Com. v. Lenkiewicz, M.

J-S36016-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

MATTHEW M. LENKIEWICZ

Appellant No. 1417 WDA 2014

Appeal from the Judgment of Sentence July 1, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0002533-2014
CP-02-CR-0002534-2014
CP-02-CR-0002557-2014
CP-02-CR-0003327-2014

BEFORE: PANELLA, J., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY JENKINS, J.: FILED JULY 06, 2015

Appellant Matthew M. Lenkiewicz (“Appellant”) appeals from the July

1, 2014 judgment of sentence in the Allegheny County Court of Common

Pleas following his guilty plea for three counts of robbery (inflicts serious

bodily injury)1 at Docket Nos. CP-02-CR-0002533-2014, CP-02-CR-0002534-

2014, and CP-02-CR-0002557-2104, and one count of robbery (inflicts

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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 3701(a)(1)(i).
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bodily injury)2 and two counts of robbery (threatens serious bodily injury)3

at Docket No. CP-02-CR-0003327-2014. We affirm the judgment of

sentence.

After police apprehended him for a six-day crime spree, Appellant

pleaded guilty to the above-referenced crimes on July 1, 2014. The trial

court sentenced him the same day as follows: Docket No. CP-02-CR-

0002533-2014: 2.5 to 5 years’ incarceration for robbery (inflicts serious

bodily injury); Docket No. CP-02-CR-0002534-2014: 2.5 to 5 years’

incarceration for robbery (inflicts serious bodily injury), consecutive to the

sentence imposed at Docket No. CP-02-CR-0002533-2014; Docket No. CP-

02-CR-0003327-2014: 2.5 to 5 years’ incarceration for robbery (inflicts

bodily injury), and 3 years’ probation for robbery (threatens serious bodily

injury), consecutive to the sentence imposed at Docket No. CP-02-CR-

0002534-2014; Docket No. CP-02-CR-0002557-2014: 10 months’ to five

years’ incarceration for robbery (inflicts serious bodily injury), consecutive to

the sentence imposed at Docket No. CP-02-CR-0003327-2014.

Appellant filed a motion to reconsider sentence on July 2, 2014, which

the trial court denied on July 23, 2014. Appellant timely filed a notice of

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2
18 Pa.C.S. § 3701(a)(1)(iv).
3
18 Pa.C.S. § 3701(a)(1)(ii).

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appeal on August 22, 2014. Both Appellant and the trial court complied with

Pa.R.A.P. 1925.

Appellant raises a single issue for our consideration:

I. Did the trial court abuse its discretion at sentencing by failing
to sufficiently consider [Appellant’s] history, character, condition,
and rehabilitative needs, as required by 42 Pa.C.S. § 9721(b)
and 42 Pa.C.S. § 9725?

Appellant’s Brief, p. 9 (all capitals removed).

This claim raises a challenge to the discretionary aspects of Appellant’s

sentence. “Challenges to the discretionary aspects of sentencing do not

entitle a petitioner to review as of right.” Commonwealth v. Allen, 24

A.3d 1058, 1064 (Pa.Super.2011). Before this Court can address such a

discretionary challenge, an appellant must satisfy the following four-part

test:

(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.

Allen, 24 A.3d at 1064. “The determination of whether a particular issue

raises a substantial question is to be evaluated on a case-by-case basis.”

Commonwealth v. Fiascki, 886 A.2d 261, 263 (Pa.Super.2005).

“Generally, however, in order to establish a substantial question, the

appellant must show actions by the sentencing court inconsistent with the

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Sentencing Code or contrary to the fundamental norms underlying the

sentencing process.” Commonwealth v. Titus, 816 A.2d 251, 255

(Pa.Super.2003).

Here, Appellant filed a timely notice of appeal, and preserved his

issues in a motion for reconsideration of sentence. Further, Appellant’s brief

includes a statement of the reasons relied upon for allowance of appeal

pursuant to Pa.R.A.P. 2119(f). See Appellant’s Brief, pp. 16-20.

Accordingly, we now determine whether Appellant has raised a substantial

question for review and, if so, proceed to a discussion of the merits of the

claim. See Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki, 522 A.2d

17 (Pa.1987).

“A substantial question will be found where the defendant advances a

colorable argument that the sentence imposed is either inconsistent with a

specific provision of the [sentencing] code or is contrary to the fundamental

norms which underlie the sentencing process.” Commonwealth v.

Christine, 78 A.3d 1, 10 (Pa.Super.2013) (internal citations omitted); see

also 42 Pa.C.S. § 9781(b). “We determine whether a particular case raises a

substantial question on a case-by-case basis.” Id. A bald or generic

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.; see also Commonwealth v. Harvard, 64 A.3d 690, 701

(Pa.Super.2013). Additionally, “[t]his Court has held on numerous occasions

that a claim of inadequate consideration of mitigating factors does not raise

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a substantial question for our review.” Commonwealth v. Disalvo, 70

A.3d 900, 903 (Pa.Super.2013); see also Commonwealth v. Ratushny,

17 A.3d 1269, 1273 (Pa.Super.2011) (“argument that the sentencing court

failed to adequately consider mitigating factors in favor of a lesser sentence

does not present a substantial question appropriate for our review.”);

Commonwealth v. Ladamus, 896 A.2d 592, 595 (Pa.Super.2006)

(“[A]ppellant’s contention that the trial court did not adequately consider a

mitigating circumstance when imposing sentence does not raise a

substantial question sufficient to justify appellate review of the merits of

such claim.”); Commonwealth v. Coolbaugh, 770 A.2d 788, 793

(Pa.Super.2001) (“Appellant’s claim that the court did not consider his

personal life situation of having a drug problem does not raise a substantial

question”); Commonwealth v. Urrutia, 653 A.2d 706, 710

(Pa.Super.1995) (“an allegation that a sentencing court ‘failed to consider’

or ‘did not adequately consider’ certain factors does not raise a substantial

question that the sentence was inappropriate”); Commonwealth v.

Lawson, 650 A.2d 876, 881 (Pa.Super.1995) (claim that trial court ignored

rehabilitative needs in imposing sentence does not constitute a substantial

question for review); Commonwealth v. Bershad, 693 A.2d 1303, 1309

(Pa.Super.1997) (claim that trial court did not give adequate consideration

to rehabilitative needs does not present a substantial question);

Commonwealth v. Williams, 562 A.2d 1385, 1387-88 (Pa.Super.1989)

(claim that trial court should have imposed a lesser, more appropriate

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sentence in light of the defendant’s poor health and family situation

constituted a request that this Court substitute its judgment regarding an

appropriate sentence, which does not raise a substantial question).

Additionally, “a claim of excessiveness that is raised against a sentence

within the statutory limits fails to raise a substantial question as a matter of

law.” Commonwealth v. Mouzon, 812 A.2d 617, 623 (Pa.2002).

Here, Appellant alleges that the trial court imposed an unreasonable

sentence because it failed to properly consider certain alleged mitigating

factors. See Appellant’s Brief, pp. 19-20. Appellant does not argue that the

sentencing court relied upon any impermissible factors in sentencing, relied

solely on the severity of the crime committed, or sentenced beyond

statutory limits. Instead, he alleges that the sentencing court failed to

adequately consider certain mitigating factors4 in imposing its sentence.

Accordingly, Appellant does not raise a substantial question for review.5, 6
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4
Specifically, Appellant’s history, character, condition, and rehabilitative
needs. See Appellant’s Brief, p. 19.
5
We acknowledge that “a substantial question exists when a sentencing
court imposed a sentence in the aggravated range without considering
mitigating factors.” Commonwealth v. Rhoades, 8 A.3d 912, 919 n.12
(Pa.Super.2010) (citing Commonwealth v. Felmlee, 828 A.2d 1105, 1107
(Pa.Super.2003) (emphasis in original). However, in this case, the trial
court sentenced Appellant within the mitigated range of the sentencing
guidelines, as discussed infra.
6
To the extent Appellant’s issue can be read to claim relief is warranted by
virtue of the individual sentences being imposed consecutively, such a claim
does not raise a substantial question for our review. See Commonwealth
(Footnote Continued Next Page)

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Even had Appellant stated a substantial question for review, we would

affirm on the merits. We review discretionary aspects of sentence claims

under the following standard of review:

If this Court grants appeal and reviews the sentence, the
standard of review is well-settled: sentencing is vested in the
discretion of the trial court, and will not be disturbed absent a
manifest abuse of that discretion. An abuse of discretion
involves a sentence which was manifestly unreasonable, or
which resulted from partiality, prejudice, bias or ill will. It is
more than just an error in judgment.

Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 (Pa.Super.2006)

(citations omitted).

Our review of the sentencing transcript reveals that the lower court did

not abuse its discretion. See generally N.T. 7/1/2014. Instead, the trial

court imposed a sentence that was consistent with the protection of the

public, took into account the gravity of the offense as it related to the impact

on the life of the victim and on the community, and considered the

Appellant’s rehabilitative needs, as required by 42 Pa.C.S. § 9721(b). Id.

In imposing sentence, the trial court considered Appellant’s age, level

of education and criminal background, the circumstances of the crimes, the

sentencing guidelines, Appellant’s allocution, the arguments of counsel, and

_______________________
(Footnote Continued)

v. Marts, 889 A.2d 608, 612 (Pa.Super.2005) (claims that the consecutive
nature of sentences violated the Sentencing Code also fail to raise a
substantial question).

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the many mitigating factors Appellant alleged it ignored. See N.T.

7/1/2014, pp. 3-17; see also 1925(a) Opinion, filed February 27, 2015, p.

5. As the court explained:

When imposing a sentence, this [c]ourt is required to consider,
among other things, the protection of the public, the gravity of
the offence [sic] in relation to the impact on the victims and
community and the rehabilitative needs of the defendant. 42
Pa.C.S. § 9721(b). this [c]ourt considered Appellant’s addition
and need for treatment. However, this [c]ourt must also
consider the fact that, even though Appellant’s actions were
likely based on his heroin addiction, he nonetheless went on a
six[-]day crime spree involving six victims of felony robberies.
Appellant[,] through his violent conduct[,] not only established
his need for rehabilitation and treatment, but also the
community’s need to be protected from him. All sentences
imposed by this [c]ourt were at or below the mitigated range of
the Sentencing Guidelines. Appellant is not entitled to a volume
discount at sentencing. Commonwealth v. Robinson, 931
A.2d 15, 24-25 (Pa.Super.2007).

Id. Additionally, the court sentenced Appellant to sentences at or below the

mitigated range and well within the statutory maximums. See id. at 2-3;

N.T. 7/1/2014, pp. 16-17. See Commonwealth v. Moury, 992 A.2d 162,

171 (Pa.Super.2010) (“[W]here a sentence is within the standard range of

the guidelines, Pennsylvania law views the sentence as appropriate under

the Sentencing Code.”). Accordingly, in addition to failing to raise a

substantial question for review, Appellant’s excessiveness claim fails on the

merits.

Judgment of sentence affirmed.

Judgment Entered.

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Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/6/2015

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