Com. v. Roskos, E.

J-S65035-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

ERICA LYNN ROSKOS,

Appellant No. 318 WDA 2016

Appeal from the Judgment of Sentence February 1, 2016
in the Court of Common Pleas of Mercer County
Criminal Division at No.: CP-43-CR-0000338-2015

BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED AUGUST 22, 2016

Appellant, Erica Lynn Roskos, appeals from the judgment of sentence

imposed following her negotiated open guilty plea to one count of burglary.

She claims her sentence was excessive. We affirm.

On December 23, 2015, Appellant entered a counseled, negotiated

open guilty plea to one count of burglary, a felony of the first degree. There

was no dispute that the standard range for sentencing was twenty-four to

thirty-six months of incarceration, plus or minus twelve months for the

mitigated and aggravated ranges, respectively. (See N.T. Sentencing,

2/01/16, at 9). In exchange for the guilty plea, the Commonwealth agreed

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*
Retired Senior Judge assigned to the Superior Court.
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to nolle pros twelve related charges, as well as all of the charges in

Appellant’s criminal case at Mercer County Docket No. 164 CR 2015.1 A.1

On February 1, 2016, the court imposed a sentence of not less than

five nor more than fifteen years of incarceration in a state correctional

institution, with 410 days credit for time served, plus restitution on all

counts.2 (See id. at 51, 67). The sentencing court noted on the record,

inter alia, that it had reviewed the presentence investigation report (PSI)

and that the sentence was outside of the guidelines. (See id. at 48; 68).

Appellant timely filed a motion to modify sentence, which was confined

exclusively to the claim that her sentence exceeded the aggravated range of

the guidelines. The court denied Appellant’s motion. (See Order, 2/09/16).

This timely appeal followed. (See Notice of Appeal, 2/26/16).

Appellant timely filed a court-ordered concise statement of errors.

(See Statement of Issues Complained of on Appeal, 3/08/16); see also

Pa.R.A.P. 1925(b). The court filed its opinion on April 4, 2016. (See 1925

Opinion, 4/04/16); see also Pa.R.A.P. 1925(a).

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1
The charges that were nolle prossed at 164 CR 2015 included three counts
of burglary, 18 Pa.C.S.A. § 3502(a)(2); three counts of theft by unlawful
taking or disposition, 18 Pa.C.S.A. § 3921(a); three counts of receiving
stolen property, 18 Pa.C.S.A. § 3925(a); and two counts of criminal
conspiracy - burglary, 18 Pa.C.S.A. § 903(a)(1), (2).
2
The court also found that Appellant was RRRI eligible, with an RRRI eligible
sentence of fifty months to fifteen years’ incarceration, also with 410 days of
credit for time served. (See N.T. Sentencing, at 67-68).

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Appellant raises one question for our review:

1. Whether the [t]rial [c]ourt abused its discretion in
giving the Appellant a sentence far outside of the recommended
sentence guidelines?

(Appellant’s Brief, at 5).

Our standard of review for a challenge to the discretionary aspects of a

sentence is well-settled.

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. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)

(citation omitted). Additionally, our review of the discretionary aspects of a

sentence is limited by 42 Pa.C.S.A. §§ 9781(c) and (d). Subsection 9781(c)

provides:

The appellate court shall vacate the sentence and remand the
case to the sentencing court with instructions if it finds:

(1) the sentencing court purported to sentence within
the sentencing guidelines but applied the guidelines
erroneously;

(2) the sentencing court sentenced within the
sentencing guidelines but the case involves circumstances
where the application of the guidelines would be clearly
unreasonable; or

(3) the sentencing court sentenced outside the
sentencing guidelines and the sentence is unreasonable.

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In all other cases the appellate court shall affirm the
sentence imposed by the sentencing court.

42 Pa.C.S.A. § 9781(c).

In reviewing the record, we consider the following factors:

(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.A. § 9781(d).

The right to appeal the discretionary aspects of a sentence
is not absolute. When challenging the discretionary aspects of
the sentence imposed, an appellant must present a substantial
question as to the inappropriateness of the sentence. An
appellant must, pursuant to Pennsylvania Rule of Appellate
Procedure 2119(f), articulate the manner in which the sentence
violates either a specific provision of the sentencing scheme set
forth in the Sentencing Code or a particular fundamental norm
underlying the sentencing process. We examine an appellant’s
Rule 2119(f) statement to determine whether a substantial
question exists. “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.” [ ] (quoting Commonwealth v. Goggins, 748 A.2d
721, 727 (Pa. Super. 2000) (en banc), appeal denied, 563 Pa.
672, 759 A.2d 920 (2000)) (emphasis in original).

Shugars, supra at 1274 (some citations and internal quotation marks

omitted).

Preliminarily, we conclude that Appellant’s supplementary claim that

the sentencing court failed to state sufficient reasons for the sentence on the

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record is waived. Appellant did not raise this issue until filing her Rule

1925(b) statement of errors. (See Statement of Issues Complained of on

Appeal, 3/08/16). “Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a).

[I]ssues challenging the discretionary aspects of
sentencing must be raised in a post-sentence motion or by
raising the claim during the sentencing proceedings. Absent
such efforts, an objection to a discretionary aspect of a sentence
is waived. This failure is not cured by submitting the challenge
in a Rule 1925(b) statement.

Commonwealth v. Watson, 835 A.2d 786, 791 (Pa. Super. 2003)

(citations and internal quotation marks omitted).3

Next, we consider whether Appellant has raised a substantial question.

Appellant filed a timely motion to modify sentence. (See Motion to Modify

Sentence, 2/09/16). Notably, however, the only reason presented in the

motion was that the imposed sentence exceeded “both the standard range

and aggravated range of sentencing recommend by the Pennsylvania

standard sentencing guidelines.” (Id. at ¶ 3).

This Court has accepted a contention that the sentencing court abused

its discretion and imposed an excessive sentence by sentencing outside the

aggravated range of the sentencing guidelines and ignoring mitigating

factors as presenting a substantial question for our review. See
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3
Moreover, Appellant’s claim would fail on the merits. The trial court
explained the reasons for its sentence in painstaking detail. (See N.T.
Sentencing, at 48-60).

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Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012), appeal

denied, 64 A.3d 630 (Pa. 2013).

Here, Appellant does not claim that the court ignored mitigating

factors. Nevertheless, we will give her the benefit of the doubt and treat her

Rule 2119(f) statement as raising a substantial question. Accordingly, we

will review Appellant’s claim on the merits.

However, Appellant’s claim does not merit relief. The only substantive

argument Appellant raises on appeal in support of her claim is that the

sentencing court did not provide sufficient reasons on the record to support

an upward deviation from the Sentencing Guidelines by twelve months.

(See Appellant’s Brief, at 8; see also id. at 7-11).

As already noted, Appellant waived this claim. (See supra at 5).

Moreover, in addition to being waived, the claim is transparently belied by

the record. First, as previously noted, the sentencing court confirmed on the

record that it had the benefit of, and considered, a PSI. (See Trial Ct. Op.,

at 4; N.T. Sentencing, at 7). “Our Supreme Court has determined that

where the trial court is informed by a pre-sentence report, it is presumed

that the court is aware of all appropriate sentencing factors and

considerations, and that where the court has been so informed, its discretion

should not be disturbed.” Commonwealth v. Ventura, 975 A.2d 1128,

1135 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009).

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Secondly, the sentencing court also expressly noted Appellant’s prior

record score of two and offense gravity score of nine. (See Trial Ct. Op., at

3). The court took note of Appellant’s six previous adult arrests and four

convictions. (See id. at 4). The court was mindful that Appellant fled the

jurisdiction (to Georgia) in an attempt to avoid prosecution. (See id. at 5).

The court also considered various impact statements from the victims

and observed that Appellant and her accomplice often burglarized people

they knew, friends and family, including a juvenile who was at home during

one of the burglaries.

Appellant disputes, but fails to develop an argument, or convincingly

refute, the sentencing court’s conclusion that she exhibited “a sparseness of

remorse.” (N.T. Sentencing, at 50). She notes two apology letters and

faults the sentencing court for disregarding them. (See Appellant’s Brief, at

10).

Appellant misapprehends our standard of review, which reviews the

sentence for an abuse of discretion or error of law. We do not re-weigh the

evidence presented to the sentencing court and render a new decision. A

sentence will not be disturbed on appeal absent a manifest abuse of

discretion. 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

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judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a

manifestly unreasonable decision. See Shugars, supra at 1275.

Finally, Appellant challenges the propriety of the trial court judge’s

discussion of his personal experience as a victim of burglary. (See

Appellant’s Brief, at 11). Initially, we note that Appellant concedes counsel

failed to make a timely objection at the sentencing hearing (or in the post-

sentence motion). Therefore, Appellant has waived this claim.

Moreover, while the claim would appear to be an implicit assertion of

bias, Appellant fails to develop an argument in support of this contention, or

offer any authority whatsoever in support of it. Appellant’s argument would

be waived for that reason as well. See Pa.R.A.P. 2119(a), (b).

Thirdly, Appellant has failed to reference where in the record the

judge’s comments occurred. See Pa.R.A.P. 2119(c);4 (see also Appellant’s

Brief, at 11; N.T. Sentencing, at 55-56). It is not the role of this Court to

develop an argument for a litigant, or to scour the record to find evidence to

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4
In pertinent part, Rule 2119 provides:

(c) Reference to record. If reference is made to the
pleadings, evidence, charge, opinion or order, or any other
matter appearing in the record, the argument must set forth, in
immediate connection therewith, or in a footnote thereto, a
reference to the place in the record where the matter referred to
appears (see Pa.R.A.P. 2132).

Pa.R.A.P. 2119(c).

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support an argument. See J.J. DeLuca Co. v. Toll Naval Associates, 56

A.3d 402, 411 (Pa. Super. 2012).

On independent review, it is abundantly clear from context as well as

the judge’s direct statements that he was not “consider[ing his] own

experience as a victim of burglary as a reason to sentence the Appellant

outside of the aggravated range.” (Appellant’s Brief, at 11).

To the contrary, the sentencing judge was responding to frustrations

voiced by the victims at the various delays in this case (including but not

limited to Appellant’s previous entry, withdrawal and re-entry of a guilty

plea). The judge’s comments were an offer of empathy, not a display of

bias.

Here, on independent review, we discern no basis to disturb the

sentence of the court. The trial court properly sentenced Appellant. There is

no abuse of discretion.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/22/2016

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