J-S29032-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
GLENN R. FOSTER :
:
Appellant :
: No. 1573 WDA 2015
Appeal from the Judgment of Sentence September 10, 2015
in the Court of Common Pleas of Mercer County Criminal Division
at No(s): CP-43-CR-0001427-2011
BEFORE: BENDER, P.J.E., PANELLA, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JUNE 17, 2016
Appellant, Glenn R. Foster, appeals from the judgment of sentence
following an open plea of guilty to theft by unlawful taking,1 graded as a
first-degree misdemeanor. Appellant challenges the discretionary aspects of
his sentence. We affirm.
The facts that led to his plea are unnecessary for our disposition. A
presentence investigation was requested. N.T. Guilty Plea Hr’g, 12/4/12, at
14. Appellant absconded and was eventually apprehended. At the
September 10, 2015 sentencing hearing, the court acknowledged reviewing2
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3921(a).
2
The court sentenced numerous defendants that day. Prior to sentencing
Appellant, the court informed all of the defendants of their post-sentence
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Appellant’s file, presentence investigation report, and other relevant
documents. N.T. Sentencing Hr’g, 9/10/15, at 6. The court specifically
acknowledged Appellant’s advanced age, medical issues including cancer,
extensive criminal history, which included twenty-three prior convictions,
and failure to appear for his presentence investigation and sentencing
hearing. Id. at 8-10. The court then sentenced Appellant to sixteen to sixty
months’ imprisonment.
On September 21, 2015, Appellant filed a motion to modify sentence,
which reasoned that his sentence was manifestly excessive and the court
failed to consider his “substantial medical issues.” Mot. to Modify Sentence,
9/21/15, at 1-2. The court denied it the same day. Appellant timely
appealed. On October 13, 2015, the court ordered Appellant to file a
Pa.R.A.P. 1925(b) statement within twenty-one days. Appellant untimely
filed a Rule 1925(b) statement on November 25, 2015, which challenged his
sentence as excessive. The court filed a Rule 1925(a) decision.
Appellant raises the following issue on appeal:
Did the sentence [sic] court abuse its discretion by
imposing a sentence of not less than sixteen (16) nor more
than sixty (60) months for the offense of theft by unlawful
taking, a misdemeanor of the first degree, in that said
sentence is manifestly excessive in length and not
specifically tailored to the rehabilitative needs of the
Appellant or the ends of justice and society?
rights and noted it reviewed every defendant’s file. N.T. Sentencing Hr’g,
9/10/15, at 2-4, 6.
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Appellant’s Brief at 4.
In support of his issue, Appellant argues that he pleaded guilty to theft
by unlawful taking, a first-degree misdemeanor. He points out that with an
offense gravity score of three and with his prior record score of five, the
sentencing guidelines called for six to sixteen months’ imprisonment.
Appellant notes that his minimum sentence of sixteen months’ imprisonment
is at the upper end of the sentencing guidelines. He asserts he has
numerous medical issues and is remorseful. We conclude Appellant is not
due relief.
As a prefatory matter, we acknowledge that Appellant filed his Rule
1925(b) statement late. We decline to find waiver, however, and elect to
address his issue. See Commonwealth v. Burton, 973 A.2d 428, 432-33
(Pa. Super. 2009) (en banc) (holding untimely filing of Rule 1925(b)
statement by counsel is per se ineffective assistance of counsel).
This Court has stated that
[c]hallenges to the discretionary aspects of
sentencing do not entitle an appellant to appellate
review as of right. Prior to reaching the merits of a
discretionary 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
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(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).
Objections to the discretionary aspects of a 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. Evans, 901 A.2d 528, 533-34 (Pa. Super. 2006) (some
citations and punctuation omitted).
[T]he Rule 2119(f) statement must specify where the
sentence falls in relation to the sentencing guidelines and
what particular provision of the Code is violated (e.g., the
sentence is outside the guidelines and the court did not
offer any reasons either on the record or in writing, or
double-counted factors already considered). Similarly, the
Rule 2119(f) statement must specify what fundamental
norm the sentence violates and the manner in which it
violates that norm . . . .
Commonwealth v. Googins, 748 A.2d 721, 727 (Pa. Super. 2000) (en
banc). “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.” Id. at 727. “A claim that a
sentence is manifestly excessive such that it constitutes too severe a
punishment raises a substantial question.” Commonwealth v. Kelly, 33
A.3d 638, 640 (Pa. Super. 2011) (citation omitted).
Instantly, Appellant timely appealed, preserved the issue in the post-
sentence motion, and included a Pa.R.A.P. 2119(f) statement in the brief.
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See Evans, 901 A.2d at 533. We reproduce the entirety of Appellant’s Rule
2119(f) statement below:
Appellant believes that a substantial question is
involved concerning the legality of his sentence because
the sentence [sic] court erred in imposing a sentence of
not less than sixteen (16) nor more than sixty (60) months
of the offense theft by unlawful taking, in that the
sentence was manifestly excessive in length and not
specifically tailored to the rehabilitative needs of the
[A]ppellant or the ends of justice and society.
Appellant’s Brief at 8. Appellant failed to indicate where his sentence fell in
the sentencing guidelines. See Googins, 748 A.2d at 727. Appellant,
however, has asserted that his sentence was excessive and overly severe
under the circumstances. We conclude Appellant has raised a substantial
question. See Kelly, 33 A.3d at 640; see also Evans, 901 A.2d at 533-34.
Accordingly, we examine the merits.
This Court has stated,
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. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation
omitted).
In making a reasonableness determination, a court
should consider four factors:
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(1) The nature and circumstances of the offense and
the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to
observe the defendant, including any presentence
investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d)(1)-(4). A sentence may be found
unreasonable if it fails to properly account for these four
statutory factors. A sentence may also be found
unreasonable if the “sentence was imposed without
express or implicit consideration by the sentencing court of
the general standards applicable to sentencing.” These
general standards mandate that a sentencing court impose
a sentence “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. §
9721(b).
Id. at 190-91 (citation omitted).
“When a sentencing court has reviewed a presentence investigation
report, we presume that the court properly considered and weighed all
relevant factors in fashioning the defendant’s sentence.” Commonwealth
v. Baker, 72 A.3d 652, 663 (Pa. Super. 2013) (citation omitted). As our
Supreme Court explained:
A pre-sentence report constitutes the record and speaks
for itself. In order to dispel any lingering doubt as to our
intention of engaging in an effort of legal purification, we
state clearly that sentencers are under no compulsion to
employ checklists or any extended or systematic
definitions of their punishment procedure. Having been
fully informed by the pre-sentence report, the sentencing
court’s discretion should not be disturbed. This is
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particularly true, we repeat, in those circumstances where
it can be demonstrated that the judge had any degree of
awareness of the sentencing considerations, and there we
will presume also that the weighing process took place in a
meaningful fashion. It would be foolish, indeed, to take
the position that if a court is in possession of the facts, it
will fail to apply them to the case at hand.
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).
Instantly, the sentencing guidelines recommend a minimum sentence
of between six to sixteen months’ imprisonment given Appellant’s prior
record score and the statutory maximum sentence for a first-degree
misdemeanor is sixty months’ imprisonment. See 18 Pa.C.S. § 106.
Appellant’s minimum sentence falls within the upper range of the sentencing
guidelines and his maximum sentence is the statutory limit. The trial court
indicated it evaluated the presentence investigation report, Appellant’s
twenty-three prior convictions, cancer, age, and Appellant’s failure to appear
for his presentence investigation and sentencing. N.T. Sentencing Hr’g at 2-
4, 8-10. Thus, we presume the court properly considered and weighed all
the relevant factors in sentencing Appellant. See Devers, 546 A.2d at 18;
Baker, 72 A.3d at 663. We therefore discern no basis to disturb the court’s
sentence, see Sheller, 961 A.2d at 190, and affirm the judgment of
sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/17/2016
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