J-S28035-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DESTRY ARYN CAVADA

Appellant No. 1934 MDA 2014

Appeal from the Judgment of Sentence September 24, 2014

In the Court of Common Pleas of Union County

Criminal Division at No(s): CP-60-CR-0000101-2014

*****

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DESTRY ARYN CAVADA

Appellant No. 1935 MDA 2014

Appeal from the Judgment of Sentence September 24, 2014

In the Court of Common Pleas of Union County

Criminal Division at No(s): CP-60-CR-0000102-2014

*****

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DESTRY ARYN CAVADA

Appellant No. 1936 MDA 2014
J-S28035-15

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Appeal from the Judgment of Sentence September 4, 2014

In the Court of Common Pleas of Union County

Criminal Division at No(s): CP-60-CR-0000108-2014

BEFORE: BOWES, J., ALLEN, J., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.: FILED JULY 10, 2015

Destry Aryn Cavada appeals from his judgment of sentence of 1 to 10 

years’ incarceration imposed by the Court of Common Pleas of Union County. 

Cavada entered an open guilty plea to three separate counts of retail theft.1 

The court sentenced him to two consecutive terms of imprisonment of 6 

months to 5 years on two counts. The court also sentenced Cavada on the 

remaining count to an additional concurrent term of imprisonment of 6 

months to 5 years. On appeal, Cavada claims the court erred in sentencing 

him to a consecutive term on one of the retail theft convictions. Upon 

review, we affirm Cavada’s judgment of sentence.

The trial court set forth the factual and procedural history of these 

cases as follows:

On April 29, 2014, the Commonwealth filed three separate 

[Informations] against [Cavada], one to each of the above 

captioned cases. Each information was a one count Information 

charging [Cavada] with the crime of retail theft, a misdemeanor 

in the first degree. On July 16, 2014, [Cavada] entered guilty 

pleas to the one count [Informations]. The Plea Agreement as 

indicated on the colloquy indicated that the Commonwealth did 

not object to concurrent sentences but that the aggregate 

sentences should be consecutive to any other sentences 

____________________________________________

1 18 Pa.C.S. § 3929(a)(1).
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[Cavada] has been serving at the time. There was no 

agreement that the sentences be concurrent or consecutive 

however. At the guilty plea hearing, the Court confirmed that 

[Cavada] understood his plea agreement . . . The aggregate 

sentence to which [Cavada] was sentenced was twelve months 

to ten years with a Recidivism Risk Reduction Incentive (RRRI) 

sentence of nine months. Two of the sentences were 

consecutive to each other and one was concurrent to the other 

sentences.

Trial Court Opinion, 1/2/15, at 1-2. 

Cavada filed a timely post-sentence motion requesting the trial court 

modify the sentence and make all the sentences concurrent with each other. 

The trial court denied the petition. Specifically, the court indicated that the 

sentences were consistent with the plea agreement, that they were in the

standard-range of the Sentencing Guidelines and that Cavada was not 

amenable to county supervision in that his county parole on other crimes 

had previously been revoked on five different occasions. Id. at 2. 

As indicated in Cavada’s Pre-Sentence Investigation report (PSI), he 

has had an almost uninterrupted period of criminal behavior for over nine 

years. Cavada’s offenses indicated substance abuse issues, crimes of 

dishonesty, and felonies.2 Additionally, Cavada’s PSI shows a pattern of 

disregard of conditions of court orders and conditions of parole and 

probation supervision. See Pre-Sentence Investigation Report, at 3-7.

____________________________________________

2

Felonies include criminal trespass, burglary, manufacturing with intent to 

deliver a controlled substance (two counts), criminal use of a facility, and 

robbery. 
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Cavada’s allegation that his sentence was excessive due to it being 

consecutive is a challenge to the discretionary aspect of his sentence, which 

is not appealable as of right. Rather, an appellant challenging the 

sentencing court’s discretion must invoke the Court’s jurisdiction by 

satisfying a four-part test. Commonwealth v. Prisk, 13 A.3d 526 (Pa. 

Super. 2011).

We 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. § 9781(b).

Id. at 532, citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 

2006). 

Judicial review of the discretionary aspects of a sentence is granted 

only upon a showing that there is a substantial question that the sentence 

was inappropriate and contrary to the fundamental norms underlying the 

Sentencing Code. Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 

1987). A substantial question exists “only when the appellant advances a 

colorable argument that the sentencing judge’s actions were either: (1) 

inconsistent with a specific provision in the Sentencing Code; or (2) contrary 

to the fundamental norms which underlie the sentencing process.” 

Commonwealth v. Brown, 741 A.2d 726, 735 (Pa. Super. 1999) (en 

banc). This argument addresses the discretionary aspects of sentence. See 
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Commonwealth v. McKiel, 629 A.2d 1012 (Pa. Super. 1993) (stating that 

sentence is manifestly excessive challenges sentencing court's discretion).

Cavada does not contend that his sentence exceeds the statutory 

limits. It is the fact that his sentence is to run consecutively to the others 

imposed for non-violent theft offenses that, in Cavada’s view, makes the 

sentence excessive. Cavada asserts that the sentences imposed result only 

in a delay of much needed treatment, and that such treatment would likely 

had been accelerated had he received totally concurrent county sentences. 

See Appellant’s brief at 13. 

It is well established that a sentencing court’s failure to consider 

mitigating factors raises a substantial question. See Commonwealth v. 

Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003). However, a sentencing 

court generally has discretion to impose multiple sentences concurrently or 

consecutively, and a challenge to the exercise of that discretion does not 

ordinarily raise a substantial question. Commonwealth v. Pass, 314 A.2d 

442, 446-47 (Pa. Super. 2006). 

We are mindful, however, that “the key to resolving the preliminary 

substantial question inquiry is whether the decision to sentence 

consecutively raises the aggregate sentence to, what appears upon its face 

to be, an excessive level in light of the criminal conduct at issue in the case.” 

Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa. Super. 2010). An 

appellant making an excessiveness claim raises a substantial question when 
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he “sufficiently articulates the manner in which the sentence violates either a 

specific provision of the sentencing scheme set forth in the Sentencing Code 

or particular fundamental norm underlying the sentencing process.” 

Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002). Applying 

Mouzon, this Court has held that an excessive sentence claim, in 

conjunction with an assertion that the court failed to consider mitigating 

factors, raises a substantial question. Commonwealth v. Perry, 883 A.2d 

599, 602 (Pa. Super. 2005). Because we interpret Cavada’s arguments as 

raising substantial questions under both Felmlee and Mastromarino, we 

grant Cavada’s petition for allowance of appeal and consider the merits of 

his claim.

Our standard of review in this context is as follows:

Sentencing is a matter vested in the sound discretion of 

the sentencing judge, and a sentence will not be disturbed 

on appeal absent a manifest abuse of discretion. In this 

context, an abuse of discretion is not shown merely by an 

error in judgment. Rather, the appellant must establish, 

by reference to the record, that the sentencing court 

ignored or misapplied the law, exercised its judgment for 

reasons of partiality, prejudice, bias or ill will, or arrived at 

a manifestly unreasonable decision Commonwealth v. 

Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006). 

Additionally, our review of the discretionary aspects of a 

sentence is confined by the statutory mandates of 42 Pa.C.S. 

§§9781(c) and (d). Subsection 9781(c) provides:

The appellate court shall vacate the sentence and remand the 

case to the sentencing court with instructions if it finds:

(1) The sentencing court purported to sentence within the 

sentencing guidelines erroneously; 
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(2) The sentencing court sentenced within the sentencing 

guidelines but the case involves circumstances where the 

application of the guidelines would be clearly 

unreasonable; or 

(3) The sentencing court sentenced outside the sentencing 

guidelines and the sentence is unreasonable. In all other 

cases the appellate court shall affirm the sentence imposed 

by the sentencing court. 

42 Pa.C.S. § 9781 (c). 

In reviewing the record, we consider:

(1) The nature and circumstances of the offense and the 

history and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the 

defendant, including any presentence investigation. 

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission. 

42 Pa.C.S. § 9781(d).

Commonwealth v. Raven, 97 A.3d 1253-55 (Pa. Super. 2014).

Instantly, Cavada’s sentence falls within the strictures of our 

sentencing guidelines. He, therefore, must demonstrate that the application 

of those guidelines would be clearly unreasonable. 42 Pa.C.S. § 9781(c)(2). 

Cavada submits that the sentencing court did not weigh the nature and 

circumstances of his crimes, or his mitigating history and characteristics. To 

this end, Cavada argues that the sentencing court disregarded his need for 

drug treatment therapy, as well as the non-violent nature of his crimes. 

Here, Cavada has failed to articulate why imposing a consecutive 

sentence for his offenses is unduly harsh beyond his own preference for drug 

treatment and insistence that because his offenses were non-violent, he 
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should have received a concurrent sentence. We see no reason why Cavada 

should be afforded a “volume discount” for his crimes by having all 

sentences run concurrently. Commonwealth v. Anderson, 650 A.2d 20, 

22 (Pa. 1994) (raising concern that defendants not be given “volume 

discounts” for multiple criminal acts that arose out of one larger criminal 

transaction). 

Despite Cavada’s assertions to the contrary, the sentencing court was 

unquestionably aware of his background and rehabilitative needs. The court 

stated:

I agree with you, Mr. Cavada, you need help; but it’s help 

beyond which Union County can provide to you. You have 

demonstrated you are not amenable to county supervision by 

multiple revocations and continuing a pattern of criminal 

behavior since 2005. Hopefully, with the state programming, 

you can get the assistance you need. [Although] he hasn’t been 

convicted of the delivery of drugs or the robbery, given that 

those are pending, and his prior record of corruption of minors, 

criminal trespass, burglary, alcohol offenses, and drug offenses, 

this is something that’s more appropriate for a state programing. 

Sentencing Hearing, 11/19/14, at 5-7. 

Based upon all of this evidence, the court imposed a consecutive 

standard-range sentence for one of the offenses. The gist of Cavada’s 

argument is not that the court failed to consider the pertinent sentencing 

factors, but rather that the court weighed those factors in a manner 

inconsistent with his wishes. Accordingly, we conclude that the record 

supports the sentencing court’s reasoning and we find no abuse of 

discretion. The sentence imposed for each of Cavada’s offenses was within 
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the standard range of the sentencing guidelines, and the record reflects that 

the court carefully considered all the evidence presented at the sentencing 

hearing. As such, we discern no abuse of discretion, nor can we conclude 

that the sentencing court arrived at a manifestly unreasonable decision. 

See Shugars, 895 A.2d at 1275.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/10/2015