Com. v. Romero, J.

Superior Court of Pennsylvania

Com. v. Romero, J.

DecidedApril 25, 2023

Docket1132 MDA 2022

StatusUnpublished

This text of Com. v. Romero, J. (Com. v. Romero, J.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Com. v. Romero, J., (Pa. Ct. App. 2023).

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Opinion

J-S02001-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JONATHAN ROMERO : : Appellant : No. 1132 MDA 2022

Appeal from the Judgment of Sentence Entered May 19, 2022 In the Court of Common Pleas of Huntingdon County Criminal Division at No(s): CP-31-CR-0000144-2021

BEFORE: PANELLA, P.J., OLSON, J., and DUBOW, J.

MEMORANDUM BY PANELLA, P.J.: FILED APRIL 25, 2023

Jonathan Romero appeals from the judgment of sentence entered in the

Huntingdon County Court of Common Pleas after Romero was convicted of

possession of methamphetamine and possession of brass knuckles. On

appeal, Romero only argues the trial court abused its discretion by imposing

an excessive sentence. We affirm.

Romero was staying with some friends at a hotel and had several

asthma attacks. During each attack, Romero’s friends would call 911

requesting medical assistance. Emergency medical technicians responded

each time. After the first two calls, Romero refused to be taken to the local

hospital, and instead requested on-the-scene treatment with an albuterol

inhaler. J-S02001-23

After the third call, however, the EMTs informed him that they could not

administer a third dose of albuterol and that policy required that Romero be

taken to the hospital for observation. The EMT alleged that Romero possessed

a baseball bat and a pocketknife, so he requested police assistance in dealing

with Romero’s refusal to go to the hospital.

Before the police arrived, however, the EMT was able to get Romero to

surrender the bat and accompany him to the hospital in an ambulance. While

en route to the hospital, the EMT contacted police dispatch to alert officers

that Romero was no longer at the hotel and requested that the police instead

respond to the hospital.

An officer was present as the ambulance arrived at the hospital. Given

the EMT’s statements and the hospital’s policy forbidding the possession of

weapons, the officer performed a pat-down search of Romero. The search

revealed several other weapons including a set of brass knuckles, as well as a

small glassine bag of crystal methamphetamine and a similar bag containing

five fentanyl pills.

The Commonwealth charged Romero with one count of possession of

methamphetamine, one count of possession of fentanyl with the intent to

distribute, and one count of possession of a prohibited weapon (brass

knuckles). A jury convicted Romero on the charges of possessing the

methamphetamine and the brass knuckles but acquitted him of possessing

the fentanyl with the intent to distribute.

-2- J-S02001-23

The trial court sentenced Romero to an aggregate sentence of three to

six years in prison. The court subsequently denied Romero’s post-sentence

motion, and this timely appeal followed.

Romero’s sole issue on appeal is a claim the trial court abused its

discretion in imposing sentence. See Appellant’s Brief, at 8.1 “The right to

appellate review of the discretionary aspects of a sentence is not absolute,

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

v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014). To challenge the

discretionary aspect of a sentence, an appellant must invoke this Court’s

jurisdiction by satisfying 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).

See Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011).

____________________________________________

1 We note that Romero’s brief does not comply with our Rules of Appellate Procedure. Rule 2119(f) requires an appellant who raises a challenge to the discretionary aspects of his sentence to “set forth in a separate section of the brief a concise statement of the reasons relied upon for allowance of appeal …”. While Romero has a section titled “Concise Statement of the Reasons to Allow an Appeal to Challenge the Discretionary Aspects of Sentence,” there is no separate section entitled “Argument.” However, we decline to find Romero’s challenge waived as the Commonwealth did not object and our review of whether he has raised a substantial question is not hindered by this violation.

-3- J-S02001-23

Romero filed a timely notice of appeal. He also preserved his challenge

to the discretionary aspects of his sentence in his post-sentence motion. And

while his brief is defective, the defect is not fatal to our review. We therefore

must determine whether Romero has raised a substantial question.

To raise a substantial question, Romero must advance a colorable

argument that the court’s sentencing was 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. Caldwell,

117 A.3d 763, 768 (Pa. Super. 2015) (citations omitted). Without a

substantial question, Romero cannot establish this Court’s jurisdiction to

review his claim. See Allen, 24 A.3d at 1064.

Here, Romero contends, among other allegations, that the sentence

imposed was “highly excessive and well beyond the Sentencing Guidelines …

[and] considered factors that were not proved at trial.” Appellant’s Brief, at 9.

This claim raises a substantial question. See Commonwealth v. Eby, 784

A.2d 204, 206 (Pa. Super. 2001). We further note that there is no dispute that

Romero was sentenced entirely outside the guidelines for the prohibited

weapon conviction. See Commonwealth’s Brief, at 8; Trial Court Opinion,

6/29/22, at 7.

Even if a substantial question is raised, the sentence will only be

overturned if the record establishes the trial court abused its discretion by

“ignor[ing] or misapply[ing] the law, exercis[ing] its judgment for reasons of

-4- J-S02001-23

partiality, prejudice, bias or ill will, or arriv[ing] at a manifestly unreasonable

decision.” Commonwealth v. Mouzon, 828 A. 2d 1126, 1128 (Pa. Super.

2003). “[G]reat weight [is given] to the sentencing court’s discretion, as he

or she is in the best position to measure factors such as the nature of the

crime, the defendant’s character, and the defendant’s display of remorse,

defiance, or indifference.” Id. (citation omitted).

When imposing sentence, “the trial court is required to consider the

particular circumstances of the offense and the character of the defendant,”

including reference to the “defendant’s prior criminal record, age, personal

characteristics, and potential for rehabilitation.” Commonwealth v. Fowler,

893 A.2d 758, 766 (Pa.Super. 2006). The sentencing guidelines are not

mandatory and courts do not have a duty to impose sentences within their

bounds. See Commonwealth v.

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