Opinion
J-S56007-18 No. 1979 MDA 2017
10-10-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. SHAWN C. CONKLIN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence November 16, 2017
In the Court of Common Pleas of Wyoming County
Criminal Division at No(s): CP-66-CR-0000472-2015 BEFORE: GANTMAN, P.J., KUNSELMAN, J., and MUSMANNO, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Shawn C. Conklin, appeals from the judgment of sentence entered in the Wyoming County Court of Common Pleas, following his open plea of guilty but mentally ill to attempted third-degree murder and two counts of aggravated assault. We affirm.
18 Pa.C.S.A. § 901 (section 2502(c) related); 2702(a)(1), respectively.
In its opinion, the trial court accurately set forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them.
On December 19, 2017, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b); Appellant timely complied on January 3, 2018.
Appellant raises one issue for our review:
WAS [APPELLANT'S] RIGHT TO AN INDIVIDUALIZED
SENTENCE VIOLATED WHEN THE RESENTENCING COURT ADMITTEDLY REFUSED TO CONSIDER MITIGATING INFORMATION PRESENTED BY DEFENSE COUNSEL AT THE RESENTENCING?(Appellant's Brief at x) (internal footnote omitted).
Preliminarily, a challenge to the discretionary aspects of sentencing is not automatically reviewable as a matter of right. Commonwealth v. Hunter , 768 A.2d 1136 (Pa.Super. 2001), appeal denied, 568 Pa. 695, 796 A.2d 979 (2001). Prior to reaching the merits of a discretionary sentencing issue:
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.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 waived if they are not raised at the sentencing hearing or in a timely filed post-sentence motion. Commonwealth v. Griffin , 65 A.3d 932 (Pa.Super. 2013), appeal denied, 621 Pa. 682, 76 A.3d 538 (2013).
Instantly, Appellant did not object at sentencing and concedes he did not file a post-sentence motion, following the court's resentencing hearing. Consequently, his challenge to the discretionary aspects of his sentence is waived. See id. Further, Appellant's claim fails to raise a substantial question. See Commonwealth v. Cruz-Centeno , 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996) (explaining general allegation that sentencing court failed to adequately consider certain factors does not raise substantial question).
Appellant insists he is excused from waiver because he was unaware of the particular sentencing claim he wanted to raise on appeal until the court issued its Rule 1925(a) opinion stating it had no obligation to consider any mitigating information that arose between Appellant's original sentencing and the resentencing hearing, such as Appellant's good behavior in prison. Appellant is essentially reiterating the same claim he raised in his Rule 1925(b) statement that the court failed to consider mitigating factors and impose an individualized sentence; Appellant merely adds on appeal a challenge to the court's specific remarks in its opinion. Under these circumstances, Appellant's claim remains waived.
To support his substantial question analysis, Appellant relies on Commonwealth v. Serrano , 150 A.3d 470 (Pa.Super. 2016) (holding appellant's challenge to court's failure to impose individualized sentence upon resentencing raised substantial question where resentencing judge mechanically re-imposed original sentence entered by different judge without making independent reassessment or reevaluation of sentencing criteria; resentencing judge expressly stated it was not his role to take independent look at case). Unlike Serrano , the facts of this case involved the same judge at the original and resentencing proceedings, and the resentencing hearing was limited to deciding whether Appellant was in need of mental health treatment under 42 Pa.C.S.A. § 9727 (governing dispositions of persons found guilty but mentally ill). Thus, Appellant's reliance on Serrano is misplaced.
Moreover, after a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Russell D. Shurtleff, we conclude that even if Appellant had properly preserved his sentencing claim, we would affirm. The trial court opinion comprehensively discusses and properly disposes of the question presented. ( See Trial Court Opinion, filed February 9, 2018, at 10-13) (finding: Appellant challenges court's failure to consider mitigating evidence regarding progress Appellant has made while incarcerated; nevertheless, Section 9727 requires only that court must hold hearing prior to sentencing to decide if Appellant is severely mentally disabled and in need of treatment and permits court to impose any lawful sentence; mental health hearing is not opportunity for court to look to mitigating factors not before court at original sentencing hearing; in fashioning its sentence, court relied on extensive pre-sentence investigation report, victim statements, and three psychiatric reports of Appellant; court imposed consecutive sentences to reflect three victims at issue and all sentences were within guidelines; any lesser sentence would depreciate serious nature of Appellant's actions; due to Dr. Fischbein's testimony at mental health hearing, court included in its re-sentencing orders provision for Appellant to obtain mental health evaluation and treatment while incarcerated to ensure Appellant has access to proper facility and professionals who can determine appropriate treatment and monitoring for Appellant; progress Appellant makes while incarcerated is for parole board to consider). Accordingly, even if Appellant had not waived his issue, we would affirm.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/10/2018
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