Opinion
J-S79007-18 No. 786 MDA 2018
03-27-2019
COMMONWEALTH OF PENNSYLVANIA v. MELISSA PALLADINO Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence April 10, 2018
In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0001011-2014, CP-36-CR-0004424-2013, CP-36-CR-0005085-2017 BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J. MEMORANDUM BY SHOGAN, J.:
Appellant, Melissa Palladino, appeals from the judgment of sentence entered on April 10, 2018, in the Lancaster County Court of Common Pleas. We affirm.
We point out that Appellant violated Pa.R.A.P. 341 by filing a single notice of appeal on May 10, 2018, that included three trial court docket numbers, CP-36-CR-1011-2014, CP-36-CR-4424-2013, and CP-36-CR-5085-2017. On June 1, 2018, our Supreme Court held that, prospectively, "when a single order resolves issues arising on more than one lower court docket, separate notices of appeal must be filed. The failure to do so will result in quashal of the appeal." Commonwealth v. Walker , 185 A.3d 969, 977 (Pa. 2018) (emphasis added). In the instant case, however, we note that Appellant's consolidated notice of appeal was docketed separately at each of the three trial court docket numbers, as was her Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Additionally, the trial court addressed the issues Appellant raised relative to each docket number in its Pa.R.A.P. 1925(a) opinion. We conclude there is no impediment to appellate review caused by Appellant's failure to file separate notices of appeal in this case. Moreover, because Appellant's consolidated notice of appeal was filed prior to our Supreme Court's June 1, 2018 decision in Walker , we need not quash the appeal. See Commonwealth v. Williams , ___ A.3d ___, 2019 PA Super 41 (Pa. Super. 2019) (declining to quash an appeal pursuant to Pa.R.A.P. 341 where the consolidated notice of appeal was filed prior to the decision in Walker ).
The trial court set forth the relevant facts and procedural history of this case as follows:
On September 14, 2017, [Appellant] was charged on Docket Number 5085-2017 with one count of Possession With Intent to Deliver - Heroin ("PWID")1 and one count of Criminal Conspiracy to Commit Possession With Intent to Deliver - Heroin ("Criminal Conspiracy").2 At that time, [Appellant] was serving probation sentences on Docket Number 4424-2013 for one count of Theft of Lost or Mislaid Property,3 and on Docket Number 1011-2014 for twenty-two (22) counts of Identity Theft.4 On October 11, 2017, [Appellant] appeared before the Honorable Howard F. Knisely for a probation violation hearing. After stipulating that the Commonwealth would be able to prove the new charges brought against her beyond a preponderance of the evidence, [Appellant] was found to be in violation of her probation and her probation was revoked. Sentencing was deferred pending disposition of [Appellant's] new charges. [Appellant] was represented by Daniel M. Strazynski, Esquire ("Plea Counsel").
1 35 P.S. § 780-113(a)(30), an ungraded felony.
2 18 Pa. C.S.A. § 903(a), an ungraded felony.
3 18 Pa. C.S.A. § 3924, a misdemeanor of the first degree.
4 18 Pa. C.S.A. § 4120, a misdemeanor of the first degree.
On January 12, 2018, a guilty plea hearing was held before this court, and [Appellant] entered a non-negotiated plea of guilty on Docket Number 5085-2017. After a thorough plea colloquy, the court accepted [Appellant's] plea. A presentence investigation
report ("PSI Report") was ordered for all dockets and sentencing was deferred until its completion.Trial Court Opinion, 8/16/18, at 1-3.
On April 10, 2018, a sentencing hearing was held before this court on all dockets. On Docket Number 5085-2017, [Appellant] was sentenced on each count to a period of twenty (20) months to ten (10) years' incarceration. The sentence on Count 2 was made to run consecutive to Count 1. On Docket Numbers 4424-2013 and 1011-2014, [Appellant] was sentenced on each count to a period of two and one half (2½) to five (5) years' incarceration. The sentences were made to run concurrent with each other and concurrent with Docket Number 5085-2017. Thus, [Appellant] received an aggregate sentence of forty (40) months to twenty (20) years' incarceration.
On April 17, 2018, and April 19, 2018, respectively, [Appellant] filed a Post-Sentence Motion to Modify Sentence and an Amended Post-Sentence Motion ("Post-Sentence Motions") on the above dockets, which the court denied by Order of May 1, 2018. On May 10, 2018, [Appellant] filed a Notice of Appeal to the Superior Court of Pennsylvania, and on May 14, 2018, the court entered an Order directing [Appellant] to file a concise statement of errors complained of on appeal. On June 4, 2018, [Appellant] filed a Statement of Errors Complained of on Appeal ("Concise Statement"), and the Commonwealth filed its Response to [Appellant's] Statement of Errors Complained of on Appeal ("Response") on June 27, 2018.
On appeal, Appellant raises the following issue for this Court's consideration:
Was an aggregate sentence [of] 40 months to 20 years [of] incarceration for nonviolent offenses manifestly excessive and contrary to the fundamental norms underlying the sentencing process?Appellant's Brief at 9.
Appellant's issue presents a challenge to the discretionary aspects of her sentence. It is well settled that when an appellant challenges the discretionary aspects of his sentence, there is no automatic appeal; rather, the appeal will be considered a petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). Furthermore, as this Court noted in Commonwealth v. Moury , 992 A.2d 162 (Pa. Super. 2010):
[a]n appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction by satisfying a four-part test:
Id. at 170 (citing Commonwealth v. Evans , 901 A.2d 528 (Pa. Super. 2006)).[W]e conduct a four-part analysis to determine: (1) whether [the] 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 [the] 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).
Appellant has satisfied the first three elements of the four-part test from Moury. Appellant preserved the sentencing issue by filing a timely post-sentence motion and notice of appeal, and she provided a statement of reasons for allowance of appeal from the discretionary aspects of her sentence pursuant to Pa.R.A.P. 2119(f) in her brief. Next, we must determine if Appellant has raised a substantial question for our review. Moury , 992 A.2d at 170.
A substantial question requires a demonstration that "the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular
fundamental norm underlying the sentencing process." Commonwealth v. Tirado , 870 A.2d 362, 365 (Pa. Super. 2005). This Court's inquiry "must focus on the reasons for which the appeal is sought, in contrast to the facts underlying the appeal, which are necessary only to decide the appeal on the merits." Id. Whether a substantial question has been raised is determined on a case-by-case basis; the fact that a sentence is within the statutory limits does not mean a substantial question cannot be raised. Commonwealth v. Titus , 816 A.2d 251, 255 (Pa. Super. 2003). However, a bald 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. Id.Commonwealth v. Fisher , 47 A.3d 155, 159 (Pa. Super. 2012).
In her Pa.R.A.P. 2119(f) statement, Appellant avers that the trial court imposed a manifestly excessive sentence and failed to consider the non-violent nature of Appellant's offenses. Appellant's Brief at 15. We conclude that Appellant has presented a substantial question for our review. See Commonwealth v. Swope , 123 A.3d 333, 340 (Pa. Super. 2015) (stating that a claim that a sentence is manifestly excessive, together with an allegation that the trial court failed to consider mitigating factors and rehabilitative needs, presents a substantial question).
It should be noted that "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. Sheller , 961 A.2d 187, 190 (Pa. Super. 2008). Additionally, an abuse of discretion is not merely an error in judgment; rather, an appellant must establish that the trial court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias, or ill will, or reached a manifestly unreasonable decision. Id.
Finally, when the trial court has the benefit of a pre-sentence investigation report ("PSI"), there is a presumption that the trial court properly considered and weighed all relevant factors. See Commonwealth v. Finnecy , 135 A.3d 1028, 1038 (Pa. Super. 2016) ("[W]here the sentencing judge had the benefit of a [PSI] report, it will be presumed that he or she was aware of the relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors.").
We have reviewed Appellant's brief, the relevant legal authority, the certified record on appeal, and the trial court's August 16, 2018 opinion. In that opinion, the trial court addressed first the sentences imposed on the new convictions at docket number 5085-2017, next the probation-revocation sentences imposed at docket numbers 4424-2013 and 1011-2014, and last the aggregate sentence imposed at all three docket numbers. After review, we conclude that trial court thoroughly and correctly addressed Appellant's sentencing issues. Accordingly, we affirm Appellant's judgment of sentence on the basis of the trial court's opinion and adopt its reasoning as our own. The parties are directed to attach a copy of August 16, 2018 opinion in the event of further proceedings in this matter.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 03/27/2019
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