Opinion
836 MDA 2023 J-S45043-23
01-17-2024
COMMONWEALTH OF PENNSYLVANIA v. DENISE ROLON Appellant
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered May 2, 2023 In the Court of Common Pleas of Sullivan County Criminal Division at No(s): CP-57-CR-0000012-2023
Benjamin D. Kohler, Esq.
BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E. [*]
MEMORANDUM
STEVENS, P.J.E.
Denise Rolon appeals from the May 2, 2023 judgment of sentence of 16 to 60 months' imprisonment, plus a $500 fine and $5.77 in restitution, imposed after she pled guilty to one count of retail theft. After careful review, we affirm the judgment of sentence.
The record reflects that Appellant received 86 days credit for time-served.
The trial court summarized the relevant facts and procedural history of this case as follows:
On or about March 9, 2023 a criminal information was filed against [Appellant] charging her with one count of retail theft, a felony of the third degree. According to the criminal information, [Appellant] on or about September 6, 2022 stole a BIC lighter and beef stick
from the KWIK FILL in Sullivan County, Pennsylvania. Thereafter, [Appellant] pleaded guilty to the same on April 19, 2023.
[Appellant] was sentenced on May 2, 2023 to pay a fine of five hundred dollars ($500.00), make restitution in the amount of five dollars and seventy-seven Cents ($5.77), and be committed to the Department of Corrections for confinement in a State Institution for a period of not less than sixteen (16) months nor more than sixty (60) months. [Appellant] received credit eighty-six (86) days. [Appellant] was further ordered to obtain a drug and alcohol evaluation and mental health evaluation during her period of incarceration. Defendant was found not to be eligible for an RRRI minimum sentence due to her prior criminal records but she was deemed to be eligible for State Intermediate Punishment and/or Bootcamp programs.
Trial court opinion, 7/31/23 at 1-2 (citation and extraneous capitalization omitted).
On May 12, 2023, Appellant filed a timely post-sentence motion for reconsideration of sentence, which was denied by the trial court on May 19, 2023. On June 7, 2023, counsel filed a timely notice of appeal on Appellant's behalf, purportedly from the order denying her post-sentence motion. However, this Court has long recognized that, "[i]n a criminal action, [an] appeal properly lies from the judgment of sentence made final by the denial of post-sentence motions." Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa.Super. 2001) (en banc) (citation omitted), appeal denied, 800 A.2d 932 (Pa. 2002). Accordingly, the docket was corrected to reflect that Appellant's appeal lies from the May 2, 2023 judgment of sentence.
Appellant and the trial court have complied with Pa.R.A.P. 1925.
Appellant raises the following issue for our review:
1. Did the trial court issue a sentencing order that was cruel and excessive in sentencing [Appellant] to an aggregate sentence of not less than sixteen (16) months nor more than sixty (60) months in a state correctional facility when [Appellant's] retail theft was de minimis and non-violent?
Appellant's brief at 4 (extraneous capitalization omitted).
"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." Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014) (citation omitted), appeal denied, 117 A.3d 297 (Pa. 2015). 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. Bullock, 170 A.3d 1109, 1123 (Pa.Super. 2017) (citation omitted), appeal denied, 184 A.3d 944 (Pa. 2018).
Where an appellant challenges the discretionary aspects of her sentence, as is the case here, the right to appellate review is not absolute. Commonwealth v. Conte, 198 A.3d 1169, 1173 (Pa.Super. 2018), appeal denied, 206 A.3d 1029 (Pa. 2019). On the contrary, an appellant challenging the discretionary aspects of her sentence must invoke this court's jurisdiction by satisfying the following four-part test:
(1) whether the appeal is timely; (2) whether appellant preserved his issue; (3) whether appellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code.Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013) (citations omitted).
Instantly, the record reveals that Appellant filed a timely notice of appeal and preserved her claim in a post-sentence motion. Appellant has also included a statement in her brief that comports with the requirements of Pa.R.A.P. 2119(f). Accordingly, we must now determine whether Appellant has raised a substantial question.
"The determination of what constitutes a substantial question must be evaluated on a case-by-case basis." Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013) (citation omitted), appeal denied, 76 A.3d 538 (Pa. 2013). "A substantial question exists only when 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." Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.Super. 2012) (citation omitted), appeal denied, 63 A.3d 774 (Pa. 2013).
Instantly, the trial court sentenced Appellant to a term of 16 to 60 months' imprisonment, which was at the top end of the standard range of the Sentencing Guidelines. 204 Pa.Code. § 303.16(a). In fashioning this sentence, the trial court explicitly noted that an extensive pre-sentence investigation ("PSI") report was completed in this matter which revealed that this was Appellant's fifth case involving retail theft and that her prior record score was 5. See trial court opinion, 7/31/23 at 2.
This Court has long recognized that "[a] bald or generic assertion that a sentence is excessive does not, by itself, raise a substantial question justifying this Court's review of the merits of the underlying claim." Commonwealth v. Christine, 78 A.3d 1, 10 (Pa.Super. 2013) (citation omitted), affirmed, 125 A.3d 394 (Pa. 2015). Additionally, "a claim of excessiveness that is raised against a sentence within the statutory limits fails to raise a substantial question as a matter of law." Commonwealth v. Mouzon, 812 A.2d 617, 623 (Pa. 2002). Moreover, "a claim of inadequate consideration of mitigating factors does not raise a substantial question for our review." Commonwealth v. Crawford, 257 A.3d 75, 79 (Pa.Super. 2021) (citations omitted).
Accordingly, we find that Appellant's contention that her sentence was "cruel and excessive" fails to raise a substantial question for our review.
In any event, even if Appellant had properly set forth a substantial question for our review, she would not be entitled to relief. It is well settled that where the trial court has the benefit of a PSI report, as is the case here, "we shall . . . presume that the sentencing judge was aware of relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors." Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa.Super. 2014) (citation omitted), appeal denied, 95 A.3d 275 (Pa. 2014).
Based on the foregoing, we affirm Appellant's May 2, 2023 judgement of sentence.
Judgment of sentence affirmed.
Judge Bowes concurs in the result.
Judge Lazarus joins.
Judgment Entered.
[*] Former Justice specially assigned to the Superior Court.