Opinion
J-S79014-16 No. 125 EDA 2016
11-01-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. MARK WOLF Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence November 12, 2015
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0005714-2015; CP-09-CR-0005845-2015 BEFORE: GANTMAN, P.J., MOULTON, J., and MUSMANNO, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Mark Wolf, appeals from the judgment of sentence entered in the Bucks County Court of Common Pleas, following his open guilty plea to two counts of retail theft and one count of receiving stolen property. We affirm.
18 Pa.C.S.A. §§ 3929(a)(1) and 3925(a), respectively.
In its opinion, the trial court fully and correctly set forth the relevant facts of this case. Therefore, we have no reason to restate them. Procedurally, the Commonwealth charged Appellant with the various offenses on October 8, 2015. Appellant entered an open guilty plea to all offenses on November 12, 2015. The same day, the court sentenced Appellant to consecutive terms of nine (9) to eighteen (18) months' incarceration on each count of retail theft; Appellant's receiving stolen property charge merged for sentencing purposes with retail theft. Thus, the court imposed an aggregate sentence of eighteen (18) to thirty-six (36) months' incarceration. On Monday, November 23, 2015, Appellant timely filed a post-sentence motion, which the court denied on December 4, 2015. On December 31, 2015, Appellant filed a notice of appeal. The court ordered Appellant on January 11, 2016, to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely complied on January 28, 2016.
Appellant raises the following issue for our review:
DID THE SENTENCING COURT ABUSE ITS DISCRETION BY SENTENCING APPELLANT TO SERVE CONSECUTIVE SENTENCES OF INCARCERATION THAT AGGREGATED TO A STATE PRISON SENTENCE BY NOT CONSIDERING MITIGATING EVIDENCE, AND RELYING ON FACTORS THAT WERE ALREADY CONTEMPLATED BY THE AVAILABLE SENTENCING GUIDELINES?(Appellant's Brief at 4).
Challenges to the discretionary aspects of sentencing do not entitle an appellant to an appeal as of right. Commonwealth v. Sierra , 752 A.2d 910, 912 (Pa.Super. 2000). Prior to reaching the merits of a discretionary aspects of sentencing issue:
[W]e 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). Objections to the discretionary aspects of sentence are generally waived if they are not raised at the sentencing hearing or raised in a motion to modify the sentence imposed at that hearing. Commonwealth v. Mann , 820 A.2d 788, 794 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
When appealing the discretionary aspects of a sentence, an appellant must invoke the appellate court's jurisdiction by including in his brief a separate concise statement demonstrating that there is a substantial question as to the appropriateness of the sentence under the Sentencing Code. Commonwealth v. Mouzon , 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f). "The requirement that an appellant separately set forth the reasons relied upon for allowance of appeal furthers the purpose evident in the Sentencing Code as a whole of limiting any challenges to the trial court's evaluation of the multitude of factors impinging on the sentencing decision to exceptional cases." Commonwealth v. Phillips , 946 A.2d 103, 112 (Pa.Super. 2008), appeal denied, 600 Pa. 745, 964 A.2d 895 (2009), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d 240 (2009).
The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. Commonwealth v. Anderson , 830 A.2d 1013 (Pa.Super. 2003). A substantial question exists "only when the appellant advances a colorable argument that the sentencing judge's actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process." Sierra , supra at 913. A claim of excessiveness can raise a substantial question as to the appropriateness of a sentence under the Sentencing Code, even if the sentence is within the statutory limits. Mouzon , supra at 430, 812 A.2d at 624. Importantly, a claim that the court double-counted a defendant's prior record raises a substantial question. Commonwealth v. Goggins , 748 A.2d 721, 732 (Pa.Super. 2000) (en banc), appeal denied, 563 Pa. 672, 759 A.2d 920 (2000). Additionally:
Pennsylvania law affords the sentencing court discretion to impose [a] sentence concurrently or consecutively to other sentences being imposed at the same time or to sentences already imposed. Any challenge to the exercise of this discretion does not raise a substantial question. In fact, this Court has recognized the imposition of consecutive, rather than concurrent, sentences may raise a substantial question in only the most extreme circumstances, such as where the aggregate sentence is unduly harsh, considering the nature of the crimes and the length of imprisonment.Commonwealth v. Austin , 66 A.3d 798, 808 (Pa.Super. 2013), appeal denied, 621 Pa. 692, 77 A.3d 1258 (2013) (internal citations and quotation marks omitted).
Here, Appellant properly preserved his discretionary aspects of sentencing claim in his post-sentence motion and Rule 2119(f) statement; and his claim that the court double-counted his prior convictions by focusing on his previous offenses at sentencing appears to raise a substantial question as to the discretionary aspects of his sentence. See Goggins , supra.
Our standard of review of a challenge to the discretionary aspects of sentencing is as follows:
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. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.Commonwealth v. Hyland , 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal denied, 586 Pa. 723, 890 A.2d 1057 (2005) (quoting Commonwealth v. Rodda , 723 A.2d 212, 214 (Pa.Super. 1999) (en banc)).
Pursuant to Section 9721(b), "the court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant." 42 Pa.C.S.A. § 9721(b). "[T]he court shall make as part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed." Id. Nevertheless, "[a] sentencing court need not undertake a lengthy discourse for its reasons for imposing a sentence or specifically reference the statute in question...." Commonwealth v. Crump , 995 A.2d 1280, 1283 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475 (2010). Rather, the record as a whole must reflect the sentencing court's consideration of the facts of the case and the defendant's character. Id. "In particular, the court should refer to the defendant's prior criminal record, his age, personal characteristics and his potential for rehabilitation." Commonwealth v. Griffin , 804 A.2d 1, 10 (Pa.Super. 2002), appeal denied, 582 Pa. 671, 868 A.2d 1198 (2005), cert denied, 545 U.S. 1148, 125 S.Ct. 2984, 162 L.Ed.2d 902 (2005). As a general rule, "a sentencing court may not 'double count' factors already taken into account in the sentencing guidelines." Goggins , supra at 732. Nevertheless, "courts are permitted to use prior conviction history and other factors included in the guidelines if, they are used to supplement other extraneous sentencing information." Commonwealth v. Shugars , 895 A.2d 1270, 1275 (Pa.Super. 2006).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Diane E. Gibbons, we conclude Appellant's issue merits no relief. The trial court opinion comprehensively discusses and properly disposes of the question presented. ( See Trial Court Opinion, filed April 19, 2016, at 4-6) (finding: transcript from sentencing hearing shows court discussed Appellant's long-term drug abuse; court considered Appellant's drug treatment efforts, but found Appellant enrolled in treatment only in response to incarceration rather than of his own volition; court noted Appellant's prior record score of five, which indicated Appellant was likely to reoffend; court imposed sentences within standard range; court's observation of Appellant's lengthy criminal history before court imposed consecutive sentences was not abuse of discretion; court fashioned sentence based on individual circumstances involved in Appellant's case; sentence imposed was therefore reasonable). Accordingly, we affirm on the basis of the trial court opinion.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/1/2016
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