Com. v. Ugarte, D.

• Court: Superior Court of Pennsylvania
• Decided: July 26, 2017
• Docket: Com. v. Ugarte, D. No. 51 MDA 2017
• Status: Unpublished

Opinion

J-S41038-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. J-S41038-17

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).

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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

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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

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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

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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

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“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

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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.

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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

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