Opinion
J-S36038-18 No. 2321 EDA 2017
10-10-2018
COMMONWEALTH OF PENNSYLVANIA Appellant v. ROBERT LEWIS BLANCK Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence April 3, 2017
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0008863-2015 BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, the Commonwealth of Pennsylvania, appeals from the judgment of sentence entered in the Montgomery County Court of Common Pleas, following Appellee, Robert Lewis Blanck's jury trial convictions of aggravated assault, simple assault, and REAP. We affirm.
18 Pa.C.S.A. §§ 2702(a)(1) and 2702(a)(4), 2701(a)(1), and 2705, respectively.
In its opinion, the trial court fully and correctly sets forth the relevant facts and procedural history. Therefore, we have no need to restate them.
The Commonwealth raises one issue for our review:
WHETHER THE SENTENCING COURT ABUSE[D] ITS DISCRETION BY IMPOSING A BELOW-MITIGATED RANGE SENTENCE WHERE [APPELLEE] PISTOL-WHIPPED...VICTIM, FOLLOWED HIM AS HE FLED, SHOT HIM IN THE GUT FROM POINT-BLANK RANGE, AND LEFT HIM IN THE STREET BLEEDING, AND ITS ONLY REASONS FOR THE DOWNWARD
DEPARTURE WERE (A) [APPELLEE] HAVING NO PRIOR RECORD; (B) [APPELLEE] LIVING A "GOOD LIFE" TO THAT POINT; AND (C) BLAMING...VICTIM?(Commonwealth's Brief at 5).
Challenges to the discretionary aspects of sentencing do not entitle an appellant to an appeal as of right. Commonwealth v. Sierra , 752 A.2d 910, 912 (Pa.Super. 2000). Prior to reaching the merits of a discretionary sentencing issue:
[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).Commonwealth v. Evans , 901 A.2d 528, 533 (Pa.Super. 2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006). When appealing the discretionary aspects of a sentence, an appellant must invoke the appellate court's jurisdiction by including in its brief a separate concise statement demonstrating a substantial question as to the appropriateness of the sentence under the Sentencing Code. Pa.R.A.P. 2119(f); Commonwealth v. Mouzon , 571 Pa. 419, 812 A.2d 617 (2002). The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. Commonwealth v. Anderson , 830 A.2d 1013 (Pa.Super. 2003). 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 of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process." Sierra , supra at 912-13.
Whether the sentencing court relied on unreasonable factors to impose a sentence below the recommendation of the guidelines presents a substantial question. Commonwealth v. Sims , 728 A.2d 357 (Pa.Super. 1999), appeal denied, 560 Pa. 703, 743 A.2d 918 (1999). Nevertheless,
Consultation of the guidelines will...further the goal of the guidelines, viz., increased uniformity, certainty, and fairness in sentencing. Guidelines serve the laudatory role of aiding and enhancing the judicial exercise of judgment regarding case-specific sentencing. Guidelines may help frame the exercise of judgment by the court in imposing a sentence. Therefore, based upon the above, we re-affirm that the guidelines have no binding effect, create no presumption in sentencing, and do not predominate over other sentencing factors—they are advisory guideposts that are valuable, may provide an essential starting point, and that must be respected and considered; they recommend, however, rather than require a particular sentence.Commonwealth v. Walls , 592 Pa. 557, 570, 926 A.2d 957, 964-65 (2007) (emphasis added). Further, where the sentencing court had the benefit of a presentence investigative ("PSI") report, we can presume the court "was aware of relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors." Commonwealth v. Devers , 519 Pa. 88, 101-02, 546 A.2d 12, 18 (1988).
Our standard of review concerning the discretionary aspects of sentencing states:
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. Hyland , 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal denied, 586 Pa. 723, 890 A.2d 1057 (2005).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Gail A. Weilheimer, we conclude the Commonwealth's issue merits no relief. The trial court opinion comprehensively discusses and properly disposes of the question presented. ( See Trial Court Opinion, filed December 11, 2017, at 9-16) (finding: Appellee's sentence, while outside guideline range, is reasonable; before sentencing, court reviewed Appellee's PSI report, to which parties had no objections; court also considered Victim's impact statement and letter from Appellee's wife; during sentencing hearing, court heard testimony of Victim and Appellee's step-daughter, as well as Appellee's allocution; in fashioning sentence, court considered factors in Section 9781(d) and totality of circumstances surrounding Appellee's offenses; Victim's tampering and criminal mischief on Appellee's property catalyzed incident; Victim was initially thrown out of Appellee's home due to drinking and erratic behavior associated with Victim's criminal history; Victim cut off electricity to Appellee's home, even though he knew Appellee's son's nebulizer required electricity to function; Victim also threw beer can at Appellee's parked car in driveway; during incident, Victim was intoxicated and became physical with Appellee; court also took notice of law enforcement's inaction despite previous calls from Appellee's wife regarding potential confrontation with Victim; Appellee has no criminal history, and his conduct was part of isolated incident with Victim; Appellee is not at risk of re-offending and causing danger to public; court acted within its discretion in imposing upon Appellee sentence that fell six months below guideline range; sentence adequately protects public and meets Appellee's rehabilitative needs; Commonwealth failed to articulate how six-month deviation from sentencing guidelines prevents adequate public protection or fails to meet Appellee's rehabilitative needs). The record supports the trial court's rationale, and we see no reason to disturb it. See Hyland , supra . Accordingly, we affirm on the basis of the trial court opinion.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/10/18
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