J. S38013/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

NOEL BAUTISTA, : No. 2964 EDA 2015

:

 Appellant :

Appeal from the Judgment of Sentence, August 18, 2015,

in the Court of Common Pleas of Lehigh County

Criminal Division at Nos. CP-39-CR-0000116-2015,

CP-39-CR-0000129-2015

BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 24, 2016

Noel Bautista appeals from the August 18, 2015 judgment of sentence 

in the Court of Common Pleas of Lehigh County following his convictions of 

two counts of robbery and one count of possession of a small amount of 

marijuana.1 We affirm.

During the guilty plea proceedings, appellant admitted to the following 

facts:

Case 129 occurred first in time. That was 

December 28, 2014. Allentown police were 

responding to a report of an armed robbery that had 

occurred in the area of 1205 Lehigh Parkway South.

The victim stated that he had responded to a Craig’s 

List ad that was using a given telephone number and 

through several text messages to the phone number 

 

1 18 Pa.C.S.A. § 3701(a)(1)(ii) and 35 P.S. § 780-113(a)(31), respectively.
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the victim had agreed to meet with a female party in 

the area of 1205 South Parkway.

When the victim arrived in the area he was not met 

by a female but was, in fact, met by [appellant] who 

asked if he was there to meet Kayla.

The victim was advised to go to the rear of 

1205 Lehigh Parkway South where he was met by 

another Hispanic male. They both pulled out 

handguns, pointed them at the victim and demanded 

his money.

They took his cell phone and cash which was 

approximately $200.

. . . .

Case 116 occurred next on January 3rd of 2015.

At around 3:30 a.m. Allentown police were 

summoned to the Wawa on Lehigh Street for a 

report of an armed robbery.

The victim states that he had responded to a Back 

Page ad advertising an escort, that he was directed 

to the Roadway Inn in Allentown. He was 

communicating via a telephone number.

And when he arrived he was approached by 

[appellant] who got into his car and made him drive 

to Wawa and withdraw money from the ATM.

He then -- he got $150 . . . .

Notes of testimony, 7/8/15 at 5-7.2

The sentencing court provided the following procedural history:

 

2 The Commonwealth read the above facts into the record during the guilty 

plea proceedings. After the facts had been read into the record, the 

sentencing court asked appellant if that was “what [he] did.” Appellant 

answered in the affirmative. (Id. at 6-7.)
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On July 8, 2015, [appellant] came before this 

Court to enter a plea of guilty to Robbery in Case 

No. 116/2015 and Case No. 129/2015. On the same 

date, [appellant] entered a guilty plea to Possession 

of a Small Amount of Marijuana in Case 

No. 591/2015. The terms of the plea agreement 

included the Commonwealth agreeing not to pursue 

the other counts of the information and to run all 

cases concurrently. In all other respects, the plea 

was open. Then, on August 18, 2015, this Court 

sentenced [appellant] to a term of imprisonment of 

not less [than] ten (10) years nor more than 

twenty (20) years on both the aforementioned 

Robbery charges. This Court imposed a fine of 

$500.00 on the charge of Possession of a Small 

Amount of Marijuana. In compliance with the plea 

agreement, the sentences were ordered to run 

concurrently to each other. On August 28, 2015, 

[appellant] filed Post Sentence Motions pursuant to 

[Pa.R.Crim.P. 720.] Subsequently, on September 1, 

2015, this Court denied [appellant’s] requested 

relief. [This] appeal followed on September 29, 

2015. 

On September 30, 2015, this Court instructed 

[appellant] to file of record and serve upon this 

Court a concise statement of errors complained of on 

appeal no later than October 21, 2015, in accordance 

with [Pa.R.A.P. 1925(b). Appellant] timely complied 

with said Order.

Trial court opinion, 10/26/15 at 1-2 (citations omitted). The trial court filed 

an opinion pursuant to Pa.R.A.P. 1925(a), in which it incorporated its opinion 

of September 1, 2015, which accompanied the trial court’s order denying 

appellant’s post sentence motions.

Appellant raises the following issue on appeal:

Whether the Lower Court abused its discretion in 

imposing a manifestly excessive and unreasonable 

sentence which is at the statutory maximum limit 
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and imposed when the Court failed to consider any 

significant mitigating factors, failed to apply and 

review all the necessary factors as set forth in 

42 Pa.C.S.A. § 9721(b) and 42 Pa.C.S.A. § 9781(c) 

and (d) or otherwise failed to set forth appropriate 

reasons for its deviation from the standard 

sentencing ranges?

Appellant’s brief at 7. 

[T]he proper standard of review when considering 

whether to affirm the sentencing court’s 

determination is an abuse of discretion. . . . [A]n 

abuse of discretion is more than a mere error of 

judgment; thus, a sentencing court will not 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. In more expansive terms, our Court 

recently offered: An abuse of discretion may not be 

found merely because an appellate court might have 

reached a different conclusion, but requires a result 

of manifest unreasonableness, or partiality, 

prejudice, bias, or ill-will, or such lack of support so 

as to be clearly erroneous.

The rationale behind such broad discretion and the 

concomitantly deferential standard of appellate 

review is that the sentencing court is in the best 

position to determine the proper penalty for a 

particular offense based upon an evaluation of the 

individual circumstances before it.

Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010) 

(citation omitted).

Challenges to the discretionary aspects of sentencing 

do not entitle an appellant to review as of right. 

Commonwealth v. Sierra, [752 A.2d 910, 912 

(Pa.Super. 2000)]. An appellant challenging the 

discretionary aspects of his sentence must invoke 

this Court’s jurisdiction by satisfying a four-part test:
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[W]e conduct a four-part analysis to 

determine: (1) whether 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

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, 

42 Pa.C.S.A. § 9781(b).

Moury, 992 A.2d at 170 (citation omitted).

Here, we begin our analysis by determining whether appellant has 

complied with the procedural requirements of challenging his sentence. 

First, appellant timely filed his notice of appeal pursuant to Pa.R.A.P. 902 

and 903. Second, he properly preserved the issue in a motion to modify 

sentence which was filed on August 28, 2015. The sentencing court denied 

appellant’s motion on September 1, 2015.

Third, appellant included a Rule 2119(f) statement in his brief, in 

which he avers that the sentence he received for first-degree robbery was

“significantly more than the aggravated range of the Sentencing Guidelines.” 

(See appellant’s brief at 11.) Specifically, appellant alleges that he was 

sentenced to the statutory maximum, and that the sentencing court failed to 

adequately support its deviation from the sentencing guidelines. (Id. see 

also 42 Pa.C.S.A. § 9781(c)(3).) The sentencing court’s statutory maximum 

sentence of 10-20 years’ imprisonment is in excess of the guidelines, which 
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call for an aggravated range of 114 months’ imprisonment. (Appellant’s 

brief at 14; Commonwealth’s brief at 10.) Finally, in light of appellant’s Rule 

2119(f) statement, we find that appellant has advanced a substantial 

question. See 42 Pa.C.S.A. § 9781(c)(3). Accordingly, we shall review 

appellant’s claim on its merits. 

“In every case where the court imposes a sentence 

outside the sentencing guidelines . . . the court shall 

provide a contemporaneous written statement of the 

reason or reasons for the deviation from the 

guidelines. Failure to comply shall be grounds for 

vacating the sentence and resentencing the 

defendant.” Commonwealth v. Rodda, 723 A.2d 

212, 215 (Pa.Super. 1999); 42 Pa.C.S. § 9721(b). 

Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa.Super. 2015).

When sentencing appellant, the sentencing court made the following 

notation for the record:

This sentence is a maximum sentence as a result of 

the following factors:

[Appellant’s] criminal conduct amounted to an actual 

kidnapping.

There are multiple robberies.

[Appellant] expresses no remorse and admits to 

continuing his gang affiliation.[3]

[Appellant] is a danger to the community.

 

3 The sentencing court noted for the record that the pre-sentence report 

indicated that, “[appellant] adamantly admitted his affiliation and 

involvement with the Bloods Gang. He talked about how he got [initiated 

into the gang]. When asked if he ever plans on giving up the gang life-style, 

[appellant] replied, ‘I don’t know, but I do what I want.’” (Notes of 

testimony, 8/18/15 at 4.)
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Notes of testimony, 8/18/15 at 7. 

The court acknowledged receiving the pre-sentence report in this case 

and indicated that it reviewed the report and its attachments. (Id. at 2.) 

The sentencing court sentenced appellant to the statutory maximum only 

after it reviewed the presentence report, considered counsel’s argument, 

and permitted appellant to address the court. We find the above factors 

listed by the sentencing court to be sufficient justification for the sentencing 

court to deviate from the sentencing guidelines in this case. Accordingly, 

the sentencing court did not abuse its discretion when it sentenced appellant 

to the statutory maximum.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/24/2016