Com. v. Rodriguez, R.

• Court: Superior Court of Pennsylvania
• Decided: May 5, 2020
• Docket: 1450 MDA 2019
• Status: Unpublished

Opinion

J-S17005-20 J-S17006-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROBERT RODRIGUEZ : : Appellant : No. 1450 MDA 2019

Appeal from the Judgment of Sentence Entered July 11, 2019 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0001350-2018

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROBERT RODRIGUEZ : : Appellant : No. 1456 MDA 2019

Appeal from the Judgment of Sentence Entered July 11, 2019 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0001281-2018

BEFORE: PANELLA, P.J., STABILE, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, P.J.: FILED MAY 05, 2020

In these appeals,1 Robert Rodriguez challenges the judgment of

sentence entered in the Luzerne County Court of Common Pleas. He disputes

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1 With the exception of a short addition in 1456 MDA 2019 regarding the procedural history of that appeal, the Anders briefs in the two appeals are identical. Since the issues in both appeals concern the fact that the sentences J-S17005-20 J-S17006-20

the discretionary aspects of his sentence, arguing that the sentencing court

erred in imposing consecutive sentences and failed to consider his remorse as

a mitigating factor at sentencing. Counsel has filed a brief pursuant to Anders

v. California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009), and a motion to withdraw. We affirm and therefore grant

counsel’s petition to withdraw.

Rodriguez hired Lamont Garcia to tattoo his wrist. Dissatisfied with the

tattoo, Rodriguez shot Garcia and fled the location. Garcia survived the

shooting with nonfatal injuries.

Shortly thereafter, Rodriguez and a co-conspirator, Isaiah Jennings,

went to the home of Rodriguez’s former co-worker, Trevor Oliver. For reasons

unknown or unclear, Rodriguez and Jennings shot Oliver and his girlfriend,

Ingrid Batista. Oliver died a few days after the shooting. Batista suffered

nonfatal injuries.

Rodriguez was arrested and charged with the two unrelated shootings.

Pursuant to a plea agreement at docket number CP-40-CR-0001281-2018,

Rodriguez pled guilty to one count of aggravated assault. 2 Under the same

agreement, Rodriguez pled guilty at docket number CP-40-CR-0001350-2018

to one count of third-degree murder and one count of criminal conspiracy to

at the two dockets were run consecutively, we have consolidated the appeals sua sponte.

2 See 18 Pa. C.S.A. § 2702 (a)(4).

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commit aggravated assault.3 The trial court sentenced Rodriguez to 23 to 52

years’ imprisonment at docket 1350 and 21 months to 6 years’ imprisonment

at docket 1281. Each sentence was ordered to be served consecutively.

After sentencing, Rodriguez filed timely post-sentence motions, which

the trial court denied. Rodriguez then filed timely notices of appeal.4

Thereafter, counsel for Rodriguez filed an Anders brief. This appeal is now

properly before us.

Counsel has identified two issues of potential merit: (1) the sentencing

court abused its discretion in imposing consecutive sentences, and (2) the

court failed to consider Rodriguez’s acceptance of responsibility for his crimes

at sentencing. See Anders Brief, at 1.

Before addressing the merits of this issue, we must first turn to counsel’s

petition to withdraw to determine whether counsel has complied with the

procedures set forth in Anders. See Commonwealth v. Bennett, 124 A.3d

327, 330 (Pa. Super.2015).

Direct appeal counsel seeking to withdraw under Anders must file a petition averring that, after a conscientious examination of the record, counsel finds the appeal to be wholly frivolous. Counsel must also file an Anders brief setting forth issues that might

3 See 18 Pa.C.S.A. 2502 § (c); § 903 (a)(1); § 2702 (a)(1). 4 We note that Rodriguez filed two separate notices of appeal in compliance with our Supreme Court’s directive in Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) (requiring separate notices of appeal from an order resolving issues arising on more than one docket).

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arguably support the appeal along with any other issues necessary for the effective appellate presentation thereof…. Anders counsel must also provide a copy of the Anders petition and brief to the appellant, advising the appellant of the right to retain new counsel, proceed pro se or raise any additional points worthy of this Court’s attention.

Commonwealth v. Tukhi, 149 A.3d 881, 885-886 (Pa. Super. 2016)

(citation omitted).

The Anders brief is subject to particular requirements. Our Supreme

Court dictates that the brief must: provide a summary of the procedural

history and facts of the case, complete with citations to the record; refer to

any information in the record that counsel believes could arguably support the

appeal; present counsel’s conclusion that the appeal is frivolous; and state

counsel’s reasons for so concluding. See Santiago, 978 A.2d at 354. “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.”

Commonwealth v. Hankerson, 118 A.3d 415, 420 (Pa. Super. 2015)

If this Court determines that counsel’s petition and brief satisfy the

requirements of Anders, we will undertake an independent review of the

appeal to ascertain whether it is wholly frivolous. See Tukhi, 149 A.3d at 886.

If it is found to be frivolous, we will grant counsel’s petition to withdraw, and

affirm the judgment of sentence. See id.

Here, counsel has satisfied the procedural requirements discussed

above. Counsel’s brief complies with Anders/Santiago obligations. Counsel’s

petition certifies that he conducted a conscientious examination of the record,

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he was unable to discover any meritorious issues to raise on appeal, and he

has concluded the appeal is wholly frivolous. Counsel also sent a letter to

Rodriguez in which he advised Rodriguez that he may proceed with this appeal

pro se or retain private counsel to raise any additional issues he believes

should be brought to this Court’s attention. Finally, the letter states that

counsel enclosed a copy of the petition to withdraw and his Anders brief.

Rodriguez has not filed a reply. As we deem counsel compliant, we will now

undertake our own review to determine whether this appeal is indeed wholly

frivolous.

In his first issue, Rodriguez challenges the discretionary aspects of his

sentence, claiming the sentencing court abused its discretion in imposing

consecutive sentences rather than concurrent sentences. See Anders’s Brief,

at 6.

Our standard of review for a challenge to the discretionary aspects of

sentencing is as follows:

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. Hoch, 936 A.2d 515, 517-518 (Pa. Super. 2007) (citation

omitted).

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“Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Griffin, 65 A.3d 932,

935 (Pa. Super. 2013) (citation omitted). Before reaching the merits of a

discretionary aspects issue, this Court conducts a four-part test to determine:

(1) whether the appeal is timely; (2) whether Appellant preserved his or her issue; (3) whether Appellant'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. Williams, 198 A.3d 1181, 1186 (Pa. Super. 2018)

Here, Rodriguez filed a timely notice of appeal and preserved his issues

in a timely post-sentence motion. Rodriguez also included a Pa.R.A.P. 2119(f)

statement in his brief. Therefore, we must determine whether Rodriguez’s first

contention raises a substantial question.

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, 946 A.2d 103, 112 (Pa. Super. 2008) (citation omitted). In

determining whether a substantial question exists, “[o]ur 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.” Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super.

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2012). Additionally, we cannot look beyond the statement of questions

presented and the 2119(f) statement to ascertain whether a substantial

question exists. See id.

Generally, we have stated that a challenge to the imposition of

consecutive rather than concurrent sentences does not present a substantial

question. See Commonwealth v. Lloyd, 878 A.2d 867, 873 (Pa. Super.

2005). However, we have recognized that a sentence can be so excessive that

it may create a substantial question. See Commonwealth v. Moury, 992

A.2d 162, 171-172 (Pa. Super. 2010). In determining whether a substantial

question has been raised, our focus is on “whether the decision to sentence

consecutively raises the aggregate sentence to, what appears upon its face to

be, an excessive level in light of the criminal conduct in this case.”

Commonwealth v. Mastromarino, 2 A.3d 581, 585-586 (Pa. Super. 2010)

Rodriguez pleaded guilty to one count of aggravated assault, one count

of third-degree murder, and one count of criminal conspiracy to commit

aggravated assault. The trial court imposed an aggregate sentence of 24 years

to 58 years’ imprisonment. Although a 24-year minimum sentence may

appear harsh on the surface, it is not manifestly excessive in light of the crimes

Rodriguez committed. As such, Rodriguez’s first challenge does not raise a

substantial question. See Commonwealth v. Gonzalez-Dejusus, 994 A.2d

595, 599 (Pa. Super. 2010).

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Rodriguez’s remaining issue addresses the sentencing court’s failure to

consider mitigating factors in sentencing. Specifically, he asserts that the

sentencing court erred in failing to take account of his acceptance of

responsibility. See Ander’s Brief, at 8.

“[T]his Court has 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). Therefore, Rodriguez’s argument that the sentencing court failed to

adequately consider his remorse as a mitigating factor does not raise a

substantial question. See Commonwealth v. Downing, 990 A.2d 788, 794

(Pa. Super. 2010).

Rodriguez has not raised a substantial question and we cannot reach

the merits of his issues on appeal. Further, our independent review of the

record reveals no other meritorious issues. As a result, we grant counsel

permission to withdraw and affirm the judgment of sentence.

Judgments of sentence affirmed. Petition to withdraw as counsel

granted.

President Judge Emeritus Ford Elliott joins the memorandum.

Judge Stabile concurs in the result.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 05/05/2020

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