

____________________________________________


1
  In his argument section, Vasquez concedes that the trial court “recognized
at sentencing that the victim(s) in this matter were actively committing loan
sharking and had previously threatened Appellant and his family with bodily
harm.” Appellant’s Brief, at 13.




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failed to consider facts of record, though necessarily encompassing the

factors of § 9721, has been rejected.”)

     Even if this claim were to raise a substantial question, we would find

no abuse of discretion. The trial court provided the following reasoning in

imposing sentence:

     Mr. Vasquez, I’ve had the opportunity and have read through
     this PSI [Presentence Investigation Report] actually multiple
     times, and what struck me was the juxtaposition of your entire
     life with what occurred on this particular day.

     But what troubled me was … the variety of contradictory
     statements and stories, both those that were contained in [the
     psychologist’s] report that I also read in the memoranda,
     sentencing memoranda, and then what was contained in the PSI
     itself, many different versions of events, some of them truly not
     plausible to me.

     At the same time, I also consider the fact that to this day and
     until the day of this offense you had a completely clean record,
     nothing violent, no – nothing. You had nothing in your records at
     all. By all accounts, you are a quiet, somewhat shy, peaceable
     man. You are young, and I understand that you’ve only achieved
     the eighth grade while you were in school in Guatemala. By all
     accounts, you’ve also always maintained gainful employment
     and had worked hard.

     I tried to understand the severity of the threats, and even by the
     accounts of [the victim’s] son, they appeared to be serious
     threats of harm to you and your family, and how perhaps
     psychologically that could impact you and actions you might
     undertake. At the same time, it befuddles me why you would not
     have reached out even to your own family about these kinds of
     things and ultimately not to the police to assist you in some way.

     And I probably consider and understand the wise [sic] of that as
     well. You know, perhaps you don’t think that the police would be
     helpful or that they might listen to you, what you had to say, or
     assist you and your family or protect you in the way that you


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     thought perhaps you were protecting your family with what you
     did.

     But ultimately, when I look at the mitigating circumstances that
     I just recited that I think are mitigating circumstances and then
     some of the aggravating circumstances here that I look at in
     terms of the willingness to really for the sake of both [the
     victims’ families,] and the Vasquez family really put out the truth
     there so everyone can put this to rest, that’s where I have
     difficulties with your sincerity.

     But when I balance those two things, I come up with several
     things. One is that I think that for each of these victims, each
     deserves a sentence that is run consecutive to each other. We
     have two people here, both of whom perhaps had different
     involvements with you. What happens in these kinds of cases is
     that everyone suffers, both these families and your own family,
     and it’s extremely, extremely troubling for everyone involved.

N.T., Sentencing, 5/5/14, at 29-31.

     In reviewing this statement, we note that the trial court clearly

considered not only the provocation offered by the victims, but also

Vasquez’s lack of any criminal or violent history. The trial court did not

abuse its discretion in concluding that these mitigating factors were

insufficient to warrant a lesser sentence. We also note that as the sentence

was within the standard range of the guidelines it was presumptively

reasonable. See Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa.

Super. 2009).

     Judgment of sentence affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/13/2017




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