Opinion
1387 MDA 2022 J-A23025-23
01-10-2024
COMMONWEALTH OF PENNSYLVANIA v. ROBERT HENRY DAVENPORT, JR. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered June 8, 2021 In the Court of Common Pleas of Juniata County Criminal Division at No(s): CP-34-CR-0000149-2020
BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS, P.J.E. [*]
JUDGMENT ORDER
McLAUGHLIN, J.
Robert Henry Davenport, Jr. appeals the judgment of sentence following his convictions for one count each of burglary, theft by unlawful taking, receiving stolen property, access device fraud, and criminal mischief, and three counts each of theft by unlawful taking - felony of the third degree and receiving stolen property - felony of the third degree. He challenges the discretionary aspects of his sentence. We affirm.
18 Pa.C.S.A. §§ 3502(a)(4), 3921(a), 3925(a), 4106(a)(1)(ii), 3304(a)(5), 3921(a), and 3925(a), respectively.
A jury found Davenport guilty of the above-referenced offenses and the court sentenced Davenport to 15 to 30 years' incarceration. Davenport filed a post-sentence motion, asking the court to reconsider its sentence "due to being in the aggravated range" and claiming the court sentenced him based on the Commonwealth's recommendation in its sentencing memorandum. Post-Sentence Motion, filed 6/18/21, at ¶ 4. The court denied the motion by operation of law, and this timely appeal followed.
The court entered an order denying Davenport's post-sentence motion by operation of law on September 6, 2022. See Order - Denial of Post Sentence Motion By Operation of Law, dated 9/6/22. That same day, the court reinstated Davenport's appeal rights nunc pro tunc. See Order, filed 9/6/22.
Davenport raises one issue:
1. Did the trial court err by abusing its discretion where it failed to impose a sentence in accordance with the Sentencing Code where the trial court: (a) failed to place adequate reasons on the record for the sentence imposed; (b) failed to impose an individualized sentence; and (c) imposed a sentence identical to that of the request by the Commonwealth?
Davenport's Br. at 7 (unnecessary capitalization and suggested answer omitted).
Davenport challenges the discretionary aspects of his sentence which is not automatically appealable. See Commonwealth v. Conte, 198 A.3d 1169, 1173 (Pa.Super. 2018). We must first determine whether: 1) the appeal is timely; 2) the issue is preserved; 3) the brief includes a Rule 2119(f) statement; and 4) a substantial question has been raised. See Commonwealth v. Green, 204 A.3d 469, 488 (Pa.Super. 2019); Pa.R.A.P. 2119(f).
Here, Davenport's Rule 2119(f) statement claims that the court imposed an excessive and harsh sentence without considering his rehabilitative needs. See Davenport's Br. at 18 (Rule 2119(f) Statement). This claim is waived because he did not raise it below. See Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.Super. 2013) (en banc) (stating claims challenging discretionary aspects of sentence must be raised in post-sentence motion or at sentencing, and the failure to do so results in waiver).
Davenport also claims that the court imposed a lengthy sentence that amounts to a life sentence. This claim is waived for failure to raise it in the trial court. See id. He also presents an argument that the court abused its discretion in exacting the same sentence requested by the Commonwealth. However, this does not raise a substantial question. See Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014) (substantial question exists where "appellant advances a colorable argument that the sentence imposed is either inconsistent with a specific provision of the Sentencing Code or is contrary to the fundamental norms which underlie the sentencing process") (citation omitted). We therefore affirm. See Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (this Court will decide the merits of a challenge to the discretionary aspects of sentence "if the [appellant] satisfies each of [the] four requirements") (citation omitted).
Judgment of sentence affirmed.
Judgment Entered.
[*] Former Justice specially assigned to the Superior Court.