J-S54023-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
STEPHEN CLAYTON EDINGER
Appellant No. 1874 WDA 2015
Appeal from the Judgment of Sentence October 26, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000997-2015
BEFORE: BENDER, P.J.E., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED JULY 26, 2016
Stephen Clayton Edinger appeals from the judgment of sentence
entered October 26, 2015 in the Erie County Court of Common Pleas, made
final by denial of post-sentence motions on October 28, 2015. The trial court
sentenced Edinger to a term of 6 to 12 years’ imprisonment with 237 days
credit, followed by 1 year of probation after his open guilty plea to
manufacturing a controlled substance and possession of drug paraphernalia.1
On appeal, Edinger argues the trial court imposed an excessive and
unreasonable sentence in failing to consider mitigating circumstances. For
the reasons set forth below, we affirm the judgment of sentence.
____________________________________________
1
35 Pa.C.S. §§ 780-113(a)(30) and 780-113(a)(32), respectively.
J-S54023-16
The trial court described the procedural history as follows:2
On September 8, 2015, [Edinger] entered a guilty plea to
possession with intent to deliver (“PWID”) and possession of
drug paraphernalia, as part of a negotiated plea agreement. The
remaining counts were nolle prossed. On October 26, 2015,
[Edinger] was sentenced to the following:
Count 5: 72 months to 144 months of incarceration with
237 days credit, concurrent with any sentence(s) [Edinger]
is currently serving; and
Count 6: 12 months of state supervised probation,
consecutive to Count 5 above.
On October 28, 2015 [Edinger] filed a Motion for
Reconsideration/Modification of Sentence, which was denied by
Order dated October 28, 2015.
On November 25, 2015, [Edinger] filed a Notice of Appeal and
Concise Statement of Matters Complained of on Appeal, in which
he argued his sentence is “manifestly excessive, clearly
unreasonable and inconsistent with the objectives of the
Sentencing Code,” pointing to various mitigating factors.
Trial Court Opinion, 2/13/2016 at 1 (footnote omitted).3
The only issue in Edinger’s brief represents a challenge to the
discretionary aspects of Edinger’s sentence.4 “A challenge to the
____________________________________________
2
Edinger’s arrest stems from his own 9-1-1 call on January 24, 2015. Police
responded to the call and arrived on the scene, where Edinger was
incoherent. The location appeared to be a methamphetamine lab. N.T.,
8/17/2015 at 20-23.
3
Edinger filed a concise statement of matters complained of on appeal
pursuant to Pa.R.A.P. 1925(b) on November 25, 2015.
-2-
J-S54023-16
discretionary aspects of a sentence must be considered a petition for
permission to appeal, as the right to pursue such a claim is not absolute.”
Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa. Super. 2007 (citation
omitted). In order to reach the merits of such a claim, this Court must
determine:
(1) Whether appellant has filed a timely notice of appeal; (2)
whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence; (3) whether
appellant’s brief has a fatal defect; and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011)
(footnotes omitted). Here, Edinger filed a timely post-sentence motion
challenging the discretionary aspects of his sentence, as well as a timely
notice of appeal. Edinger’s Brief includes the requisite statement, pursuant
to Pa.R.A.P. 2119(f), setting forth the reasons relied upon for allowance of
appeal. Therefore, we may proceed to determine whether Edinger has set
forth a substantial question that his sentence is inappropriate under the
Sentencing Code. See Commonwealth v. Titus, 816 A.2d 251, 255 (Pa.
Super. 2003).
_______________________
(Footnote Continued)
4
“Sentencing is a matter vested in the sound discretion of the judge, and
will not be disturbed on appeal absent a manifest abuse of discretion.”
Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation
omitted), appeal denied, 980 A.2d 607 (Pa. 2009).
-3-
J-S54023-16
Instantly, the trial court asserts Edinger’s claim that the trial court
failed to consider mitigating factors is insufficient to state a substantial
question. See Commonwealth v. McNabb, 819 A.2d 54, 57 (Pa. Super.
2003). However, we recognize a substantial question exists when an
appellant sets forth 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 underlying the sentencing process.”
Commonwealth v. Bentura, 975 A.2d 1128, 1133 (Pa. Super. 2009).
Pursuant to Commonwealth v. Samuel, 102 A.3d 1001 (Pa. Super. 2014)
(a claim of an excessive sentence due to failure to consider mitigating
factors raises a substantial question), we find Edinger has raised a
substantial question.
Although Edinger has raised a substantial question, our review
demonstrates his claims are not supported by the certified record. Edinger
argues that he deserves a mitigated sentence because he manufactured the
drugs for himself and clearly did not intend to distribute them, and because
his prior sexual offenses should have minimal bearing on this drug-related
case. Edinger’s Brief at 4-6. “[Edinger] argues his prior record score (“PRS”)
of five is due in large part to ‘several Statutory Sexual Assault convictions
from 2008 and 2009’ unrelated to the current offense and his prior
conviction for [possession with intent to distribute] was a result of a severe
drug addiction.” Trial Court Opinion, 1/13/2016 at 4. Implicitly, Edinger
-4-
J-S54023-16
argues that because the crimes he has plead guilty to here are not sexual in
nature, his previous sexual offenses should have a minimal impact on his
sentence. Edinger claims neither the nature of his previous convictions nor
the personal nature of his drug activity were considered by the trial court in
its ultimate judgment of sentence.5 Edinger’s Brief at 5-6.
With respect to his prior sexual offenses, the Pennsylvania Sentencing
Guideline used by the trial court is comprised of a Prior Record Score and
Offense Gravity Score. The Prior Record Score is based on the number of
prior convictions and whether past convictions were felonies or
misdemeanors, but does not distinguish between past convictions as drug,
sexual, or violent offenses. The Offense Gravity Score, however, does take
into account the nature of the crime. The Pennsylvania Sentencing Guideline
matrix does not require the trial court to take into consideration the natures
of Edinger’s previous offenses. Additionally, no other authority mandates this
consideration. Nevertheless, the trial court specifically stated to Edinger:
Then I have to balance [your young age and guilty plea] with
your criminal record, which starts in the adult system in 2003.
And you have a variety of convictions at Clarion County,
Armstrong County, Allegheny County, and Erie County, and
those include separate sexual assault, statutory sexual assaults,
convictions involving minors[,] and I recognize this is – the
____________________________________________
5
We note here that Edinger’s sentence was at the bottom end of the
standard range for his Offense Gravity Score of 11 and Prior Record Score of
5, which is 6 to 7 ½ years’ imprisonment. See 204 Pa.Code § 303.16(a).
-5-
J-S54023-16
present offense is not of sexual nature. But it is concerning
that you had the possession with intent to deliver heroin
conviction for which you were sentenced in May of 2012, and I’m
not sure what credit you got on that, but it appears you may
have been on supervision at that sentence when [you]
committed this offense.
N.T., 10/26/2015 at 10 (emphasis added).
With respect to Edinger’s personal use of the drugs he manufactured,
the trial court told Edinger at his sentencing, “[h]eroin kills people every day
of the week somewhere, and you’re not too far removed from being
sentenced on that and now you’re involved in the manufacture of another
deadly substance which puts yourself and other people at risk.” Id. at 11.
In further explaining its decision, the trial court stated:
[Edinger]’s argument that a mitigated range sentence is
warranted because he was manufacturing the methamphetamine
for his own personal use to support his addiction is also
unpersuasive. While the Court accepts [Edinger]’s addictive
conduct, which may serve to explain [Edinger]’s behavior, it
does not justify it. The manufacturing of methamphetamine is a
hazardous, dangerous undertaking. It does not just endanger
the person making the drugs, but the surrounding area and the
community at large.
Trial Court Opinion, 1/13/2016 at 4. Accordingly, the certified record belies
Edinger’s claim that the trial court failed to consider appropriate mitigating
factors.
-6-
J-S54023-16
Our review of the record demonstrates the trial court fulfilled its duty
in considering all the proper factors, and did not abuse its discretion in
sentencing Edinger to 6 to 12 years’ imprisonment.6
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/26/2016
____________________________________________
6
Our review of the certified record leads us to express our concern about
the sufficiency of the guilty plea colloquy, which addressed only one of six
questions listed in the Comment to Pa.R.Crim.P. 590 (“Is the defendant
aware of the permissible range of sentences and/or fines for the offenses
charged?”). The trial court also incorrectly informed Edinger that his
maximum sentence for Count 5 was 10 years’ imprisonment pursuant to 35
Pa.C.S. § 780-113(f)(1.1). N.T., 9/8/2015 at 8. However, in accordance with
§ 780-115(a), Edinger’s actual maximum sentence was 20 years’
imprisonment. We remind the trial court, prosecution, and defense counsel
of the importance of having a complete colloquy and record thereof. The fact
that Edinger has not complained of the completeness of the guilty plea
colloquy does not alleviate our concern.
-7-