Com. v. Rodriguez, J. (memorandum)
Annotate this Case
Download PDF
J-S26023-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. JOSE A. RODRIGUEZ, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1955 EDA 2013 Appeal from the Judgment of Sentence Entered May 15, 2013, In the Court of Common Pleas of Lehigh County, Criminal Division, at No. CP-39-CR-0004638-2012. BEFORE: BENDER, P.J.E., SHOGAN and FITZGERALD*, JJ. MEMORANDUM BY SHOGAN, J.: FILED AUGUST 15, 2014 Appellant, Jose A. Rodriguez, appeals from the judgment of sentence imposed following his guilty plea to delivery of heroin. Following our review of the complete record and briefs, we affirm. The Commonwealth summarized the facts of the crime at the guilty plea hearing, as follows: On September 12th of 2012, Detective Madero was monitoring drug activity through the cameras in the 400 block of North Seventh Street. As he had been observing a male for several days, later identified as the defendant, he believed he was involved in selling heroin. There were other detectives who were doing physical surveillance in the area. Detective Madero indicated that he had observed the defendant hand a packet, a small packet, in exchange for currency, to a male, who immediately handed it to a second male. That second male was stopped and a packet of heroin was recovered. The defendant . . . was reported by the purchaser to ____________________ *Former Justice specially assigned to the Superior Court. J-S26023-14 have provided that packet of heroin[.] [C]onfirmation of that led Detective Madero to stop the defendant and he had $124.00 in currency on his person. The estimated weight of that heroin would [be] three one hundred[th]s of a gram. N.T. (Guilty Plea), 4/15/13, at 16. On April 15, 2013, Appellant pled guilty to delivery of heroin. In minimum sentence at the bottom end of the standard range of the guidelines. Following a presentence investigation, the trial court sentenced Appellant on May 15, 2013, to fifteen to thirty-six months of imprisonment and further deemed him RRRI1 eligible. Appellant filed a post-sentence motion, which was denied, and this appeal followed. Appellant raises the following issues on appeal: I. Is there a substantial question for which the Superior Court should grant allowance of appeal of the discretionary aspects of the sentence? II. Did the court err in sentencing [Appellant] to a harsh and excessive sentence where [Appellant] accepted full[] responsibility for his actions and asked to stay locally so he could find a job to help support his family? ). Initially, we must consider whether Appellant has waived the opportunity to present this challenge. It is firmly established that a plea of guilty generally 1 RRRI is recidivism risk reduction incentive program. Commonwealth v. Tobin, 89 A.3d 663, 665 (Pa. Super. 2014). -2- J-S26023-14 amounts to a waiver of all defects and defenses except those concerning the jurisdiction of the court, the legality of sentence, and the validity of the guilty plea. Commonwealth v. Stradley, 50 A.3d 769, 771 (Pa. Super. 2012). As noted, Appellant entered a negotiated guilty plea to one count of then , 957 A.2d 1265, 1267 (Pa. Super. 2008) (citing Commonwealth v. Dalberto, 648 A.2d 16, 20 (Pa. Super. 1994)). At the plea hearing, however, the trial court advised Appellant that the Following a presentence investigation, it was ultimately determined that Appellant had a prior record score of four with an offense gravity score of six. N.T. (Sentencing), 5/15/13, at 4. The trial court stated that the Id. at 4. The trial court imposed a sentence of fifteen to thirty-six months of imprisonment; the minimum sentence thus was at the bottom end of the standard range. Id. -3- J-S26023-14 There are two aspects to this sentence that compel our conclusion that the plea was not a negotiated sentence as that term generally is understood. Fi definite sentence to be imposed. More importantly, however, due to the could be no clear understanding of the length of the sentence negotiated. Thus, as in Dalberto, the plea agreement falls somewhere between a negotiated plea and an open plea. This hybrid plea, as in Dalberto, did not include a specific term of imprisonment, but it did place limitations on Dalberto Id., 648 A.2d at 21; see also Commonwealth v. Brown, 982 A.2d 1017 (Pa. Super. 2009) (where negotiated plea called for the appellant to receive a sentence with a minimum term at the bottom end of the standard range of his sentencing guidelines, which the court imposed, the appellant could pursue an appeal regardin implicating the discretionary aspects of his sentence. The issues identified on appeal allege that the sentence imposed was -4- J-S26023-14 -settled law that there is no absolute right to appeal the discretionary aspects of a sentence. Commonwealth v. Hartle, 894 A.2d 800, 805 (Pa. Super. allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010): An appellant challenging the discretionary aspects of his four-part test: [W]e conduct a four-part analysis to determine: (1) whether [the] 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 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. ยง 9781(b). Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 2006)). Herein, the first three requirements of the four-part test are met, those being that Appellant filed a timely appeal, he raised the challenge in his post-sentence motion, and he included in his appellate brief the necessary separate concise statement of the reasons relied upon for -5- J-S26023-14 allowance of appeal pursuant to Pa.R.A.P. 2119(f). Therefore, we determine whether Appellant raises a substantial question requiring us to review the discretionary aspects of the sentence imposed. A claim of excessiveness can raise a substantial question as to the appropriateness of a sentence under the Sentencing Code, even if the sentence is within the statutory limits. Commonwealth v. Mouzon, 812 A.2d 617, 624 (Pa. 2002). Bald allegations of excessiveness, however, do not raise a substantial question to warrant appellate review. Id. at 627. Rule 2119(f) statement sufficiently articulates 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 Id. Whether a particular issue constitutes a substantial question about the appropriateness of sentence is a question we evaluate on a case-by-case basis. Commonwealth v. Austin, 66 A.3d 798 (Pa. Super. 2013). In his concise statement, Appellant asserts that the sentence imposed he was crime free for thirtythree years and was sent to a State Correctional Institution for selling 30 mg. of heroin because he lost his job and was unable to meet the basic -6- J-S26023-14 Appellant certain mitigating factors does not raise a substantial question that his standard-range sentence is inappropriate. An allegation that the sentencing court failed to consider mitigating factors generally does not raise a substantial question for our review. Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013); Commonwealth v. Rhoades, 8 A.3d 912, 918 919 (Pa. Super. 2010). Moreover, where, as here, the sentencing court had the benefit of a pre- Moury, 992 A.2d at 171 (citation omitted). raise a substantial question warranting appellate review, he is not entitled to relief on his sentencing claim. Judgment of sentence affirmed. Jurisdiction relinquished. BENDER, J., files a Dissenting Memorandum. -7- J-S26023-14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 8/15/2014 -8-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
