J-S65026-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EARL L. LINT, JR.,
Appellant No. 166 WDA 2016
Appeal from the Judgment of Sentence of January 20, 2016
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0001669-2015
BEFORE: LAZARUS, OLSON AND PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 02, 2016
Appellant, Earl L. Lint, Jr., appeals from the judgment of sentence
entered on January 20, 2016, as made final by the denial of Appellant’s
post-sentence motion on January 26, 2016. We affirm.
A jury found Appellant guilty of one count of forgery and two counts of
receiving stolen property.1 On January 20, 2016, the trial court sentenced
Appellant to serve a term of 12 to 60 months in prison for the forgery
conviction.2 The sentence fell within the aggravated range of the sentencing
guidelines. See N.T. Sentencing Hearing, 1/20/16, at 4. Further, during the
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1
18 Pa.C.S.A. §§ 4101(a)(2) and 3925(a), respectively.
2
The trial court imposed no further penalty on the receiving stolen property
convictions.
*Retired Senior Judge assigned to the Superior Court.
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sentencing hearing, the trial court explained the reasons why it sentenced
Appellant in the aggravated range. As the trial court declared:
We’ve imposed this sentence in the aggravated range as the
standard range is less than [12] months and we’ve done so
due to the failure of prior rehabilitative efforts on behalf of
[Appellant], him having at least five prior theft related
offenses. We’ve also sentenced in the aggravated range
because this offense was committed while [Appellant] was
on parole for a theft offense.
[Appellant], we’ve taken into consideration the nature of
this offense, the seriousness of forgery, a felony of the
second degree, punishable by a term of imprisonment of up
to [10] years and a fine of up to $25,000.00. We’ve
considered the number of offenses to which you’ve been
found guilty. We’ve considered a presentence report
prepared by the Adult Probation office. We’ve considered
your prior record, your rehabilitative needs and the gravity
of this offense and we feel a lesser sentence would
depreciate from the seriousness of this crime. The [trial]
court feels you are in need of correctional treatment that
could be provided most effectively by your commitment to
an institution.
N.T. Sentencing Hearing, 1/20/16, at 4-5.
On January 21, 2016, Appellant filed a timely post-sentence motion,
wherein Appellant claimed that the trial court abused its discretion at
sentencing because: the “sentence is harsh, severe, and excessive in view
of the circumstances surrounding this matter” and because “the Court stated
no articulate reasons for sentencing [Appellant] in the aggravated range of
the guidelines.” Appellant’s Post-Sentence Motion, 1/21/16, at 1. The trial
court denied Appellant’s post-sentence motion on January 26, 2016 and
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Appellant filed a timely notice of appeal. On appeal, Appellant raises one
claim:
Whether or not the sentence of [one to five years,] imposed
by the trial court[,] was excessive considering the
circumstances of the case?
Appellant’s Brief at 7.3
Appellant’s claim on appeal is a challenge to the discretionary aspects
of his sentence. “[S]entencing is a matter vested in the sound discretion of
the sentencing judge, whose judgment will not be disturbed absent an abuse
of discretion.” Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa.
Super. 2001). Moreover, pursuant to statute, Appellant does not have an
automatic right to appeal the discretionary aspects of his sentence. See 42
Pa.C.S.A. § 9781(b). Instead, Appellant must petition this Court for
permission to appeal the discretionary aspects of his sentence. Id.
As this Court explained:
[t]o reach 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, Pa.R.A.P. 902,
903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify
sentence, Pa.R.Crim.P. 720; (3) whether appellant’s brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there
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3
The trial court ordered Appellant to file and serve a concise statement of
errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). Appellant complied with the order and, within his Rule
1925(b) statement, Appellant listed the same issue he currently raises on
appeal. See Appellant’s Rule 1925(b) Statement, 2/5/16, at 1.
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is a substantial question that the sentence appealed from is
not appropriate under the Sentencing Code, [42 Pa.C.S.A.]
§ 9781(b).
Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).
In the case at bar, Appellant filed a timely post-sentence motion and
notice of appeal. Moreover, while Appellant’s brief does not contain “a
concise statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of a sentence,” the Commonwealth
failed to object to the omission. See Pa.R.A.P. 2119(f). Therefore, this
Court “may ignore the omission and determine if there is a substantial
question that the sentence imposed was not appropriate.” Commonwealth
v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004).
Within Appellant’s post-sentence motion, Appellant claimed that the
trial court abused its discretion at sentencing because: the “sentence is
harsh, severe, and excessive in view of the circumstances surrounding this
matter” and because “the Court stated no articulate reasons for sentencing
[Appellant] in the aggravated range of the guidelines.” Appellant’s Post-
Sentence Motion, 1/21/16, at 1.4 See Appellant’s Post-Sentence Motion,
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4
Within Appellant’s brief to this Court, Appellant also argues that the trial
court relied upon impermissible factors when sentencing Appellant to an
aggravated range sentence. See Appellant’s Brief at 11-12. This claim is
waived, as Appellant failed to raise the claim at sentencing, in his post-
sentence motion, in his Rule 1925(b) statement, or in his Rule 2116
“statement of questions involved.” Commonwealth v. Losch, 535 A.2d
115, 118 n.6 (Pa. Super. 1987) (“[a]n objection to a discretionary aspect of
a sentence is clearly waived if it was neither raised at the sentencing hearing
nor raised in a motion to modify the sentence imposed at that hearing”)
(Footnote Continued Next Page)
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1/21/16, at 1. Appellant has not raised the latter claim on appeal. Further,
within Appellant’s post-sentence motion and Rule 1925(b) statement,
Appellant identified no particular “circumstances surrounding this matter”
that, allegedly, caused his sentence to be excessive. See id. Moreover, the
trial court apparently did not understand Appellant’s claim, as the trial court
did not identify or discuss any such “circumstances” in its opinion to this
Court. See Trial Court Opinion, 2/8/16, at 1-4.
As this Court has explained:
An appellant's concise statement must properly specify the
error to be addressed on appeal. In other words, the Rule
1925(b) statement must be specific enough for the trial
court to identify and address the issue an appellant wishes
to raise on appeal. A concise statement which is too vague
to allow the court to identify the issues raised on appeal is
the functional equivalent of no concise statement at all. The
court's review and legal analysis can be fatally impaired
when the court has to guess at the issues raised. Thus, if a
concise statement is too vague, the court may find waiver.
Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super. 2011) (internal
quotations, citations, and corrections omitted).
In the case at bar, Appellant’s bald claim of excessiveness in both his
post-sentence motion and Rule 1925(b) statement was “too vague to allow
the [trial] court to identify the issues raised on appeal.” See id. Therefore,
_______________________
(Footnote Continued)
(internal quotations and citations omitted); Pa.R.A.P. 1925(b)(4)(vii)
(“[i]ssues not included in the [Rule 1925(b)] Statement . . . are waived”);
Pa.R.A.P. 2116(a) (“[n]o question will be considered unless it is stated in the
statement of questions involved or is fairly suggested thereby”).
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Appellant’s discretionary aspect of sentencing claim is waived on appeal.5
Id.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/2/2016
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5
We note that, even if Appellant had not waived his current claim on appeal,
we would conclude that Appellant’s claim does not raise a substantial claim
that his sentence was inappropriate under the Sentencing Code. Within
Appellant’s brief to this Court, Appellant claims that his aggravated range
sentence is excessive solely because his forgery conviction was “for a check
that was $580.00 in value.” Appellant’s Brief at 11. Appellant’s claim does
not raise a substantial question, as it does not raise a “plausible argument
that [the] sentence is contrary to the Sentencing Code or the fundamental
norms underlying the sentencing process.” Commonwealth v. Titus, 816
A.2d 251, 255 (Pa. Super. 2003). To be sure, the trial court was well aware
of the circumstances surrounding Appellant’s forgery conviction and of the
monetary amount Appellant attempted to steal. In sentencing Appellant to
an aggravated range sentence, the trial court weighed the “monetary
amount” Appellant attempted to steal with the other circumstances of the
case, including the fact that Appellant continues to commit theft offenses
despite having numerous criminal convictions for such offenses and the fact
that Appellant was on parole at the time he committed the current forgery
offense. N.T. Sentencing Hearing, 1/20/16, at 4-5. Appellant’s claim merely
focuses upon one particular factor of his crime – the amount of money he
attempted to steal – to the exclusion of everything else. This does not raise
a substantial question that Appellant’s sentence is inappropriate under the
Sentencing Code.
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Com. v. Lint, E.
Combined Opinion