Opinion
No. 615 MDA 2006.
Filed March 20, 2007.
Appeal from the Judgment of Sentence entered on April 4, 2006, in the Court of Common Pleas of Berks County, Criminal Division, at No(s). CP-06-CR-3312-2004.
Before: FORD ELLIOTT, P.J., LALLY-GREEN, and JOHNSON, JJ.
¶ 1 The Commonwealth of Pennsylvania appeals from the judgment of sentence entered against Stephen J. Parsons ("Defendant") on April 4, 2006, in the Court of Common Pleas of Berks County, Pennsylvania. We affirm.
¶ 2 The trial court described the procedural history, and its treatment of this case in general, as follows:
On January 27, 2006, Defendant pled guilty to Statutory Sexual Assault and Corruption of the Morals of a Minor. The plea was tendered pursuant to an agreement between the Commonwealth and Defendant, wherein the Commonwealth agreed to dismiss the more serious charge of Rape in exchange for Defendant's agreement to plead guilty to the charges of Statutory Sexual Assault and Corruption of Minors. In addition to the "charge agreement" the Defendant agreed to accept a sentence of 6 to 23 months incarceration followed by 5 years probation and the Commonwealth agreed to seek only that sentence. This was the "sentencing agreement" part of the plea agreement between the Commonwealth and the Defendant.
The Court accepted Defendant's guilty plea, with no indication to either the Defendant or the Commonwealth whether the Court would accept the plea agreement regarding sentence. The Court, of course, could not accept the entirety of the agreement between the Commonwealth and the Defendant at the time of Defendant's plea, as the latter portion of the agreement, the "sentencing agreement," could not be fully considered until Defendant's sentencing hearing. There is absolutely nothing in the record to indicate that this Court at any time accepted, approved or otherwise was to accept and follow (or reject and not follow) the sentencing agreement between the Commonwealth and Defendant.
On April 4, 2006, the sentencing hearing was held and the Defendant was sentenced to 3 months of electronic monitoring as part of the 5 years probation followed by another 5 years probation. Therefore, the Defendant will be under this Court's supervision for 10 years.
Trial Court Opinion, 5/16/06, at 1-2. This appeal followed.
The Commonwealth filed a timely notice of appeal on April 4, 2006. Also on that day, the trial court ordered the Commonwealth to file a concise statement of matters complained of on appeal within 14 days pursuant to Pa.R.A.P. 1925. The Commonwealth complied by filing its concise statement, which includes the issue currently before us, on April 18, 2006.
¶ 3 The Commonwealth presents the following issue on appeal:
I. Did the trial court err in failing to sentence [Defendant] in accordance with the negotiated plea agreement, which the trial court previously accepted?
Commonwealth's Brief at 4.
¶ 4 Here, the Commonwealth challenges the sentence imposed on Defendant by the trial court. However, before we may address the substantive arguments presented, we must first analyze whether this appeal is properly before us.
¶ 5 It is well established that parties do not have the automatic right to challenge the discretionary aspects of a sentence. Rather, they must seek permission. Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987), appeal denied, 507 A.2d 387 (Pa. 1986); see also Commonwealth v. Goggins, 748 A.2d 721 (Pa.Super. 2000) ( en banc), appeal denied, 759 A.2d 920 (Pa. 2000). In contrast, a challenge to the legality of the sentence may be raised as a matter of right, is non-waivable, and may be entertained so long as the reviewing court has jurisdiction. Commonwealth v. Berry, 877 A.2d 479, 482 (Pa.Super. 2005) ( en banc), appeal denied, 2007 Pa. LEXIS 92 (Pa. Jan. 11, 2007). Therefore, we must determine whether the present appeal represents a challenge to the legality of Defendant's sentence, or a challenge to the trial court's exercise of discretion in sentencing.
¶ 6 There is currently no established test to be employed when determining whether a claim implicates the legality of the sentence or the discretionary aspects of a sentence. Nevertheless, in previous cases addressing the distinction between such claims, this Court has explained that "the term `illegal sentence' is a term of art that our Courts apply narrowly, to a relatively small class of cases." Id. at 483. An en banc panel of this Court recently outlined specific examples of issues which implicate the legality of a sentence. The list includes, generally: (1) claims that the sentence falls "outside of the legal parameters prescribed by the applicable statute"; (2) claims involving merger/double jeopardy; and (3) claims implicating the rule in Apprendi v. New Jersey, 530 U.S. 466 (2000). See Commonwealth v. Jacobs, 900 A.2d 368, 372-373 (Pa.Super. 2006) ( en banc), appeal denied, 2007 Pa. LEXIS 206 (Pa. Jan. 30, 2007) (citations omitted). Each of these types of claims challenges the legal authority of the court to impose the particular sentence that it did. Id. However, most any other challenge to a sentence will merely implicate the discretionary aspects of the sentence. See, e.g., Commonwealth v. Archer, 722 A.2d 203 (Pa.Super. 1998) ( en banc), appeal denied, 766 A.2d 1246 (Pa. 2000) (holding that the improper application of the sentencing guidelines constitutes a challenge to the discretionary aspects of sentence, not the legality of the sentence).
¶ 7 Here, it is undisputed that the sentence imposed on Defendant was statutorily permissible. Furthermore, the Commonwealth's appeal does not present any of the types of issues outlined in Jacobs that implicate a non-waivable legality of sentence claim. As such, it is apparent that the Commonwealth's issue raises a challenge to the trial court's exercise of discretion in sentencing Defendant.
¶ 8 Because we have concluded that this appeal represents a challenge to the discretion of the trial court in sentencing, certain procedural requirements must be met before this Court may consider the appeal. It is settled that this Court will grant an appeal challenging the discretionary aspects of a sentence "only where the appellant has advanced a colorable argument that the sentence is inconsistent with the Sentencing Code or `contrary to the fundamental norms which underlie the sentencing process.'" Commonwealth v. Lewis, 911 A.2d 558, 566 (Pa.Super. 2006), quoting Commonwealth v. Martin, 727 A.2d 1136, 1143 (Pa.Super. 1999), appeal denied, 745 A.2d 1220 (Pa. 1999). As noted above, "such an appeal is not a matter of right; rather, an appellant must seek permission from this Court to appeal and establish that a substantial question exists that the sentence was not appropriate under the Sentencing Code." Lewis, 911 A.2d at 566, citing Commonwealth v. Mouzon, 812 A.2d 617 (Pa. 2002); Tuladziecki; 42 Pa.C.S.A. § 9781(b). "This is accomplished by the filing of a separate concise statement pursuant to Pa.R.A.P. 2119(f)[.]" Id. at 567. Pennsylvania Rule of Appellate Procedure 2119(f) provides that:
An appellant who challenges the discretionary aspects of a sentence in a criminal matter shall 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. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of sentence.
Pa.R.A.P. 2119(f). "A failure to include the Rule 2119(f) statement does not automatically waive an appellant's argument; however, we are precluded from reaching the merits of the claim when [the appellee] lodges an objection to the omission of the statement." Commonwealth v. Roser, 2006 PA Super 365, ¶ 30. Rule 2119 is applicable regardless of whether it is the defendant who appeals the sentence imposed or the Commonwealth that brings the appeal. See Commonwealth v. Eckles, 625 A.2d 1265 (Pa.Super. 1993) ( per curiam), appeal denied, 651 A.2d 532 (Pa. 1994) (holding that the Commonwealth is required to set forth a Rule 2119(f) statement in its brief as a requisite to our consideration of an issue challenging the discretionary aspects of a sentence).
¶ 9 As stated above, the Commonwealth here has challenged the trial court's exercise of discretion in sentencing Defendant. However, our review of the Commonwealth's brief reveals that it does not include a Rule 2119(f) statement of the reasons relied upon for allowance of appeal. Furthermore, Defendant has raised an objection to this omission in his brief. See Defendant's Brief at 4-5. Because the Commonwealth failed to comply with Rule 2119(f), and Defendant has specifically objected to this omission, we are constrained to affirm the judgment of sentence without addressing the merits of the arguments presented. Tuladziecki; Eckles; Roser.
¶ 10 Judgment of sentence affirmed.