Com. v. Tirado

• Citation: 870 A.2d 362
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. William TIRADO, Appellant.
• Decision Date: 03 March 2005
• Court: Superior Court of Pennsylvania

870 A.2d 362

COMMONWEALTH of Pennsylvania, Appellee, v. William TIRADO, Appellant.

Superior Court of Pennsylvania.

Submitted October 4, 2004.

Filed March 3, 2005.

Maureen C. Coggins, Allentown, for appellant.

James B. Martin, Asst. Dist. Atty., Allentown, for Com., appellee.

BEFORE: DEL SOLE, P.J., PANELLA and TAMILIA, JJ.

OPINION BY PANELLA, J.:

¶ 1 Appellant, William Tirado, appeals from the judgment of sentence entered on January 15, 2004, by the Honorable William E. Ford, Court of Common Pleas of Lehigh County. On November 25, 2003, after reaching an "open" plea agreement¹ with the Commonwealth, Appellant pled guilty to burglary² and aggravated assault upon a police officer.³ Thereafter, on January 15, 2004, Appellant was sentenced to a period of imprisonment of 10 to 20 years on the burglary charge in addition to a concurrent term of 5 to 10 years on the aggravated assault charge. Appellant filed a motion for reconsideration of his sentence on January 26, 2004, which was subsequently denied by the sentencing court on January 27, 2004. This timely appeal followed.⁴ ¶ 2 On appeal Appellant raises only one issue for our review:

WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY SENTENCING THE APPELLANT OUTSIDE OF THE GUIDELINE RANGE?

...

Appellant's Brief, at 4. After careful review, we affirm.

¶ 3 On February 11, 2003, the victim, Ruth Ann Berghold, returned to her residence in Upper Saucon Township, Lehigh County, at approximately 2:50 p.m. Upon approaching her residence, the victim observed an unknown gray sedan parked at the entrance to her driveway. The victim pulled her vehicle into her driveway and parked. As she exited her vehicle, the victim observed Appellant's co-defendant, David Arroyo, leaving her residence through the front door carrying a stereo. Almost immediately, the gray sedan driven by Appellant fled the scene. Upon observing the victim, Arroyo placed the stereo on the sidewalk and fled the scene on foot in the same direction the gray sedan had driven off. The victim quickly ran into her residence and called the police. She provided the police with a description of Arroyo and the vehicle.

¶ 4 While Corporal Miller of the Upper Saucon Police Department was responding to the call, he observed a gray sedan traveling at an excessive rate of speed and in an extremely reckless manner on the shoulder of the road. Corporal Miller caught up to the vehicle and discovered that it was the car described by the victim and that the passenger, i.e., Arroyo, matched the description as well. Corporal Miller then activated the overhead lights and sirens on his marked patrol car and attempted to pull Appellant's vehicle to the side. Appellant refused to pull the vehicle over and proceeded to evade the officer by driving at speeds of over one hundred miles per hour on an interstate highway. During the chase, Appellant twice tried to force Corporal Miller's patrol car off the road. Eventually, Appellant's vehicle crashed into an embankment off the side of the road, after which Appellant and Arroyo attempted to flee on foot. However, Appellant's injuries prevented him from escaping and Arroyo yielded to the officers at gunpoint. Corporal Miller identified Appellant as the driver of the vehicle. The police recovered a stereo system, DVD player, and jewelry which had been taken from the victim's home, in plain view, in Appellant's vehicle.

¶ 5 Our review of Appellant's sole issue on appeal reveals that he is challenging the discretionary aspects of his sentence.⁵ Preliminarily, we note that

Issues challenging the discretionary aspects of a sentence must be raised in a post-sentence motion or by presenting the claim to the trial court during the sentencing proceedings. Absent such efforts, an objection to a discretionary aspect of a sentence is waived.

Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa.Super.2004) (citation omitted), appeal denied ___ Pa. ___, 860 A.2d 122 (2004). In the present case, Appellant timely filed a motion for reconsideration of sentence in which Appellant argued that the sentence he received was excessive. As such, we find that Appellant's motion for reconsideration of sentence preserved the claims now raised on appeal. See McAfee, 849 A.2d at 275

.

¶ 6 We note, however, that the right to appeal the discretionary aspects of a sentence is not absolute. See Commonwealth v. Pollard, 832 A.2d 517, 525 (Pa.Super.2003)

. When an appellant challenges the discretionary aspects of the sentence imposed, he must present a substantial question as to the inappropriateness of the sentence. See Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa.Super.2003). An appellant must, pursuant to Pennsylvania Rule of Appellate Procedure 2119(f), articulate "the manner in which 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." Commonwealth v. Mouzon, 571 Pa. 419, 435, 812 A.2d 617, 627 (2002). Only if an appellant's Rule 2119(f) statement meets these prerequisites can we determine whether a substantial question exists. Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa.Super.2000) (en banc), appeal denied 563 Pa. 672, 759 A.2d 920 (2000). "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. (emphasis in original).

¶ 7 In the present case, Appellant provides a Rule 2119(f) statement in his brief. In his Rule 2119(f) statement, Appellant states that his sentence constitutes "a gross deviation from the guidelines" and contends that the sentencing court considered factors already included in the guidelines. After review, we find that Appellant's Rule 2119(f) statement raises a sufficient substantial question to permit review.⁶See Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa.Super.2004)

(a claim that the sentencing court imposed an unreasonable sentence by sentencing outside the guidelines presents a substantial question); Commonwealth v. Griffin, 804 A.2d 1, 7 (Pa.Super.2002); Goggins, 748 A.2d at 732 (substantial question raised by claim that prior record was double-factored).

¶ 8 Before reviewing Appellant's claim, we note that a sentencing judge has a great deal of discretion in fashioning a sentence. A sentence will not be reversed absent an abuse of discretion. See Commonwealth v. Boyer, 856 A.2d 149, 153 (Pa.Super.2004)

. "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, bias or ill-will." Commonwealth v. Reynolds, 835 A.2d 720, 732 (Pa.Super.2003).

¶ 9 Where an excessive sentence claim is based on deviation from the sentencing guidelines, we look for an indication that the sentencing court understood the suggested sentencing range. See Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa.Super.2003)

. When there is such an indication, the sentencing court may deviate from the sentencing guidelines

to fashion a sentence which takes into account the protection of the public, the rehabilitative needs of the defendant, and the gravity of the particular offenses as it relates to the impact on the life of the victim and the community, so long as the court also states of record the factual basis and specific reasons which compelled him to deviate from the guideline range.

Id. (internal quotation marks and citation omitted). Thus, simply stated, the sentencing guidelines are merely advisory and the sentencing court may sentence a defendant outside the guidelines as long as the sentencing court places its reasons for doing so on the record. Id.

¶ 10 In the case sub judice, Appellant had a prior record score of 5. See Sentencing Guideline Sheet, dated 1/15/04. The offense gravity score assigned to burglary, a felony of the first degree, was 7. See 204 Pa.Code. § 303.15. Therefore, the standard range for his minimum sentence was 24 to 30 months incarceration, see 204 Pa.Code. § 303.16, and the aggravated range was 30 to 36 months. See id. The statutory maximum sentence of incarceration for burglary is 20 years. See 18 PA.CON.STAT.ANN. § 3502(c); 18 PA.CON.STAT.ANN. § 1103(1). As noted, Appellant received a sentence of a minimum of 10 years to a maximum of 20 years incarceration for his conviction for burglary. Thus, while this sentence is outside the sentencing guideline range, it is within the statutory limit.

¶ 11 Additionally, the offense gravity score assigned to aggravated assault upon a police officer, a felony of the second degree, is a 6. See 204 Pa.Code. § 303.15. The standard range for his minimum sentence was, therefore, anywhere from 21 to 27 months, see 204 Pa.Code. § 303.16, and the aggravated range was 27 to 34 months. See id. The statutory maximum sentence for aggravated assault upon a police officer is 10 years. See 18 PA.CON.STAT.ANN. § 2702(b); 18 PA.CON.STAT.ANN. § 1103(2). As mentioned, Appellant received a sentence of a minimum of 5 years to a maximum of 10 years incarceration for his conviction for aggravated assault upon a police officer. Thus, while this sentence is outside the sentencing guideline range, it is within the statutory limit.

¶ 12 In fashioning Appellant's sentences, the sentencing court noted Appellant's extensive criminal history which dates back to 1974. See N.T., Sentencing, 1/15/04, at 16; Presentence Investigation Report, at 4-7. The sentencing court also made observations regarding the dangerous consequences of the Appellant's conduct:

[T]he burglary is bad enough, it's a home burglary. And it's, in the eyes of this judge, there is never such a thing as just another burglary. A burglary is a terrible crime. A home burglary, there are not many crimes that are worse than home burglaries. These people will be

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