J-S27021-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
AMANDA E. BECKER
Appellant No. 1626 MDA 2015
Appeal from the Judgment of Sentence August 19, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0001807-2014
CP-36-CR-0001810-2014
CP-36-CR-0001811-2014
BEFORE: SHOGAN, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 22, 2016
This is an appeal from the judgment of sentence entered in the Court
of Common Pleas of Lancaster County following Appellant’s open guilty plea
to two counts of aggravated assault, and one count each of aggravated
harassment, resisting arrest, disorderly conduct, and theft by unlawful
taking.1 On appeal, Appellant challenges the discretionary aspects of her
sentence. We affirm.
The relevant facts and procedural history have been aptly set forth by
the trial court, in part, as follows:
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1
18 Pa.C.S.A. §§ 2702(a)(3), 2703.1, 5104, 5503(a)(2), and 3921(a),
respectfully.
*Former Justice specially assigned to the Superior Court.
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On April 3, 2014, [Appellant] stole a 1998 Dodge Grand
Caravan that belonged to the father of a friend with whom she
had stayed for several nights, resulting in a charge of [t]heft by
[u]nlawful [t]aking (F-3) on Docket 1811-2014.
At the preliminary arraignment, bail was set for this charge
and, being unable to make bail, [Appellant] was remanded to the
Lancaster County Prison[.] She subsequently became combative
and violent when police [officers] attempted to put her in the
patrol unit, and she kicked an officer in the right leg. This
resulted in a new charge of [a]ggravated [a]ssault (F-4) on
Docket 1807-2014.
The four charges on Docket 1810-2014 stem from the
following series of incidents. [Appellant], while being
interviewed on March 27, 2014, as a potential witness in an
animal attack investigation, became belligerent and
uncooperative and, upon being advised to relax, continued to
yell and scream. [The] [p]olice soon determined that
[Appellant] had two summary warrants through the Lancaster
City Police and was taken into custody. Upon being taken into
custody, [Appellant] became violent and combative. When
officers attempted to place [Appellant] in a police car, she
continued to resist, kicking one of the officers in the right leg
several times. After continuing to kick and flail, police [officers]
finally succeeded in restraining [Appellant] by using leg
restraints and a hobble device. Finally, following her arrival at
the Ephrata Police Department, she spit in another officer’s face.
Trial Court Opinion, filed 11/10/15, at 1-3 (footnotes and citations to record
omitted).
The trial court consolidated the charges, and on September 17, 2014,
Appellant pled into the Lancaster County Mental Health Court Program
(“Mental Health Court Program”). Specifically, on September 17, 2014, she
pled guilty to theft by unlawful taking on Docket 1811-2014, and she was
placed on probation for five years with numerous conditions, including
successful completion of the Mental Health Court Program. On Docket 1807-
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2014, she pled guilty to one count of aggravated assault, and on Docket
1810-2014, she pled guilty to four offenses, including aggravated assault,
aggravated harassment, resisting arrest, and disorderly conduct.
Sentencing was deferred on the charges at Dockets 1807-2014 and 1810-
2014 pending Appellant’s successful completion of the Mental Health Court
Program.
Thereafter, Appellant did not successfully complete the Mental Health
Court Program, and in fact, she absconded. Appellant was eventually
apprehended and discharged from the Mental Health Court Program. At the
time of the discharge, the trial court ordered a pre-sentence investigation
report.
Following a sentencing hearing on August 19, 2015, at which Appellant
was represented by counsel, the trial court sentenced Appellant as follows:
On Docket 1807-2014, as to aggravated assault, ten months to two years in
prison. On Docket 1810-2014, as to count one, aggravated assault, ten
months to two years in prison, to run consecutively to the sentence imposed
on Docket 1807-2014; as to count two, aggravated harassment, ten months
to two years in prison, to run consecutively to the sentence imposed on
count one of Docket 1810-2014 and Docket 1807-2014; as to count three,
resisting arrest, and count four, disorderly conduct, costs only. On Docket
1811-2014, as to theft by unlawful taking, one year to two years in prison,
to run concurrently with the other sentences. The resulting aggregate
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sentence was two and one-half years to six years in prison. The trial court
gave Appellant credit for all time served.
On August 27, 2015, Appellant filed a timely, counseled post-sentence
motion in which she preserved her challenge to the imposition of consecutive
sentences by alleging “the imposition of the consecutive sentences is
excessive, in light of the fact that [Appellant] has already spent nearly 10
months incarcerated in Lancaster County Prison prior to and during her
participation in Mental Health Court.” Appellant’s Post-Sentence Motion,
filed 8/27/15.
By order entered on September 1, 2015, the trial court denied
Appellant’s post-sentence motion, and this timely appeal followed. The trial
court directed Appellant to file a Pa.R.A.P. 1925(b) statement, Appellant
timely complied, and the trial court filed a responsive Pa.R.A.P. 1925(a)
opinion.
On appeal, Appellant challenges the discretionary aspects of her
sentence. A challenge to the discretionary aspects of sentencing is not
automatically reviewable as a matter of right. Commonwealth v. Hunter,
768 A.2d 1136 (Pa.Super. 2001). Prior to reaching the merits of a
discretionary sentencing issue:
We 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
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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) (citations
omitted).
In the instant case, Appellant filed a timely notice of appeal and a
timely post-sentence motion. She also included a separate Pa.R.A.P.
2119(f) statement in her appellate brief. As to whether Appellant has
presented a substantial question, we must examine the specific sentencing
issue raised by Appellant.
In her Pa.R.A.P. 2119(f) statement, Appellant alleges “the trial court’s
cumulative sentence of two and one-half to six years incarceration was
clearly unreasonable and so manifestly excessive as to constitute an abuse
of discretion.”2 Appellant’s Brief at 8 (citations omitted).
It is well-settled that:
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2
To the extent Appellant suggested in her Pa.R.A.P. 2119(f) statement that
the imposition of consecutive sentences raised a substantial question since
the sentence was not consistent with the factors set forth in 42 Pa.C.S.A. §
9721, this argument is waived since it was not presented to the sentencing
court in the post-sentence motion or during Appellant’s sentencing hearing.
See Commonwealth v. Griffin, 65 A.3d 932 (Pa.Super. 2013) (discussing
preservation of discretionary aspects of sentencing claims). Moreover,
Appellant’s attempt to preserve this specific issue in her court-ordered
Pa.R.A.P. 1925(b) statement is unavailing. Commonwealth v. McAfee,
849 A.2d 270, 275 (Pa.Super. 2004) (holding the failure to preserve specific
discretionary aspects of sentencing claims in post-sentence motions or at the
sentencing hearing may not be cured by raising the claim for the first time in
a Pa.R.A.P. 1925(b) statement).
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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
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.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010) (citation,
quotation marks, and quotation omitted).
With regard to the imposition of consecutive sentences, which resulted
in Appellant’s cumulative sentence of two and one-half to six years
incarceration, this Court has held:
A court's exercise of discretion in imposing a sentence
concurrently or consecutively does not ordinarily raise a
substantial question. Commonwealth v. Mastromarino, 2
A.3d 581, 587 (Pa.Super. 2010)[.] Rather, the imposition of
consecutive rather than concurrent sentences will present 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. Lamonda, 52 A.3d 365,
372 (Pa.Super. 2012)[(en banc)].
[An appellant] may raise a substantial question
where [s]he receives consecutive sentences within
the guideline ranges if the case involves
circumstances where the application of the guidelines
would be clearly unreasonable, resulting in an
excessive sentence; however, a bald claim of
excessiveness due to the consecutive nature of a
sentence will not raise a substantial question.
Commonwealth v. Swope, 123 A.3d 333, 338-39 (Pa.Super. 2015)
(quotation omitted). As this Court has emphasized, “the key to resolving
the preliminary substantial question inquiry is whether the decision to
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sentence consecutively raises the aggregate sentence to, what appears upon
its fact to be, an excessive level in light of the criminal conduct at issue in
the case.” Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super. 2011)
(quotation marks and quotation omitted).
In the case sub judice, as the Commonwealth cogently argues in its
appellate brief, Appellant’s preserved challenge to the imposition of
consecutive sentences does not raise a substantial question permitting our
review. See Commonwealth’s Brief at 7-8. Simply put, Appellant has not
framed and preserved her issue in a manner that suggests the trial court’s
decision to impose consecutive sentences “raises the aggregate sentence to,
what appears on its face to be, an excessive level in light of the criminal
conduct at issue in this case.” Prisk, 13 A.3d at 533 (quotation marks and
quotation omitted). Accordingly, we conclude Appellant has not raised a
substantial question permitting our review as to the trial court’s imposition
of consecutive sentences. 3
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We note that, in her post-sentence motion, Appellant also averred
“[Appellant] has struggled with mental health issues from an early age, and
desires to seek serious treatment in a long-term inpatient mental health
facility as opposed to a State Correctional Institution.” Id. This averment
does not present a cogent issue concerning the trial court’s exercise of
discretion in imposing Appellant’s sentence. To the extent Appellant was
attempting to argue the trial court did not adequately consider the mitigating
factor of her mental health in imposing jail time, as she suggested on
appeal, such would not present a substantial question. See
Commonwealth v. Berry, 785 A.2d 994 (Pa.Super. 2001) (holding
(Footnote Continued Next Page)
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For all of the foregoing reasons, we affirm.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/22/2016
_______________________
(Footnote Continued)
allegation the trial court failed to consider a certain mitigating factor
adequately does not raise a substantial question).
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