Opinion
J-S11027-18 No. 2037 EDA 2016
04-12-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. MICHAEL J. PANNELL Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered June 27, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-1104631-2005 BEFORE: OTT, STABILE, and MUSMANNO, JJ. MEMORANDUM BY STABILE, J.:
Appellant, Michael J. Pannell, appeals from the June 27, 2016 judgment of sentence. We affirm.
The record reveals that, on August 23, 2005, Appellant robbed and sexually assaulted the victim at knifepoint. The victim fought Appellant off but suffered severe injuries. Appellant entered a negotiated guilty plea on August 3, 2006. On November 10, 2006, the trial court imposed an aggregate 32 to 80 years of incarceration for involuntary deviate sexual intercourse, robbery, aggravated assault, attempted rape, and burglary. This Court affirmed the judgment of sentence on April 20, 2010, after Appellant sought and received the opportunity to file a nunc pro tunc direct appeal.
18 Pa.C.S.A. §§ , 3123(a)(1), 3701(a)(a)(i), 2702(a), 901(a), 3121(a)(1).
Appellant filed a timely pro se PCRA petition on January 10, 2011. Counsel was appointed, and Appellant filed an amended petition alleging that plea counsel was ineffective for failing to object when the prosecutor breached the parties' plea agreement. The PCRA court vacated Appellant's sentence on September 27, 2013, but did not allow Appellant to withdraw his plea. At the November 15, 2013 re-sentencing, the trial court (the same judge who presided over the PCRA petition) entered an identical 50-100 year sentence. Appellant filed timely post-sentence motions to the November 15, 2013 judgment of sentence, and those motions were denied by operation of law on March 21, 2014. Appellant filed a timely appeal, and on April 11, 2015, this Court remanded for re-sentencing before a different trial judge.
On June 17, 2016, the trial court sentenced Appellant to an aggregate 39½ to 100 years of incarceration. Appellant requested and received reconsideration, after which the trial court, on June 27, 2016, imposed an aggregate 32 to 80 years of incarceration. At the close of the June 27, 2016 hearing, Appellant orally requested reconsideration and the trial court refused. This timely appeal followed. The sole issue before us is the trial court's exercise of sentencing discretion.
A challenge to the discretionary aspects of a sentence must be considered a petition for permission to appeal, as the right to pursue such a claim is not absolute. When challenging the discretionary aspects of the sentence imposed, an appellant must present a substantial question as to the inappropriateness of the sentence. Two requirements must be met before we will review this challenge on its merits. First, an appellant must set forth in his brief a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of a sentence. Second, the appellant must show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. That is, 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. We examine an appellant's Rule 2119(f) statement to determine whether a substantial question exists. Our 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.Commonwealth v. Ahmad , 961 A.2d 884, 886-87 (Pa. Super. 2008) (internal citations and quotation marks omitted; italics in original).
Appellant argues that his sentence is excessive because the trial court effectively imposed a life sentence without considering his rehabilitative needs or the protection of the public. As the trial court explains in its September 14, 2017 opinion, a challenge to the aggregate effect of consecutive sentences does not ordinarily create a substantial question for appellate review. Despite this, the trial court proceeded to address Appellant's argument on the merits. We have reviewed the parties' briefs, the applicable law, the record, and the trial court opinion. We agree with the trial court's conclusion that Appellant argument fails on the merits. In particular, the trial court considered Appellant's extensive criminal history, both as an adult and as a juvenile. Trial Court Opinion, 9/14/17, at 11. The court also considered Appellant's statement that he could not guarantee that he would not reoffend. Id. at 12. The court considered the physical and psychological pain suffered by the victim, including a number of surgeries and her limited use of her hands due to knife wounds. Id. The court considered Appellant's character witnesses and his rehabilitative progress since entering prison. Id. at 11. We discern no error in the trial court's exercise of sentencing discretion, and we affirm the judgment of sentence based on the trial court's well-reasoned September 14, 2017 opinion.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/12/18
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