J-S40007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    JEFFREY REYNOLDO GARCIA,

                             Appellant               No. 1522 WDA 2018


         Appeal from the Judgment of Sentence Entered August 7, 2018
               In the Court of Common Pleas of Venango County
             Criminal Division at No(s): CP-61-CR-0000703-2017

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    JEFFREY REYNOLDO GARCIA,

                             Appellant               No. 1523 WDA 2018


         Appeal from the Judgment of Sentence Entered August 7, 2018
               In the Court of Common Pleas of Venango County
             Criminal Division at No(s): CP-61-CR-0000651-2017


BEFORE: BENDER, P.J.E., MCLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.:                   FILED SEPTEMBER 24, 2019

        Appellant, Jeffrey Reynoldo Garcia, appeals from the judgment of

sentence of an aggregate term of 4½ to 15 years’ incarceration, imposed after

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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he pled guilty in two separate cases1 to possessing an instrument of crime

(PIC), 18 Pa.C.S. § 907(a); providing false identification to law enforcement,

35 Pa.C.S. § 4914(a); forgery, 18 Pa.C.S. § 4104(a)(2); and identity theft, 18

Pa.C.S. § 4120(a). On appeal, Appellant challenges the trial court’s calculation

of his prior record score (PRS) in fashioning his sentence. After careful review,

we affirm.

       The facts of Appellant’s underlying offenses are not pertinent to the

issue he raises on appeal.        On May 17, 2018, Appellant pled guilty to the

above-stated offenses. After a pre-sentence investigation (PSI) report was

prepared, the court calculated Appellant’s PRS as being a seven. That PRS

included four points for a 1st degree felony robbery that Appellant had

committed as a juvenile in New York. On August 7, 2018, the court sentenced

Appellant in the present case to the aggregate term set forth above. Appellant

filed a timely post-sentence motion, which was denied on September 27,

2018.2




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1 This Court sua sponte consolidated Appellant’s appeals in his two cases by
order entered November 15, 2018.

2 Despite that Appellant filed a post-sentence motion in both of his two cases,
the court’s order denying the motion was only docketed and included in the
certified record of the case docketed at CP-61-CR-0000703-2017 (“703-
2017”).



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       Appellant filed a timely notice of appeal, and he also timely complied

with the trial court’s order to file a Pa.R.A.P. 1925(b) statement. 3 The court

subsequently filed a Rule 1925(a) opinion. Herein, Appellant states one issue

for our review: “Did the … trial court err in calculating [Appellant’s PRS,]

thereby resulting in a sentence outside the range of the standard guidelines?”

Appellant’s Brief at 5.

       We begin by recognizing that Appellant’s claim constitutes a challenge

to the discretionary aspects of his sentence.         See Commonwealth v.

Spenny, 128 A.3d 234, 241 (Pa. Super. 2015) (citation omitted).

       [S]uch challenges are not subject to our review as a matter of
       right. “An appellant must satisfy a four-part test to invoke this
       Court’s jurisdiction when challenging the discretionary aspects of
       a sentence,” by (1) preserving the issue in the court below, (2)
       filing a timely notice of appeal, (3) including a statement pursuant
       to Pa.R.A.P. 2119(f) (“Rule 2119(f) statement”) in his brief on
       appeal, and (4) raising a substantial question for our review.
       Commonwealth v. Tejada, 107 A.3d 788, 797 (Pa. Super. 2015)
       (citation omitted).

Id.

       Here, Appellant preserved his PRS issue before the trial court in a post-

sentence motion, he filed a timely notice of appeal, and he includes a Rule

2119(f) statement in his brief. Additionally, his issue constitutes a substantial

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3 Appellant only filed a Rule 1925(b) statement in the case docketed at CP-
61-CR-0000651-2017 (“651-2017”), in which he pled guilty to PIC and
providing false identification to law enforcement. In the case at 703-2017,
the court issued a Rule 1925(a) opinion concluding that Appellant had waived
his issues by not filing a Rule 1925(b) statement. See Trial Court Opinion in
703-2017, 1/29/19, at 1. Thus, we only review Appellant’s challenge to the
calculation of his PRS in regard to the sentence imposed in 651-2017.

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question   for   our   review.      See    id.   (citation    omitted);   see     also

Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012) (citing

Commonwealth v. Janda, 14 A.3d 147, 165 (Pa. Super. 2011)). Thus, we

will address his sentencing claim herein, applying the following standard of

review:

      [T]he proper standard of review when considering whether to
      affirm the sentencing court’s determination is an abuse of
      discretion. [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. In more expansive terms, our Court recently
      offered: An abuse of discretion may not be found 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.

Provenzano, 50 A.3d at 154 (quoting Commonwealth v. Walls, 926 A.2d

957, 961 (Pa. 2007) (citations and quotation marks omitted)).

      Appellant contends that the trial court erred by factoring his New York

robbery offense into the calculation of his PRS.         He explains that he was

adjudicated and sentenced for that crime as a ‘youthful offender,’ which does

not constitute a conviction under New York law.              See N.Y. Crim. Pro. §

720.35(1) (“A youthful offender adjudication is not a judgment of conviction

for a crime or any other offense….”). Appellant concedes that “Pennsylvania

law allows for juvenile adjudications to be counted toward the [PRS]….”

Appellant’s Brief at 14. He insists, however, that “the New York law applicable

to [y]outhful [o]ffenders is not equivalent nor is it similar to a Pennsylvania


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juvenile adjudication.” Id. In support, Appellant claims only that, “[a]s a

youthful offender, [he] is not deemed to have been convicted of the charge[,]”

and that “Pennsylvania law differs.” Id. (citing N.Y. Crim.P. 720.35(1)).

       Appellant’s    argument      is   unconvincing.   “It   is   axiomatic    that

adjudications of juvenile delinquency are not criminal convictions.”            In re

C.A.G., 89 A.3d 704, 713 (Pa. Super. 2014) (citation omitted). As Appellant

does not identify any way in which his New York adjudication as a youthful

offender differs from a juvenile adjudication of delinquency in Pennsylvania,

he has not convinced us that the trial court erred in calculating his PRS. 4

Accordingly, we affirm Appellant’s judgment of sentence.5

       Judgment of sentence affirmed.




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4 We note that Appellant suggests, in a single sentence, that his New York
adjudication should not have been counted in his PRS because the court failed
to make an “express finding … that the adjudication was for a felony or one of
the Misdemeanor 1 offenses.” Appellant’s Brief at 15 (quoting 204 Pa.Code §
303.7(a)(4)). However, Appellant did not raise this issue at sentencing, or in
his post-sentence motion; thus, it is waived. See Commonwealth v.
Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013) (“[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.”) (citation omitted).

5  To the extent that the trial court rejected Appellant’s PRS argument on
slightly different grounds, we observe that this Court is permitted to affirm
the trial court “on any valid basis, as long as the court came to the correct
result….” Wilson v. Transport Ins. Co., 889 A.2d 563, 577 n.4 (Pa. Super.
2005) (citations omitted).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/24/2019




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