Com. v. Ayala, M.

• Court: Superior Court of Pennsylvania
• Decided: May 31, 2024
• Docket: 876 MDA 2023
• Status: Unpublished

Opinion

J-A07023-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARIO ESTEBAN AYALA : : Appellant : No. 876 MDA 2023

Appeal from the Judgment of Sentence Entered May 18, 2023 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0001128-2020

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

MEMORANDUM BY SULLIVAN, J.: FILED: MAY 31, 2024

Mario Esteban Ayala (“Ayala”) appeals from the judgment of sentence

imposed following the revocation of his probation. Additionally, Ayala’s

counsel (“Counsel”) has filed a motion to withdraw from representation and a

brief pursuant to Anders v. California, 386 U.S. 738 (1967), and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we

grant Counsel’s motion to withdraw and affirm the judgment of sentence.

In July 2021, Ayala pleaded guilty to one count each of indecent assault

and corruption of minors.1 The charges arose from Ayala’s sexual assault of

his girlfriend’s four-year-old daughter. The trial court subsequently found

Ayala to be a sexually violent predator (“SVP”) and sentenced him to fifteen

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* Former Justice specially assigned to the Superior Court.

1 See 18 Pa.C.S.A. §§ 3126(a)(7) and 6301(a)(1)(i). J-A07023-24

to thirty-six months of incarceration to be followed by four years of probation.

The trial court gave Ayala credit for seven hundred eighty-five days of time

served.

In January 2023, Ayala was placed on probation and signed his

conditions of probation, as well as special sex offender conditions of probation.

See N.T., 5/18/23, at 4; Commonwealth’s Brief at 3 n. 1. In March 2023,

Ayala tested positive for cocaine and admitted to using alcohol, both violations

of his probation. See N.T., 5/18/23, at 4. Ayala’s State Probation Agent,

Mike Balatincz (“Agent Balatincz”), also found pornography on Ayala’s cell

phone in violation of his sex offender probation conditions. See id. at 5.

Lastly, despite Agent Balatincz’s warning to Ayala to stop communicating with

the victim’s mother, Ayala continued to do so. See id.

At his violation of probation hearing in May 2023, Ayala admitted to

violating his probation. After hearing testimony from Berks County Adult

Probation Officer Tayris Munoz (“Officer Munoz”) and Agent Balatincz, as well

as statements from the Commonwealth, Counsel, and Ayala, the

violation-of-probation court sentenced Ayala, in accordance with Officer

Munoz’s recommendation, to eighteen to forty-eight months of incarceration,

to be followed by four years of probation. Ayala filed a post-sentence motion,

which the court denied. The instant appeal followed.

In response to the trial court’s order for a Pa.R.A.P. 1925 concise

statement, Counsel submitted a statement of intent to file an Anders brief

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pursuant to Pa.R.A.P. 1925(c)(4). The violation-of-probation court issued a

statement in lieu of an opinion stating because of Counsel’s intent to file an

Anders brief, it “respectfully request[ed Ayala’s] appeal be denied.”

Statement in Lieu of Opinion, 7/20/23, at 2 (unnumbered). Counsel

subsequently filed an Anders brief in this Court, asserting Ayala’s appeal is

frivolous and requesting permission to withdraw from representation. Ayala

has not filed a response.

We first address Counsel’s application to withdraw. See

Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010) (“When

presented with an Anders brief, this Court may not review the merits of the

underlying issues without first passing on the request to withdraw.”). Before

being permitted to withdraw pursuant to Anders, counsel must satisfy certain

procedural and substantive requirements. Commonwealth v. Tejada, 176

A.3d 355, 358 (Pa. Super. 2017). Procedurally, counsel must:

1) petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous; 2) furnish a copy of the [Anders] brief to the defendant; and 3) advise the defendant that he or she has the right to retain private counsel or raise additional arguments that the defendant deems worthy of the court’s attention.

Id. at 359 (citation omitted). Substantively, counsel is required to file an

Anders brief, in which counsel must:

(1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel’s conclusion that the appeal is frivolous; and (4) state

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counsel’s reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361.

Counsel has complied with Anders’s procedural and substantive

requirements. Counsel states in his motion to withdraw he found Ayala’s issue

to be frivolous after conducting a thorough review of the record. See Motion

to Withdraw as Counsel, 11/15/23, at 2 (unnumbered). Counsel attached to

his application a copy of the letter he sent to Ayala, in which Counsel advised

Ayala he could retain private counsel or proceed pro se. See id. at Ex. A; see

also Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).

Counsel also provided Ayala with a copy of the Anders brief, which

summarizes the facts and procedural history, includes the issue that could

arguably support Ayala’s appeal, and explains Counsel’s assessment of why

the issue is frivolous. Accordingly, we review the issue presented in Counsel’s

Anders brief. We also conduct an independent review of the record to

determine whether Ayala’s appeal is in fact wholly frivolous. See Santiago,

978 A.2d at 358; see also Commonwealth v. Dempster, 187 A.3d 266,

272 (Pa. Super. 2018) (en banc) (“part and parcel of Anders is our Court’s

duty to review the record to insure no issues of arguable merit have been

missed or misstated.”).

Counsel’s Anders brief presents the following issue:

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Whether the [violation-of-probation] court abused its discretion by considering impermissible factors at sentencing and imposing an excessive sentence on [Ayala] when the sentence imposed is inconsistent with the protections of the public, the gravity of the offense, the impact on the victim, and the rehabilitative needs of [Ayala?]

Anders Brief at 8.

Ayala challenges the discretionary aspects of his sentence. See id. at

17-23. “[I]t is within our scope of review to consider challenges to the

discretionary aspects of an appellant’s sentence in an appeal following a

revocation of probation.” Commonwealth v. Ferguson, 893 A.2d 735, 737

(Pa. Super. 2006). A challenge to the discretionary aspects of a sentence

“must be considered a petition for permission to appeal.” Commonwealth v.

Best, 120 A.3d 329, 348 (Pa. Super. 2015) (citations and internal citation

omitted). This Court must determine:

(1) whether the appeal is timely; (2) whether [the defendant] preserved [the] issue; (3) whether [the defendant’s] brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code.

Commonwealth v. Edwards, 71 A.3d 323, 329–330 (Pa. Super. 2013)

(citation omitted). Only where an appellant has met all four elements of the

test will we review a challenge to the discretionary aspects of sentence. An

additional requirement for review of such a claim is that “issues 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

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proceedings. Absent such efforts, an objection to a discretionary aspect of a

sentence is waived.” Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.

Super. 2013) (en banc) (citation omitted).

As noted above, Ayala timely appealed. His brief includes a Pa.R.A.P.

2119(f) concise statement. See Anders Brief at 16. Regarding a substantial

question, Ayala asserts the violation-of-probation court considered

impermissible factors at sentencing, resulting in an excessive sentence. See

id. at 17. Specifically, Ayala claims the court inappropriately considered

statements from the Commonwealth regarding the plea negotiations in the

underlying case and about Ayala’s prior conviction in another county. See id.

at 20. This claim presents a substantial question. See Commonwealth v.

Allen, 24 A.3d 1058, 1064-65 (Pa. Super. 2011) (“[A] claim that a sentence

is excessive because the trial court relied on an impermissible factor raises a

substantial question.”). Finally, an appellant waives a challenge to the

discretionary aspects of sentence not raised in a post-sentence motion and

may not raise it for the first time on appeal. See Commonwealth v.

Bradley, 237 A.3d 1131, 1138-39 (Pa. Super. 2020) (claim waived where not

specifically raised in post-sentence motion); see also Pa.R.A.P. 302(a).

Although Ayala filed a timely post-sentence motion, he argued only that

the Commonwealth incorrectly claimed he was in violation of his probation by

being in contact with the victim’s mother when his plea agreement allowed for

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such contact; he did not assert the trial court’s reliance on an impermissible

sentencing factor. See Post-Sentence Motion, 5/24/23, at 3 (unnumbered).

An appellant waives a challenge to the discretionary aspects of sentence

not raised in a post-sentence motion and may not raise it for the first time on

appeal. See Bradley, 237 A.3d at 1138-39 (claim waived where not

specifically raised in post-sentence motion); see also Pa.R.A.P. 302(a). Here,

because Ayala did not raise the specific “impermissible factor” challenge he

raises in the instant appeal in his post-sentence motion, he waived it,

precluding review.

Even if Ayala had preserved his issue, however, it would be frivolous.

Our standard of review of a discretionary sentencing claim is well-established:

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. Bankes, 286 A.3d 1302, 1307 (Pa. Super. 2022) (citation

omitted).

Upon revoking probation, a sentencing court may choose from any of

the sentencing options that existed at the time of the original sentencing,

including incarceration. See 42 Pa.C.S.A. § 9771(b). “[U]pon revocation [of

probation] . . . the trial court is limited only by the maximum sentence that it

could have imposed originally at the time of the probationary sentence.”

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Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. Super. 2013) (internal

quotation marks and citations omitted). However, 42 Pa.C.S.A. § 9771(c)

provides that once probation has been revoked, a sentence of total

confinement may only be imposed if any of the following conditions exist:

(1) the defendant has been convicted of another crime; or

(2) the conduct of the defendant indicates that it is likely that he will commit another crime if he is not imprisoned; or

(3) such a sentence is essential to vindicate the authority of the court.

42 Pa.C.S.A. § 9771(c).

Here, the record demonstrates the court considered the testimony of

Officer Munoz and Agent Balatincz, Ayala’s admissions and statement, and the

arguments of counsel in imposing Ayala’s sentence. See N.T., 5/18/23, at

10. Despite being on probation for two months, Ayala used drugs and alcohol,

downloaded pornography to his phone, and remained in contact with the

mother of the victim, all violations of the conditions of his probation. Thus, a

sentence to total confinement was necessary to vindicate the authority of the

court. While the Commonwealth referenced the underlying plea negotiations

and Ayala’s prior conviction in another county, the violation-of-probation court

never mentioned them in sentencing, and we see nothing of record to support

Ayala’s claim the court relied upon those statements in imposing the sentence

requested by Officer Munoz. See id. at 3, 5-6, 10-11. Thus, even if not

waived, Ayala’s discretionary aspects of sentence claim would not merit relief.

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See, e.g., Commonwealth v. Raven, 97 A.3d 1244, 1254-55 (Pa. Super.

2014) (defendant’s sentences were neither unreasonable nor excessive where

“record reflects that the [sentencing] court carefully considered all of the

evidence presented at the sentencing hearing.”).

Finally, our independent review of the record reveals no arguably

meritorious issues Ayala could raise on appeal. See Dempster, 187 A.3d at

272. Accordingly, we grant Counsel’s application to withdraw and affirm

Ayala’s judgment of sentence.

Application to withdraw from representation granted. Judgment of

sentence affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 5/31/2024

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