Opinion
J-S66012-17 No. 1933 WDA 2016
12-21-2017
COMMONWEALTH OF PENNSYLVANIA, Appellee v. AVERY AUVIAN KIRKSEY, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered September 5, 2014
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000187-2014 BEFORE: BENDER, P.J.E., DUBOW, J., and PLATT, J. MEMORANDUM BY BENDER, P.J.E.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Avery Auvian Kirksey, appeals from the judgment of sentence of an aggregate term of 84 to 180 months' incarceration, imposed after he was convicted of simple assault, recklessly endangering another person, carrying a firearm without a license, and persons not to possess a firearm. We affirm.
We note that in the trial court's Pa.R.A.P. 1925(a) opinion, it incorrectly states that Appellant's aggregate sentence is 90 to 180 months' incarceration. See Trial Court Opinion (TCO), 1/13/17, at 1. Our review of the sentencing order, however, demonstrates that Appellant's aggregate, minimum term is 84 months' imprisonment. --------
On appeal, Appellant presents two questions for our review, which we have reordered for ease of disposition:
A. Whether the trial court abused its discretion in sentencing [] Appellant and whether that [] sentence is manifestly excessive, clearly unreasonable and inconsistent with the objectives of the Sentencing Code[?]Appellant's Brief at 3 (unnecessary capitalization and emphasis omitted).
B. Whether the evidence was sufficient to find [] Appellant guilty of [carrying a firearm] without a license and persons not to possess a firearm?
Initially, we conclude that Appellant has waived his first issue - a discretionary aspects of sentencing claim - for two reasons. First, Appellant did not file a post-sentence motion raising this claim before the trial court. See Commonwealth v. Bromley , 862 A.2d 598, 603 (Pa. Super. 2004) ("It is well settled that an [a]ppellant's challenge to the discretionary aspects of his sentence is waived if the [a]ppellant has not filed a post-sentence motion challenging the discretionary aspects with the sentencing court."). Second, aside from stating general principles regarding our review of sentencing claims, Appellant's entire argument consists of the following:
Appellant argues that the trial court's imposition of a period of eighty-four (84) to one-hundred eighty (180) months' incarceration is manifestly excessive, clearly unreasonable and inconsistent with the objectives of the Pennsylvania Sentencing Code. Appellant argues that the objectives of Section 9721(a) of the Pennsylvania Sentencing Code could have been achieved without the imposition of such a lengthy sentence.Appellant's Brief at 9-10. Appellant's cursory argument, which provides no discussion of the mitigating circumstance of his 'rehabilitative potential,' is insufficient to permit meaningful review of his sentencing claim. Accordingly, we conclude that his first issue is waived for our review on this basis, as well. See Commonwealth v. Hardy , 918 A.2d 766, 771 (Pa. Super. 2007) ("This Court will not act as counsel and will not develop arguments on behalf of an appellant. Moreover, when defects in a brief impede our ability to conduct meaningful appellate review, we may dismiss the appeal entirely or find certain issues to be waived.").
...
[] Appellant challenges the discretionary aspects of his sentence by arguing that the trial court abused its discretion in sentencing Appellant to such a lengthy period of incarceration, given the mitigating factors of this case. Specifically, [] Appellant challenges the length of his sentence given the fact that he has rehabilitative potential.
In any event, even if not waived, we would deem Appellant's sentencing claim meritless for the reasons set forth by the Honorable John Garhart of the Court of Common Pleas of Erie County in his Rule 1925(a) opinion. See TCO at 4-6. Additionally, having reviewed the certified record, the briefs of the parties, and the applicable law, we also adopt Judge Garhart's well-reasoned assessment of Appellant's challenge to the sufficiency of the evidence to sustain his firearm convictions. See id. at 2-4. Accordingly, we affirm Appellant's judgment of sentence.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/21/2017
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