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[U] Commonwealth v. Martinez

Superior Court of Pennsylvania

March 3, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
ELI SAMUEL MARTINEZ Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence January 7, 2013 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0000015-2012

BEFORE: BENDER, P.J., PANELLA, J., and MUSMANNO, J.

MEMORANDUM

PANELLA, J.

Appellant, Eli Samuel Martinez, appeals from the judgment of sentence entered January 7, 2013, by the Honorable Jeffery D. Wright, Court of Common Pleas of Lancaster County. We affirm.

On September 12, 2012, Martinez entered an open guilty plea to delivery of a non-controlled substance[1] and criminal conspiracy.[2] Following a review of a pre-sentence investigation report ("PSI"), the trial court sentenced Martinez on January 7, 2013, to two concurrent sentences of 14 to 48 months' incarceration. Thereafter, Martinez filed a motion for modification of sentence, which the trial court denied on January 24, 2013. This timely appeal followed.

On appeal, Martinez argues that the trial court erred in imposing a manifestly excessive sentence and in failing to take into consideration mitigating factors presented by counsel at sentencing. Appellant's Brief at 8. These claims constitute a challenge to the discretionary aspects of Martinez's sentence.

A challenge to the discretionary aspects of a sentence must be considered a petition for permission to appeal, as the right to pursue such a claim is not absolute." Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.Super. 2004), appeal denied, 580 Pa. 695, 860 A.2d 122 (2004) (citation omitted). When challenging the discretionary aspects of the sentence imposed, an appellant must present a substantial question as to the inappropriateness of the sentence. See Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa.Super. 2005). "Two requirements must be met before we will review this challenge on its merits." McAfee, 849 A.2d at 274. "First, an appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence." Id. "Second, the appellant must show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code." Id. That is, "the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process." Tirado, 870 A.2d at 365. We examine an appellant's Rule 2119(f) statement to determine whether a substantial question exists.[3] See id. "Our 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." Id.

In the present case, Martinez's appellate brief contains the requisite 2119(f) concise statement, and, as such, is in technical compliance with the requirements to challenge the discretionary aspects of a sentence. Martinez argues in his 2119(f) statement that his sentence was "manifestly excessive such that it constitutes too severe a punishment" and that the trial court "failed to properly take into consideration mitigating factors presented by counsel at sentencing[.]" Appellant's Brief at 8.

Martinez's claim that his sentence was excessive because the trial court failed to consider mitigating factors which were of record does not raise a substantial question for our review. See Commonwealth v. Dodge, __ A.3d __, 2013 WL 4829286 at *5 n.8 (filed Sept. 11, 2013) ("Careful litigants should note that arguments that the sentencing court failed to consider the factors proffered in 42 Pa.Cons.Stat.Ann. § 9721 does present a substantial question whereas a statement that the court failed to consider facts of record, though necessarily encompassing the factors of § 9721, has been rejected."). To the extent Martinez argues that the trial court imposed an excessive and unreasonable sentence, this similarly fails to raise a substantial question. See Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa.Super. 2012) ("[A] bald assertion that a sentence is excessive does not by itself raise a substantial question justifying this Court's review of the merits of the underlying claim."), appeal denied, 62 A.3d 378 (Pa. 2013); Commonwealth v. Bromley, 862 A.2d 598, 604 (Pa.Super. 2004) (defendant did not raise substantial question by merely asserting sentence was excessive when he failed to reference any section of Sentencing Code potentially violated by sentence).

Martinez admits in his brief that the trial court imposed a standard range sentence. Appellant's Brief at 11. "[W]here a sentence is within the standard range of the guidelines, Pennsylvania law views the sentence as appropriate under the Sentencing Code." Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super. 2010) (internal citations omitted). Moreover, where, as here, the trial court has the benefit of a pre-sentence investigation report, "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." Id. at 171 (internal citations omitted). Therefore, we find no abuse of discretion in the trial court's imposition of sentence.

Judgment of sentence affirmed.

Judgment Entered.


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