Com. v. Ugarte, D.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

Appellee :

:

v. :

:

DAVID UGARTE :

:

Appellant : No. 51 MDA 2017

Appeal from the Judgment of Sentence December 7, 2016 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0002238-2004

BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.* MEMORANDUM BY GANTMAN, P.J.: FILED JULY 26, 2017 Appellant, David Ugarte, appeals from the judgment of sentence entered in the Lackawanna County Court of Common Pleas, following the revocation of his probation. We affirm.

In its opinion, the trial court fully and correctly sets forth the relevant facts and procedurally history of this case. Therefore, we have no need to restate them. We add Appellant timely filed a notice of appeal on December 27, 2016. The court ordered Appellant, on January 3, 2017, to file a concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b); Appellant timely complied on January 12, 2017.

Appellant raises three issues for our review:

WHETHER THE GAGNON COURT VIOLATED PA.R.CRIM.P.

700 WHEN APPELLANT WAS SENTENCED ON HIS GAGNON VIOLATION BY THE HONORABLE MICHAEL

_____________________________

*Retired Senior Judge assigned to the Superior Court.

BARRASSE SINCE HE ORIGINALLY PLED GUILTY BEFORE AND WAS SENTENCED BY THE HONORABLE VITO GEROULO?[1]

WHETHER THE [TRIAL] COURT FAILED TO ARTICULATE REASONS, OR SUFFICIENT REASONS, FOR THE SENTENCE IMPOSED?

WHETHER THE [TRIAL] COURT ABUSED ITS DISCRETION BY IMPOSING A HARSH AND EXCESSIVE SENTENCE WHEN IT SENTENCED [APPELLANT] TO INCARCERATION OF ONE (1) TO TWO (2) YEARS AT A STATE CORRECTIONAL FACILITY?

(Appellant’s Brief at 4).

Challenges to the discretionary aspects of sentencing do not entitle an appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary sentencing issue:

[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).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

Objections to the discretionary aspects of a sentence are generally waived if

____________________________________________

1 Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

3

they are not raised at the sentencing hearing or raised in a motion to modify the sentence imposed at that hearing. Commonwealth v. Mann, 820 A.2d 788 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003). See also Commonwealth v. May, 584 Pa. 640, 887 A.2d 750 (2005), cert. denied, 549 U.S. 832, 127 S.Ct. 58, 166 L.Ed.2d 54 (2006) (reiterating absence of specific and contemporaneous objection waives issue on appeal).

When appealing the discretionary aspects of a sentence, an appellant must invoke the appellate court’s jurisdiction by including in his brief a separate concise statement demonstrating a substantial question as to the appropriateness of the sentence under the Sentencing Code. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f). The concise statement must indicate “where the sentence falls in relation to the sentencing guidelines and what particular provision of the code it violates.” Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa.Super. 2004) (quoting Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa.Super. 2000), appeal denied, 563 Pa. 672, 759 A.2d 920 (2000)). The statement must also specify “what fundamental norm the sentence violates and the manner in which it violates that norm.” Kiesel, supra at 532.

“The determination of what constitutes a substantial question must be evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830 A.2d 1013, 1018 (Pa.Super. 2003). A substantial question exists “only when the appellant advances a colorable argument that the sentencing judge’s

4

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.” Sierra, supra at 912-13 (quoting Commonwealth v. Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001)). A claim that a sentence is manifestly excessive might raise a substantial question if the appellant’s Rule 2119(f) statement sufficiently articulates the manner in which the sentence imposed violates a specific provision of the Sentencing Code or the norms underlying the sentencing process. Mouzon, supra at 435, 812 A.2d at 627. A claim that a sentence is manifestly excessive might raise a substantial question if the appellant’s Rule 2119(f) statement sufficiently articulates the manner in which the sentence imposed violates a specific provision of the Sentencing Code or the norms underlying the sentencing process. Mouzon, supra at 435, 812 A.2d at 627. “An allegation that a judge ‘failed to offer specific reasons for [a] sentence does raise a substantial question.’” Commonwealth v. Dunphy, 20 A.3d 1215, 1222 (Pa.Super. 2011) (quoting Commonwealth v. Reynolds, 835 A.2d 720, 734 (Pa.Super. 2003)).

“In every case in which the court imposes a sentence for a felony or misdemeanor…the court shall 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). “Nevertheless, a

5

lengthy discourse on the trial court’s sentencing philosophy is not required. Rather, the record as a whole must reflect the court’s reasons and its meaningful consideration of the facts of the crime and the character of the offender.” Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa.Super. 2006) (internal citations omitted).

“In general, the imposition of sentence following the revocation of probation is vested within the sound discretion of the trial court, which, absent an abuse of that discretion, will not be disturbed on appeal.” Commonwealth v. Hoover, 909 A.2d 321, 322 (Pa.Super. 2006). Revocation of intermediate punishment is treated similarly to revocation of probation for purposes of appellate review. See Commonwealth v. Philipp, 709 A.2d 920 (Pa.Super. 1998). In either case, the trial court “possesses the same sentencing alternatives that it had at the time of initial sentencing.” Id. at 921. Following revocation of probation, the court may impose a sentence of total confinement if any of the following conditions exist: the defendant has been convicted of another crime; the conduct of the defendant indicates it is likely he will commit another crime if he is not imprisoned; or, such a sentence is essential to vindicate the authority of the court. See 42 Pa.C.S.A. § 9771(c).

Pa.R.Crim.P. 700 provides in relevant part as follows:

Rule 700. Sentencing Judge

(A) Except as provided in paragraph (B), the judge who presided at the trial or who received the plea of guilty or

6

nolo contendere shall impose sentence unless there are extraordinary circumstances which preclude the judge’s presence. In such event, another judge shall be assigned to impose sentence.

(B) A court may provide by local rule that sentence on a plea of guilty or nolo contendere may be imposed by a judge other than the judge who received a plea of guilty or nolo contendere. In such event, the defendant must be so notified at the time of entering the plea.

Comment: Generally, the president judge makes assignment of judges. However, in one-judge judicial districts, or in instances in which the president judge is the one whose presence at sentencing is precluded, an appropriate assigning authority, such as the Supreme Court or the Court Administrator of Pennsylvania, should assign a new judge.

It is always desirable that the judge who accepts a plea of guilty or nolo contendere should impose sentence. It is recognized, however, that the rotation practices of many courts make it difficult in many instances for the same judge to sit in both capacities. For that reason, paragraph (B) provides that a court may set up an alternate procedure by local rule. In any event, the judge who imposes the sentence should ascertain the facts concerning the plea and the offense. See ABA Standards on Sentencing Alternatives and Procedures Section 5.1.

Pa.R.Crim.P. 700. Generally, no rule of procedure or case law specifically prohibits a judge from assuming control over a probation case where the original sentence was imposed by another jurist; absent extraordinary circumstances, only the consent of the parties should permit such a maneuver. Commonwealth v. McNeal, 120 A.3d 313, 323 (Pa.Super. 2015) (holding appellant was entitled to re-sentencing, where no

7

“extraordinary circumstances” supported transfer of probation revocation sentencing authority from original judge, who received appellant’s guilty plea, to another judge for sentencing upon revocation of probation).

As a prefatory matter, Appellant’s motion for reconsideration of sentence did not include the claims he raises on appeal; rather, it baldly asserted that the “sentence imposed [is] harsh and excessive,” without further elaboration. (See Motion for Reconsideration of Sentence, filed 12/8/16, at 2, unpaginated.) Appellant also failed to raise at the revocation/sentencing hearing his claims regarding: (1) the court’s failure to recite on the record its reason for the sentence; and (2) the excessiveness of Appellant’s sentence. On this basis, Appellant’s claims are arguably waived. See Mann, supra.

Additionally, Appellant failed to meet the minimal requirements of Rule 2119(f). The Rule 2119(f) statement in Appellant’s brief merely recites authority relevant to a challenge to discretionary aspects of sentencing and Pa.R.Crim.P. 700; Appellant’s statement fails to articulate what fundamental norm of sentencing was violated or to indicate how his sentence violates that norm. See Kiesel, supra. Because Appellant failed to include his claims in full in his post-sentence motion, and his Rule 2119(f) statement is inadequate, Appellant has waived his challenges to the discretionary aspects of his sentence. See Mann, supra; Mouzon, supra. See also Commonwealth v. Cannon, 954 A.2d 1222 (Pa.Super. 2008) (reiterating

8

inadequate Rule 2119(f) statement constitutes failure to raise substantial question as to discretionary aspects of sentence).

Moreover, even if Appellant had properly preserved his claims, he would not be entitled to relief. (See Trial Court Opinion, filed 3/1/17, at 6- 14) (finding: (1) in April 2009, court revoked Appellant’s original probationary term and resentenced Appellant to 24 to 60 months’ incarceration, plus 2 years’ special probation; same court entered judgment of sentence from which Appellant currently appeals; during 2009 revocation proceedings, Appellant did not raise Rule 700 objection at that time or appeal his sentence; upon second revocation, Appellant appeared before same jurist who sentenced Appellant in 2009; therefore, Appellant cannot now raise Rule 700 challenge to 2009 court’s authority to resentence Appellant in 2016, absent objection from either party; Appellant’s Rule 700 challenge to his 2009 sentence, raised seven years later, is waived; 2 (2-3) Appellant’s challenges to discretionary aspects of sentence likewise fail; record is replete with information regarding Appellant’s character and history; Appellant violated terms of his supervision when he absconded from supervision for over three years; Appellant’s violation is reason for revocation and sentence; additionally, prior to sentencing, court reviewed

memorandum and recommendation from Lackawanna County Adult

____________________________________________

2 We agree that Appellant’s Rule 700 claim is waived as presented and that McNeal is procedurally distinguishable.

9

Probation and Parole Department; court considered circumstances of violation, length of time Appellant had absconded, and Appellant’s character; court also considered that Appellant turned himself in; revocation court consulted sentencing guidelines and ultimately sentenced Appellant within guidelines; court observed circumstances of Appellant’s violation, impact of Appellant’s violation on safety of community, and need to deter Appellant and others from committing same violation; Appellant was aware of but disregarded terms of his supervision; Appellant’s conduct indicated Appellant was unlikely to comply with terms of probation). The record supports the court’s rationale. Therefore, even if Appellant had properly preserved his issues, we would affirm on the basis of the trial court opinion. See generally In re K.L.S., 594 Pa. 194, 197 n.3, 934 A.2d 1244, 1246 n.3 (2007) (stating where issues are waived on appeal, we should affirm).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/26/2017

Circulated 07/12/2017 12:28 PM