Opinion
J-S43015-19 No. 2052 MDA 2018
10-28-2019
COMMONWEALTH OF PENNSYLVANIA Appellee v. HOUSTON ROBERT HALL Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered October 1, 2018
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0001821-2017 BEFORE: GANTMAN, P.J.E., DUBOW, J., and STEVENS, P.J.E. MEMORANDUM BY GANTMAN, P.J.E.:
Former Justice specially assigned to the Superior Court. --------
Appellant, Houston Robert Hall, appeals from the judgment of sentence entered in the Lycoming County Court of Common Pleas, following his open guilty plea to two counts of simple assault and harassment, and one count each of terroristic threats and criminal mischief. We affirm.
18 Pa.C.S.A. §§ 2701(a)(3), 2709(a)(3), 2706(a)(1), and 3304(a)(2), respectively.
In its opinion, the trial court fully and correctly sets forth the relevant facts and procedural history of this case. Therefore, we have no need to restate them. Procedurally, we add the court ordered Appellant on December 21, 2018, to file a concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b); Appellant timely complied on January 2, 2019.
Appellant raises the following issue for our review:
DID THE TRIAL COURT ABUSE ITS DISCRETION BY IMPOSING CONSECUTIVE SENTENCES WHICH AGGREGATED TO A TERM OF STATE INCARCERATION TOTALING TWO (2) TO FIVE (5) YEARS?(Appellant's Brief at 4).
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 (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) (internal citations omitted). Objections to the discretionary aspects of a sentence are generally waived if they are not raised at the sentencing hearing or raised in a motion to modify the sentence imposed at that hearing. Commonwealth v. Mann , 820 A.2d 788 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
Our standard of review concerning the discretionary aspects of sentencing 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. Hyland , 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal denied, 586 Pa. 723, 890 A.2d 1057 (2005). Under Section 9721(b), "the court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant." 42 Pa.C.S.A. § 9721(b). The record as a whole must reflect the sentencing court's consideration of the facts of the case and the defendant's character. Commonwealth v. Crump , 995 A.2d 1280, 1283 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475 (2010). "In particular, the court should refer to the defendant's prior criminal record, his age, personal characteristics and his potential for rehabilitation." Commonwealth v. Griffin , 804 A.2d 1, 10 (Pa.Super. 2002), appeal denied, 582 Pa. 671, 868 A.2d 1198 (2005), cert denied, 545 U.S. 1148, 125 S.Ct. 2984, 162 L.Ed.2d 902 (2005).
After a thorough review of the record, Appellant's brief, the applicable law, and the well-reasoned opinions of the Honorable Marc F. Lovecchio, we conclude Appellant's issue merits no relief. The trial court opinions comprehensively discuss and properly dispose of the question presented. ( See Opinion and Order Denying Post-Sentence Motions, filed November 19, 2018, at 2-7) (finding: court initially believed deadly weapon used enhancement would apply; after taking testimony and discussing matter further with parties, however, court concluded that pursuant to plea agreement, court would use only deadly weapon possessed enhancement; court did not impose de facto deadly weapon used enhancement; court reviewed PSI report and all relevant factors and imposed standard range sentence; sentence imposed was palpably reasonable and within court's discretion). ( See also Trial Court Opinion, filed April 3, 2019, at 5-6) (finding: court thoroughly addressed Appellant's claims in its opinion and order denying post-sentence motions; further, Appellant's claim that court imposed de facto deadly weapon used enhancement lacks any basis in record; court imposed sentence based upon consideration of all relevant factors and consistent with sentencing purposes; nothing in record supports Appellant's claim that court improperly relied upon negligent action of defense counsel which required appearance of victims at more than one proceeding; court did consider Appellant's criminal history which included his failure to take advantage of "breaks" court had given Appellant in past; sentence was not manifestly excessive; court considered PSI, Appellant's allocution, arguments of counsel, and other sentencing factors, and imposed individualized sentence consistent with protection of public, gravity of offense, and Appellant's rehabilitative needs). Accordingly, we affirm based on the trial court opinions.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/28/2019
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