February 19, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
MIGUEL ANGEL CASTANON-AVILA, Appellant
Appeal from the Judgment of Sentence February 12, 2013 In the Court of Common Pleas of Lancaster County Criminal Division No(s).: CP-36-CR-0005503-2011
BEFORE: ALLEN, LAZARUS, and FITZGERALD, [*] JJ.
Appellant, Miguel Angel Castanono-Avila, appeals from the judgment of sentence entered in the Lancaster County Court of Common Pleas following his non-jury conviction of aggravated assault and simple assault.He alleges the sentencing court abused its discretion by imposing a manifestly excessive sentence. We affirm.
The trial court summarized the facts of this case as follows.
The victim[, Appellant's wife, ] suffered head trauma, a broken nose, an eardrum rupture and a broken sacrum. She was taken to the hospital by ambulance, stayed there four days, and then spent a month recuperating at a friend's house. (The friend Carolyn Mellinger is a person the victim calls Mom).
The incident occurred on November 6, 2011 and she had to use a walker when she left both the hospital and Ms. Mellinger's house, and then progressed to a cane until January of 2012.
She went back to work but was unable to perform her old job because of her injuries.
The victim best described her injuries at the sentencing hearing as follows:
On November 5th, 2011, I was getting read[y] for what I expected to be a great night. Never would have imagined my life was going to be changed in a couple of hours. The man who I deeply loved was to cruelly beat me to nearly death. I could not believe who was this monster hurting his wife, the mother of his daughters.
Trauma all over my body, bruises, blood, broken bones. Miguel, you nearly killed me.
* * *
Out of four days in the hospital, the only thing that was crystal clear was I did not want my daughters to see me in the hospital bed. . . .
* * *
And even after a whole month, coming home . . . was a challenge. My broken sacrum healed slowly, broken nose after treatment and surgery also healed, bruises are gone and the eardrum is healed but sensitive.
* * *
I have slowly healed and gained many of my abilities back. But it is usually what you cannot see what (sic) hurts the most. Like my brain trauma, I need to be in constant treatment to minimize the pain, to be able to think right.
The past year has been a living hell with my health, being in constant pain, not knowing if I will ever be normal again.
Trial Ct. Op., 6/20/13, at 2-3, 4 (unpaginated). Appellant was sentenced to four and one-half to ten years' imprisonment. Post-sentence motions were filed and denied. This timely appeal followed. Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal and the trial court filed a responsive opinion.
Appellant raises the following issue for our review:
Was the imposition of a sentence of [four and one half to ten] years incarceration, clearly unreasonable, so manifestly excessive as to constitute an abuse of discretion, and inconsistent with the protection of the public, the gravity of the offenses, and [Appellant's] rehabilitative needs?
Appellant's Brief at 4.
Appellant is challenging the discretionary aspect of his sentence.
It is well settled that, with regard to the discretionary aspects of sentencing, there is no automatic right to appeal.
This appeal is, therefore, more appropriately considered a petition for allowance of appeal. 42 Pa.C.S.A. § 9781(b). To reach the merits of a discretionary sentencing issue, we conduct a four-part analysis to determine: (1) whether appellant filed a timely notice of appeal, Pa.R.A.P. 902, 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, 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[.]
A substantial question will be found where an appellant advances a colorable argument that the sentence imposed is either inconsistent with a specific provision of the Sentencing Code or is contrary to the fundamental norms which underlie the sentencing process. At a minimum, the Rule 2119(f) statement must articulate what particular provision of the code is violated, what fundamental norms the sentence violates, and the manner in which it violates that norm.
Commonwealth v. Mastromarino, 2 A.3d 581, 585-86 (Pa.Super. 2010) (some citations omitted).
Instantly, Appellant's brief includes the necessary Rule 2119(f) statement. According to his Rule 2119(f) statement, his sentence is "manifestly excessive as to constitute an abuse of discretion. Even though the sentence was within the sentencing guidelines, an appellate court shall vacate such sentence and remand the case for resentencing if 'the case involves circumstances where the application of the guidelines would be clearly unreasonable.'" Appellant's Brief at 13 (citation omitted). He contends that given his "history and background and the mitigating circumstances of the offense itself, the application of the guidelines would be clearly unreasonable." Id. at 14. Additionally, Appellant avers "the trial court focused solely on the nature of the criminal conduct."  Id. at 15.
We find that Appellant's Rule 2119(f) statement presents a substantial question. "[A]n averment that the court sentenced based solely on the seriousness of the offense and failed to consider all relevant factors raises a substantial question." Commonwealth v. Bricker, 41 A.3d 872, 875 (Pa.Super. 2012). Therefore, we will review the merits of Appellant's challenge to the discretionary aspects of his sentence.
Appellant argues that based upon his history and background and mitigating factors, the application of the sentencing guidelines was unreasonable. Appellant's Brief at 18. He avers that the court focused solely on the seriousness of the crime and failed to consider mitigating factors, e.g., his show of remorse, law-abiding life, work history, and post-traumatic stress disorder. Id. at 18-29.
Our standard of review when an appellant challenges the discretionary aspects of his sentence is narrow:
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. An abuse of discretion is more than just an error in judgment and, on appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will.
More specifically, 42 Pa.C.S.A. § 9721(b) offers the following guidance to the trial court's sentencing determination:
[T]he 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.
Section 9781(c) specifically defines three instances in which the appellate courts should vacate a sentence and remand: (1) the sentencing court applied the guidelines erroneously; (2) the sentence falls within the guidelines, but is "clearly unreasonable" based on the circumstances of the case; and (3) the sentence falls outside of the guidelines and is "unreasonable." 42 Pa.C.S. § 9781(c). Under 42 Pa.C.S. § 9781(d), the appellate courts must review the record and consider the nature and circumstances of the offense, the sentencing court's observations of the defendant, the findings that formed the basis of the sentence, and the sentencing guidelines. The . . . weighing of factors under 42 Pa.C.S. § 9721(b) [is] exclusively for the sentencing court, and an appellate court could not substitute its own weighing of those factors. The primary consideration, therefore, is whether the court imposed an individualized sentence, and whether the sentence was nonetheless unreasonable for sentences falling outside the guidelines, or clearly unreasonable for sentences falling within the guidelines, pursuant to 42 Pa.C.S. § 9781(c).
Bricker, 41 A.3d at 875-76 (some citations omitted).
[W]here the sentencing court imposed a standard-range sentence with the benefit of a pre-sentence report, we will not consider the sentence excessive. In those circumstances, we can assume the sentencing court was aware of relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors. . . . Moreover, we can reverse a standard-range sentence only if the sentence is clearly unreasonable when viewed in light of the four statutory factors outlined in 42 Pa.C.S. § 9781(d). Section 9781(d) provides that when we review this type of question, we have regard for:
(1) The nature and circumstances of the offense and the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.
(3)The findings upon which the sentence was based.
(4)The guidelines promulgated by the commission.
Furthermore, "rejection of a sentencing court's imposition of sentence on unreasonableness grounds [should] occur infrequently, whether the sentence is above or below the guidelines ranges."
Commonwealth v. Corley, 31 A.3d 293, 298 (Pa.Super. 2011) (citations omitted).
Instantly, at the sentencing hearing the court stated:
. . . This is a pretty grizzly scene from the trial I heard.
And I honestly say I would not have expected this from someone like you. And I'm basing that on the presentence investigation which shows, at least while you were in the United States,  that you had basically done well.
You worked hard and you didn't get into trouble. You know, you didn't seem to have serious drug or alcohol problems or anything like that. . . .
* * *
And since everything in the presentence investigation for seven years in the United States seems good, I'll take you at your word that what you stated about your life in Cuba was also true.
. . . Someone like you, who was wrongfully put in jail in Cuba for just speaking your own mind, should know better than to do something like this. . . .
You suffered for something that you did nothing wrong for in Cuba, yet she suffered for nothing that she did wrong. I am very shocked that something like this occurred from someone like you.
. . . But the reality of it is, this is a standard range sentence, primarily because your wife made a good recovery. Otherwise, you'd be facing far more than you're going to be getting today.
N.T., 2/12/13, at 15-16.
A review of the record in the instant case demonstrates that the sentencing court imposed Appellant's sentence after considering the statutory requirements, pre-sentence report and circumstances of the offense. See Corley, 31 A.3d at 298. We discern no abuse of discretion. See Bricker, 41 A.3d at 875-76.
Judgment of sentence affirmed.