J-S46040-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ELIZABETH ANN BELL, :
:
Appellant : No. 106 MDA 2014
Appeal from the Judgment of Sentence entered on January 2, 2014
in the Court of Common Pleas of Perry County,
Criminal Division, No. CP-50-CR-0000431-2013
BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 11, 2014
imposed following her entry of a guilty plea to one count of theft by unlawful
taking.1 We dismiss the appeal.
The trial court set forth the relevant facts and procedural history as
follows:
On November 1, 2013, [Bell] was sentenced in an unrelated
Dauphin County case to [a] minimum [of] fifteen (15) months,
maximum [of thirty] (30) months incarceration in a State
Correctional Institution. Subsequently, on November 21, 2013,
[Bell] entered a Guilty Plea in the instant case to one (1) count
of Theft by Unlawful Taking, a Felony of the Second Degree.
After receipt and review of a pre-sentence investigation, the
Court sentenced [Bell] to a minimum [of] fifteen (15) months,
maximum [of] thirty (30) months period of incarceration in a
State Correctional Institution[,] to run consecutive to the
Dauphin County sentence.
1
18 Pa.C.S.A. § 3921.
J-S46040-14
Trial Court Opinion, 3/17/14, at 1. Additionally, Bell was to pay restitution
as to all five counts in the Information. Bell filed a Motion to Reconsider
Sentence, which the trial court denied. Bell then filed a timely Notice of
Appeal. The trial court ordered Bell to file a Pennsylvania Rule of Appellate
Procedure 1925(b) concise statement of matters complained of on appeal.
Bell filed a timely Concise Statement.
[she] was alleging a crime spree being the result of her gambling ad
Brief for Appellant at 6.
Bell challenges the discretionary aspects of her sentence.
An appellant challenging the discretionary aspects of [her]
four-part test:
We 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) wh
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).
***
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. A substantial
question exists only when the appellant advances a colorable
inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the
sentencing process.
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Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)
(quotation marks and some citations omitted).
Here, Bell filed a timely Notice of Appeal, presented her claim in a
Motion to Reconsider the Sentence, and included a Rule 2119(f) Statement
in her brief. Bell claims that she has presented a substantial question
because the trial court failed to consider certain mitigating factors in
imposing the sentence. Brief for Appellant at 8. Bell specifically contends
that her Perry County sentence should have been imposed concurrently with
her Dauphin County sentence because both crimes were a result of her
gambling addiction. Id. She also argues that the trial court should have
considered her age (49), as a long prison term would ultimately harm the
victims to whom she owes restitution. Id.
See
Commonwealth v. Rhoades, 8 A.3d 912, 918-19 (Pa. Super. 2010)
(stating that consideration of mitigating factors does not raise a substantial
question); see also Moury
has discretion to impose sentences consecutively or concurrently, and,
ordinarily, a challenge to this exercise of discretion does not raise a
Moreover, where, as here, the trial court had the
benefit of a pre-
s character and
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Rhoades, 8 A.3d at 919. Accordingly, we are precluded from addressing
See id. (wherein th
discretionary aspects of sentencing claim because a substantial question was
not raised and the trial court had the benefit of a pre-sentence investigation
report).
Appeal dismissed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2014
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