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Commonwealth v. Tavarez

Superior Court of Pennsylvania

October 31, 2017

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
CHEYENE TAVAREZ Appellant

         Appeal from the Judgment of Sentence October 7, 2016 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0006124-2015

          BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.

          OPINION

          MOULTON, J.

         Cheyene Tavarez appeals from the October 7, 2016 judgment of sentence entered in the Berks County Court of Common Pleas following his entry of a guilty plea to one count each of aggravated assault, burglary, robbery, impersonating a public servant, and conspiracy.[1] We vacate the judgment of sentence and remand for resentencing.

         At his guilty plea proceeding on October 7, 2016, Tavarez admitted to the following facts:

[O]n or about November 17th, 2015, shortly after 1:00 in the morning at 49 Mill Road in Oley Township, Berks County, Pennsylvania, you along with your accomplices and co-conspirators Edward Martinez, Brandon Smith, and Erick Green went to that residence; the plan even before you arrived at the residence was to rob the people there; you believed that there were illegal drugs and money[] there to be gained; all four of you agreed to do that. When you got there, as was your intention all along, you and Edward Martinez entered the residence, there were people present. This was a residence. It was not open to the public at that time. You had no license or privilege to be there.
Once inside, you were yelling, ["]Police. Freeze[."] in [an] attempt to compel the homeowners to do what you wanted them to do, thereby impersonating a public servant. Although you attempted to commit a robbery and you did so with firearms, nothing was actually taken.
When you confronted the homeowner, Eric Wegman, in the upstairs bedroom, he pulled his own handgun and fired, hitting both you and Mr. Martinez. Eric Wegman was also shot in the leg at that point.

N.T., 10/7/16, at 5-6.

         The trial court summarized the ensuing procedural history of this matter as follows:

[Tavarez] was sentenced to a term of incarceration of 10½ to 30 years in a state correctional facility. To reach this term of incarceration, the Court sentenced [Tavarez] consecutively on three of the charges. The first period of incarceration, lasting from 66 to 132 months, was received for the aggravated assault, robbery and the accompanying conspiracy charges. The second period of incarceration, lasting 48 to 96 months, was received for the burglary charge. The third period of incarceration, lasting 12 to 24 months, was received for the impersonating a public servant charge. Though the sentence in aggregate is considerable, [Tavarez] was sentenced on each charge within the standard range.
Following sentencing, by and through counsel, [Tavarez] filed a post-sentence motion to reconsider and modify sentence, on October 17, 2016. We denied this motion that day. On November 14, 2016, [Tavarez], now represented by the public defender, filed a notice of appeal. Due to a service error by the Court, Counsel did not receive notice requiring a [Pennsylvania Rule of Appellate Procedure 1925(b)] statement until, at the latest, November 28, 2016. Once Counsel received notice, [Tavarez] filed a timely [Rule 1925(b)] statement on December 12, 2016.

1925(a) Opinion, 1/30/17, at 1 (unpaginated) ("1925(a) Op.").

         On appeal, Tavarez raises three issues:

1. Whether the trial court erred and abused its discretion by failing to utilize the correct offense gravity score for the crime of impersonating a public servant.
2. Whether the trial court erred and abused its discretion by applying the deadly weapon (used) enhancement absent evidence that [Tavarez] used a deadly weapon as defined by the Sentencing Code in the commission of the burglary.
3. Whether the trial court erred and abused its discretion by failing to consider [Tavarez's] rehabilitative needs when imposing the sentence of ...

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