J-S33008-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    EDWIN CALOMONTANEZ,                        :
                                               :
                       Appellant               :   No. 3208 EDA 2017

              Appeal from the Judgment of Sentence July 17, 2017
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0001337-2016


BEFORE:      OTT, J., McLAUGHLIN, J., and STEVENS, P.J.E.

MEMORANDUM BY OTT, J.:                                 FILED AUGUST 30, 2018

        Edwin Calomontanez appeals the judgment of sentence imposed on July

17, 2017, in the Court of Common Pleas of Monroe County. Calomontanez

pleaded guilty to conspiracy to possess with intent to deliver a controlled

substance (heroin, 50-100 grams),1 and the trial court sentenced him to a

term of imprisonment of not less than 30 months less one day nor more than

60 months less one day. The sole issue raised in this appeal is a challenge to

the discretionary aspects of the sentence. Based on the following, we affirm.

        The trial court has summarized the background of this case, which we

reiterate, in part:

        [The trial court] held a sentencing hearing on July 17, 2017. After
        considering the presentence investigation report and the
____________________________________________


   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S. § 903; 35 P.S. § 780-113(a)(30).
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       arguments of counsel, [the trial court] sentenced [Calomontanez]
       to be incarcerated in a State Correctional Institution for a period
       of not less than 30 months less 1 day nor more than 60 months
       less 1 day. [The trial court] considered both aggravating and
       mitigating factors and ultimately sentenced [Calomontanez]
       within the standard range. [Calomontanez] was found to be
       eligible for RRRI, and accordingly his alternative minimum
       sentence was set at 22 months and 15 days. Additionally, [the
       trial court] found [Calomontanez] statutorily eligible for admission
       to the Boot Camp Program, and recommended that he be placed
       in such program.

       [Calomontanez] filed a Motion to Reconsider Sentence on July 27,
       2017, claiming his sentence was excessive. [The trial court]
       denied [Calomontanez’s] Motion for Reconsideration by Order
       dated July 31, 2017.

       On September 29, 2017, [Calomontanez] filed a Notice of
       Appeal.[2] On the same day, [the trial court] ordered a Concise
       Statement to be filed within twenty-one (21) days.
       [Calomontanez] filed said statement on October 20, 2017.

Trial Court Opinion, 11/22/2017, at 4.

       The principles that guide our review are well settled:

       It is well-settled that “[t]he right to appeal a discretionary aspect
       of sentence is not absolute.” Commonwealth v. Dunphy, 2011
       PA Super 100, 20 A.3d 1215, 1220 (Pa. Super. 2011). Rather,
       where an appellant challenges the discretionary aspects of a
       sentence, an appellant’s appeal should be considered as a petition
       for allowance of appeal. Commonwealth v. W.H.M., 2007 PA
       Super 249, 932 A.2d 155, 162 (Pa. Super. 2007). As we stated in
       Commonwealth v. Moury, 2010 PA Super 46, 992 A.2d 162 (Pa.
       Super. 2010):


____________________________________________


2 Because counsel filed a motion to withdraw as counsel, and due to
Calmontanez’s transfer to a State Correctional Institution prior to a hearing
on the motion, the trial court, by Order dated August 14, 2017, and entered
August 15, 2017, extended the time for appeal to September 29, 2017.

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      An appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction by satisfying a four-part test:

            [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).

      Id. at 170 (citing Commonwealth v. Evans, 2006 PA Super 132,
      901 A.2d 528 (Pa. Super. 2006)). Whether a particular issue
      constitutes a substantial question about the appropriateness of
      sentence is a question to be evaluated on a case-by-case basis.
      See Commonwealth v. Kenner, 2001 PA Super 292, 784 A.2d
      808, 811 (Pa. Super. 2001), appeal denied, 568 Pa. 695, 796
      A.2d 979 (2002).

Commonwealth v. Radecki, 180 A.3d 441, 467 (Pa. Super. 2018).

      Calomontnez has complied with the procedural requirements for this

discretionary aspects of sentencing challenge by filing a timely appeal to this

Court, preserving the sentencing issue in his post-sentence motion, and

including a Pa.R.A.P. 2119(f) statement in his brief. The final requirement is

that Calomontanez’s Rule 2119(f) statement must raise a substantial

question.

      It is well settled that a substantial question exists

      “when the 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. Phillips, 2008 PA Super 30, 946 A.2d 103,
      112 (Pa. Super. 2008) (citation omitted), appeal denied, 600 Pa.
      745, 964 A.2d 895 (2009). “[W]e cannot look beyond the

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      statement of questions presented and the prefatory [Rule] 2119(f)
      statement to determine whether a substantial question exists.”
      Commonwealth v. Christine, 2013 PA Super 246, 78 A.3d 1, 10
      (Pa. Super. 2013), affirmed, 633 Pa. 389, 125 A.3d 394 (Pa.
      2015).

Radecki, supra, 180 A.3d at 468. Here, Calomontanez claims the trial court

abused its discretion “by sentencing [Calomontanez] in the standard range

without properly considering mitigating factors due to [Calomontanez’s]

family background and [Calomontanez’s] lack of significant prior criminal

history. As a result, the sentence imposed constituted a manifest abuse of

discretion.”   Calomontanez’s Brief at 11 (Concise Statement Pursuant to

Pa.R.A.P. 2119(f)).

      We have held on numerous occasions that “a claim of inadequate

consideration of mitigating factors does not raise a substantial question for

our review.” Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super.

2013) (citations omitted). See also Commonwealth v. Patterson, 180 A.3d

1217, 1233 (Pa. Super. 2018) (no substantial question raised where

defendant’s claim was that the trial court failed to fully consider mitigating

factors such as appellant’s age, prior record score, lack of violent tendencies

prior to the shooting, and appellant’s belief that his life was in danger);

Radecki, supra, 180 A.3d at 469 (collecting cases) (finding claim of

inadequate consideration of mitigating factors, specifically, defendant’s

“advanced age ”of over seventy years, failed to raise a substantial question).

Therefore, we conclude Calomontanez has failed to raise a substantial

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question that warrants review of his sentencing claim on the merits. However,

even if we were to determine that Calomontanez raised a substantial question

for our review, we would still conclude no relief is due.

      In reviewing a challenge to the discretionary aspects of the sentence,

we recognize:

      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. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015) (citation

omitted).   Further, where, as here, the trial court sentenced within the

guidelines, we may only vacate the judgment of sentence if it is “clearly

unreasonable.” 42 Pa.C.S. § 9781(c)(2).

      At sentencing, the trial judge had the benefit of a presentence

investigation   report   (PSI)   and   additional   information   provided   by

Calomontanez, through his counsel, at the sentencing hearing. The Honorable

Margherita Patti-Worthington explained:

      It should be noted that a PSI was completed in the instant case.
      However, due to [Calomontanez’s] failure to appear for the PSI, it
      lacked valuable information. That being said, while the PSI did not
      provide the Court with much information, relevant mitigating
      factors were given full consideration and addressed on the record
      at the time of sentencing.


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     At the outset of sentencing, We noted our concern about the lack
     of information contained in the PSI. Notes of Testimony,
     Sentencing, 7/17/17, p. 3 (hereinafter “N.T., Sentencing, _ .”).
     [Calomontanez], through his attorney, noted that he did in fact
     miss his PSI appointment. Id. at 3-4. [Calomontanez] then
     relayed to the Court that he had one prior conviction for
     possession in 2013 in Buffalo, New York, to which he had pled
     guilty. Id. at 4. [Calomontanez] explained that it was his
     understanding

        that that case is going to be getting dismissed as part of a
        drug program that they have [in New York] for first-time
        offenders. It was a misdemeanor case. It was nothing like
        this case, because, granted, this case is of a major nature
        because of the amount of drugs involved. But that’s all that
        he has on his record, and I think that went a long way
        toward the Commonwealth making their recommendation
        in this case, that they don’t have any objection to the Court
        imposing either a RRRI calculation as part of whatever
        sentence you give or make him eligible for the boot camp
        program.

     Id. at 4-5. [Calomontanez] further provided that

        He simply wanted to come in and say, ‘[l]isten I did this.’
        He wanted to take responsibility, and so he did, so he took
        the plea, and I would ask the Court to consider that, the
        fact that he has taken full responsibility in this case, in
        imposing whatever sentence you do.

     Id. at 6. [Calomontanez] then provided the Court information
     about his family circumstances. [Calomontanez] informed the
     Court that [Calomontanez] had a pregnant fiancee, whom was
     present for the hearing, and that he has eight children. Id. at 7,
     15. [Calomontanez] told the Court that he was providing weekly
     financial support for some of his eight children. Id. at 15.
     [Calomontanez] revealed that his mother was experiencing health
     issues. Id. at 11. [Calomontanez] also informed the Court that he
     had a job at the Cheesecake Factory, and had been working there
     for three months; however, he could not produce a pay stub or
     otherwise provide proof of employment to the Court. Id. at 7.

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     Additionally, [Calomontanez] revealed that “he has been going
     through that drug court program up there in New York,” Id.
     [Calomontanez] also proffered that “he has absolutely no
     connection to this area whatsoever.” Id. at 7-8.

     In sum, [Calomontanez] asked the Court “to consider giving him
     a mitigated range sentence given the fact that he has no
     connection to this area whatsoever and we’re talking about
     essentially, you know, a first time offender with the exception of
     that very minor offense up in Buffalo.” Id. at 9-10.

     Given all of the above information, We concluded that although
     “Mr. Calomontanez comes before the Court with a zero prior
     record score but a prior offense, drug offense.” Id. at 14.
     However, “this was a good amount of heroin and pills.”
     Additionally, this Court explained that “the standard range here is
     22 to 36. The aggravating factor is failure to appear for the PSI,
     although I do not believe that puts this in the aggravated range
     of sentence. I do not find that this is an appropriate sentence for
     a mitigated range ... I do find that Mr. Calomontanez should
     receive the benefit of boot camp eligibility as well as RRRI.”

     This Court then ordered that [Calomontanez] be sentenced to a
     period of incarceration in a State Correctional Institution for a
     period of not less than 30 months less 1 day nor more than 60
     months less one day. [The trial court] found [Calomontanez]
     eligible for the Boot Camp Program, and recommended
     [Calomontanez] be placed in such program. Additionally, [the trial
     court] found [Calomontanez’s] alternative minimum sentence
     pursuant to RRRI eligibility to be 22 months and 15 days.

     As previously stated, [Calomontanez] pled guilty in the present
     case to Count 1 of the Criminal Information, Conspiracy to Possess
     with Intent to Deliver Heroin, between 50 and 100 grams.
     [Calomontanez’s] Prior Record Score is zero (0), but has a prior
     drug offense, and the Offense Gravity Score is ten (10). The
     standard range for the offense, therefore, is twenty-two months
     to thirty-six months (22-36), with an aggravated/mitigated range
     of plus or minus twelve (12) months. The statutory limit for
     Conspiracy to Possess with Intent to Deliver Heroin, between 50
     and 100 grams is one hundred and eighty (180) months. As
     previously stated, this Court sentenced [Calomontanez] to not

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      less than 30 months less one day, nor more than 60 months less
      one day. [Calomontanez’s] sentence falls within the standard
      range of permissible sentences, which is an appropriate exercise
      of this Court’s discretion. Additionally, such sentence was imposed
      after giving full consideration on the record to relevant mitigating
      circumstances presented at the time of sentencing.

Trial Court Opinion, 11/22/2017, at 6-9.

      Our review of the transcript of the sentencing hearing confirms the trial

court considered the PSI and the mitigating circumstances stated on the

record by trial counsel and Calomontanez at the sentencing hearing.

Furthermore, the trial court imposed a standard range sentence.          In this

regard,

      [w]here the sentencing court impose[s] a standard-range
      sentence with the benefit of a pre-sentence report, we will not
      consider the sentence excessive. In those circumstances, we can
      assume the sentencing court was aware of relevant information
      regarding the defendant's character and weighed those
      considerations along with mitigating statutory factors.

Commonwealth v. Corley, 31 A.3d 293, 298 (Pa. Super. 2011). See also

Radecki, supra, 180 A.3d at 471. Accordingly, there is no basis upon which

to disturb the sentence imposed by the trial court.

      Therefore, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

      Judge McLaughlin joins this memorandum.

      President Judge Emeritus Stevens concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/30/18




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