Com. v. Garay J.

• Court: Superior Court of Pennsylvania
• Decided: August 1, 2023
• Docket: 3126 EDA 2022
• Status: Unpublished

Opinion

J-S18012-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JESUS GARAY : : Appellant : No. 3126 EDA 2022

Appeal from the Judgment of Sentence Entered November 18, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002253-2015

BEFORE: PANELLA, P.J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.: FILED AUGUST 1, 2023

Jesus Garay appeals the judgment of sentence entered by the

Philadelphia Court of Common Pleas on November 18, 2022, for resentencing

of his burglary after the court found that he had violated the conditions of his

probation for the second time. Garay claims the trial court failed to state on

the record the reasons for the sentence and abused its discretion by imposing

an excessive sentence. We find the claims without merit and affirm.

For purposes of this appeal, the facts and procedural history are not

contested. On January 22, 2015, police arrested Garay after they witnessed

him running out the back door of a home from which he was stealing personal

property. See N.T. 6/4/2015, pg 5-6. On June 4, 2015, Garay entered a

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* Former Justice specially assigned to the Superior Court. J-S18012-23

negotiated guilty plea for Burglary of an Overnight Accommodation with a

Person Present and was sentenced to a maximum of four years of probation.

See CP-51-CR-0002253-2015, Order – Negotiated Guilty Plea, 6/4/2015.

On September 19, 2018, Garay entered into another negotiated guilty

plea for Possession With Intent to Manufacture or Deliver (hereinafter “PWID”)

for which he was sentenced to three years of probation. See CP-51-CR-

0002858-2018, Order – Violation of Probation, 9/19/2018. The court found

this conviction to be a violation of the terms of his burglary probation, and re-

sentenced Garay to an additional three years’ probation for the burglary

conviction to run concurrently with his PWID probation. See Id.

On August 19, 2022, Garay entered yet another negotiated guilty plea,

this time for Possession of a Firearm by a Person Prohibited after he was

arrested for brandishing a firearm and shooting multiple rounds inside his

home during an altercation with his girlfriend. See N.T. 11/18/2022, at 7. For

this plea, Garay was sentenced to 11 1/2 to 23 months of confinement and

three years of probation. See id.

On November 18, 2022, the trial court determined that Garay’s

conviction for Possession of a Firearm by a Person Prohibited was a violation

of the conditions of his burglary probation. Based on this violation, the court

re-sentenced Garay to serve 10 to 20 years’ incarceration for the burglary

conviction. See 51-CR-0002253-2015, Order – Negotiated Guilty Plea,

11/18/2022. Additionally, the court re-sentenced Garay to two and one-half

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to five years’ probation for the PWID conviction, with the sentences to run

concurrently. See id. Garay filed a Motion for Reconsideration of Sentence

which the trial court denied. On December 6, 2022, Garay filed this appeal.

On appeal, Garay argues the court abused its discretion by failing to

state reasons on the record for the sentence imposed, and further, that the

sentence imposed was excessive. Garay concedes these issues constitute

challenges to the discretionary aspects of his sentence. See Appellant’s Brief,

at 5-6.

This court will not disturb a trial court’s sentence unless the trial court

abused its discretion by exercising judgment that was “manifestly

unreasonable, or the result of partiality, bias, or ill-will.” Commonwealth v.

Pollard, 832 A.2d 517, 525 (Pa. Super. 2003). Section 9721(b) of the

Pennsylvania Sentencing Code sets forth “the general principle 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.A. § 9721. However, “[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).

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To invoke this Court’s jurisdiction over this issue, Garay must satisfy a

four-part test:

(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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation

omitted; brackets in original).

Here, Garay preserved his issues through a timely post-sentence motion

to modify his sentence and filed a timely appeal. Further, counsel has included

the required Rule 2119(f) statement. We therefore review the Rule 2119(f)

statement to determine if Garay has raised a substantial question.

We must examine Garay’s Rule 2119(f) statement to determine whether

a substantial question exists. See Commonwealth v. Tirado, 870 A.2d 362,

365 (Pa. Super. 2005). “Our 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 and emphasis

omitted); see also Pa.R.A.P. 2119(f).

Garay “must show that there is a substantial question that the sentence

imposed is not appropriate under the Sentencing Code.” McAfee, 849 A.2d at

274 (citation omitted). That is, “the sentence violates either a specific

provision of the sentencing scheme set forth in the Sentencing Code or a

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particular fundamental norm underlying the sentencing process.” Tirado, 870

A.2d at 365. “Additionally, we cannot look beyond the statement of questions

presented and the prefatory 2119(f) statement to determine whether a

substantial question exists.” Commonwealth v. Provenzano, 50 A.3d 148,

154 (Pa. Super. 2012).

In his first challenge, Garay argues the court violated the Sentencing

Code by failing to state the reasons for the sentence of confinement on the

record. This claim raises a substantial question. See Commonwealth v.

Goggins, 748 A.2d 721, 728 (Pa. Super. 2000). Next, Garay asserts that the

court erred by focusing solely on the seriousness of the offense without

considering all other relevant factors. This also raises a substantial question.

See Commonwealth v. Macias, 968 A.2d 773, 776 (Pa. Super. 2009). We

therefore turn to the merits of Garay’s claims.

Section 9721(b) of the Sentencing Code requires the court imposing the

sentence or resentence following revocation of probation “make as a part of

the record, and disclose in open court at the time of sentencing, a statement

of the reason or reasons for the sentence imposed.” 42 Pa.C.S.A. § 9721(b).

Similarly, the Pennsylvania Rules of Criminal Procedure require that “[t]he

judge … state on the record the reasons for the sentence imposed.” Pa. R.

Crim. P. 708(d)(2). However, the court is not required to “undertake a lengthy

discourse for its reasons for imposing a sentence” as long as the record as a

whole “reflects the sentencing court’s consideration of the facts of the crime

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and the character of the offender.” Commonwealth v. Colon, 102 A.3d.

1033, 1044 (Pa. Super. 2014).

Garay argues the trial court failed to state on the record its reason for

the sentence. However, the record reflects the trial court did state its reasons

for imposing the sentence at the hearing. At the hearing, Garay’s counsel

argued the court should be lenient on Garay’s probation violation because he

had already served time for the firearm conviction, had taken responsibility

for the actions, and had matured since that time: “He pled guilty to the crimes

concerning, what has created the direct violation, Your Honor. And he has

accepted his responsibility in that regard. He’s been in custody for 26 months,

Your Honor.” N.T., 11/18/22 at 5. The trial court responded:

Well he accepted responsibility probably because the Commonwealth was ready in the room. And he did it in front of a different judge, in which the allegations are that he had a verbal altercation with his girlfriend at his house, brandished a firearm, and shot multiple rounds. There is a gun violence epidemic in this city. And this is beyond what’s acceptable to this Court.

N.T., 11/18/22 pg. 7.

The court continued to explain the reason for its sentencing:

You are in direct violation. I ordered a PSI to see if there was any possible redeeming situation here in which the Court could give you a break.

There is not. You’ve decided to violate my probation. You are on supervision for two different cases. You were given a break on a burglary matter, and yet you decided to have a gun, argue, and shoot that firearm inside your home. Unbelievable.

Id. at 8.

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Moreover, when originally sentenced to probation for the burglary

offense in 2015, the sentencing judge warned Garay to take the probation

seriously: “If you violate probation – take it seriously. You’re young. You don’t

need this.” N.T., 6/4/15 at 7. Since then, Garay has directly violated probation

twice and, after only receiving more probation after the first violation, the

court decided Garay could no longer be given “a break.” N.T., 11/18/22 pg. 8.

The trial court particularly weighed the nature of the probation violation,

possessing and firing an illegal weapon, and Garay’s contribution to the “gun

violence epidemic” in Philadelphia.

Garay argues the court’s imposition of a sentence based on the broader

epidemic was an act of retribution rather than a sentence designed to reform

and rehabilitate Garay. We find this argument without merit. The Sentencing

Code directs the courts to consider the “protection of the public” and the

“impact…on the community.” 42 Pa.C.S.A. § 9721. The trial court’s reference

to the gun violence epidemic weighed the impact of Garay’s actions in the

context of an issue facing the community. Furthermore, the record indicates

the court considered Garay’s rehabilitation needs by recognizing the “break”

he received in prior sentencings and his repeated probation violations. N.T.,

11/18/22 at 8. The court explained the sentence is intended to rehabilitate

Garay by deterring him from continuing to engage in similar behavior: “when

you get out, stay away from guns.” Id. at 9.

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In its brief, Garay contrasts the record in this matter from that in

Commonwealth v. Macias where the Macias was convicted of third-degree

murder and was sentenced to 20 to 40 years’ incarceration. Commonwealth

v. Macias, 968 A.2d 773 (Pa. Super. 2009). Garay argues his case lacks the

degree of noted and cited reasons for sentencing that were apparent in the

record in Macias and therefore, the record is insufficient to uphold the

sentence. However, we do not find Macias to be particularly applicable to the

matter before this court. Macias was appealing the original sentencing of a

third-degree murder conviction whereas Garay is appealing a resentencing

after he was found to have violated the terms of his probation a second time.

Although the court in Macias may have more thoroughly stated its reasoning

for sentencing, we find the statements in the record here are sufficient to

uphold the sentence imposed.

Additionally, Garay argues that the sentence imposed is unreasonably

excessive. When imposing a sentence following a violation of probation, “the

sentencing alternatives available to the court shall be the same as were

available at the time of initial sentencing, due consideration being given to the

time spent serving the order of probation.” 42 Pa.C.S. § 9771(b).

Pennsylvania’s Supreme Court has held “the trial court is limited only by the

maximum sentence that it could have imposed originally at the time of the

probation.” Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014).

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Garay focuses on the court’s statement regarding a “gun violence

epidemic” in Philadelphia to support his contention that the court only

considered the seriousness of his crime. However, we note that the trial court

reviewed a PSI report. Where the trial court had the benefit of reviewing a

pre-sentence report, we must:

presume[] that he or she was aware of the relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors. Additionally, the sentencing court must state its reasons for the sentence on the record. The sentencing judge can satisfy the requirement that reasons for imposing sentence be placed on the record by indicating that he or she has been informed by the pre- sentencing report; thus properly considering and weighing all relevant factors.

Commonwealth v. Akhmedov, 216 A.3d 307, 329 (Pa. Super. 2019),

appeal denied, 224 A.3d 364 (Pa. 2020) (en banc) (citation omitted).

Furthermore, the trial court mentioned not only Garay’s inability to take

advantage of his prior probations to rehabilitate himself, but also the impact

his most recent crime had on the safety of the public. Under these

circumstances, we cannot conclude that the court imposed an excessive

sentence or failed to consider circumstances other than the seriousness of the

crime.

Since neither of Garay’s challenges to the discretionary aspects of his

sentence merit relief, we affirm.

Judgement of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/1/2023

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