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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDWIN WHETSTONE
Appellant No. 693 EDA 2016
Appeal from the Judgment of Sentence January 19, 2016
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0003699-2015
BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.*
MEMORANDUM BY MOULTON, J.: FILED FEBRUARY 06, 2017
Edwin Whetstone appeals from the January 19, 2016 judgment of
sentence entered in the Montgomery County of Common Pleas following his
conviction for retail theft.1 We affirm.
On April 21, 2015, Whetstone was arrested for retail theft of a Giant
Food Store in the amount of $212.00. On August 24, 2015, he entered an
open guilty plea to one count of retail theft, graded as a third-degree felony.
The standard range as set forth in the Pennsylvania Sentencing Guidelines
was 6 to 16 months’ incarceration; however, on January 19, 2016, the trial
court sentenced Whetstone to 36½ months’ to 7 years’ incarceration.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3929(a)(1).
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Whetstone filed a motion for modification of sentence, which the trial court
denied on February 5, 2016.
On March 3, 2016, Whetstone timely filed a notice of appeal. On
appeal, Whetstone argues that the trial court erred in sentencing him to
36½ months to 7 years without placing on the record adequate reasons for
departing from the guidelines.
Whetstone challenges the discretionary aspects of his sentence.
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,
1064 (Pa.Super. 2011). Before we may address such a challenge, we first
determine:
(1) whether the appeal is timely; (2) whether Appellant
preserved his issue; (3) whether Appellant’s brief includes
a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary
aspects of sentence; and (4) whether the concise
statement raises a substantial question that the sentence
is appropriate under the sentencing code.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting
Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)).
Whetstone filed a timely notice of appeal and preserved his claim in a
timely post-sentence motion. Whetstone, however, failed to include in his
brief a concise statement of reasons relied upon for allowance of appeal
pursuant to Pennsylvania Rule of Appellate Procedure 2119(f).
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When the Commonwealth raises an objection to appellant’s failure to
include the Rule 2119(f) statement, as it did here, we are precluded from
addressing the merits of appellant’s challenge to the discretionary aspects of
sentencing.2 See Commonwealth v. Batts, 125 A.3d 33, 44 n.9
(Pa.Super. 2015), app. granted, 135 A.3d 176 (Pa. 2016); see also
Commonwealth v. Minnich, 662 A.2d 21, 24 (Pa.Super. 1995).
Accordingly, Whetstone has waived his claim.
Even if Whetstone had included a Rule 2119(f) statement and we were
to find a substantial question,3 we would conclude that the trial court did not
abuse its discretion.
“Sentencing is a matter vested within the discretion of the trial court
and will not be disturbed absent a manifest abuse of discretion.”
Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010). “An
abuse of discretion requires the trial court to have acted with manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
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2
Where the Commonwealth has not objected, an appellant’s failure to
include a Rule 2119(f) statement in his or her brief would not be fatal if the
presence of a substantial question can be readily ascertained from the brief.
Commonwealth v. Batts, 125 A.3d 33, 44 n.9 (Pa.Super. 2015), app.
granted, 135 A.3d 176 (Pa. 2016).
3
Whetstone’s claim that the trial court failed to provide adequate
reasons for sentencing him outside the Sentencing Guidelines raises a
substantial question. See Commonwealth v. Rodda, 723 A.2d 212, 214
(Pa.Super. 1999) (holding that assertion that trial court failed to sufficiently
state its reasons for imposing sentence outside sentencing guidelines raises
substantial question).
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support so as to be clearly erroneous.” Id. “A sentencing court need not
undertake a lengthy discourse for its reasons for imposing a sentence or
specifically reference the statute in question, but the record as a whole must
reflect the sentencing court’s consideration of the facts of the crime and
character of the offender.” Id. at 1283.
Whetstone claims that the trial court failed to state any aggravating
factors for sentencing him outside the standard range. He argues that the
only reason the trial court provided was Whetstone’s prior record, which
does not constitute an aggravating factor because it already is considered in
the Sentencing Guidelines.
Whetstone’s argument is without merit. While a trial court may not
consider, as the sole reason for increasing a sentence, factors already
included within the Sentencing Guidelines, “[t]rial courts are permitted to
use prior conviction history and other factors already included in the
guidelines if[] they are used to supplement other extraneous sentencing
information.” Commonwealth v. Shugars, 895 A.2d 1270, 1275
(Pa.Super. 2006) (emphasis in original) (quoting Commonwealth v.
Simpson, 829 A.2d 334, 339 (Pa.Super. 2003)).
Here, in fashioning Whetstone’s sentence, the trial court considered
the protection of the public, Whetstone’s rehabilitative needs, and the
gravity of the offense. At the sentencing hearing, the trial court stated:
THE COURT: . . . In the present case, I have
considered your age, the information about you that I read
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in the Pre-Sentence Investigation [“PSI”]. There has been
no disagreement with the facts. They haven’t been
contested. So I will take it for what it is worth in the PSI.
And the facts as to your personal background and
circumstances are not in dispute.
After considering these factors, I find that there is an
undue risk that during the period of probation or partial
confinement, you will commit another crime.
You are in need of correctional treatment that can be
provided most effectively by your commitment to an
institution. A lesser sentence would depreciate the
seriousness of your crime.
I have looked at the standard range of 6 to 16, and I’m
going to sentence you above the standard range. And I
want to give you the reasons why. Not the least of which
is this is your 67th arrest.
You have had every opportunity to try to deal with your
drug problem, but you continually, continually commit
crime. You are a career criminal.
***
You have a drug problem. You have been previously
incarcerated on numerous occasions; am I correct?
[WHETSTONE]: Yes, I have.
THE COURT: Okay. I just feel the guideline
recommendations are inappropriate. Notwithstanding, you
have a long -- horrific, long record of misdemeanors. And
I believe there is [sic] some felonies in there; am I
correct?
[ADA]: Several, Your Honor.
THE COURT: Several felonies. Yes, several is right.
Therefore, this is my basis for going outside of the
guidelines.
N.T., 1/19/16, at 9-10, 12-13. Besides considering Whetstone’s extensive
prior criminal history, the trial court considered the information in
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Whetstone’s PSI,4 his continuous drug abuse, and the risk that he would
commit another crime.
Thus, because Whetstone’s criminal record was not the sole factor in
sentencing him outside the Guidelines, we find no abuse of discretion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/6/2017
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4
“Where pre-sentence reports exist, we . . . presume that the
sentencing judge was aware of relevant information regarding the
defendant’s character and weighed those considerations along with
mitigating statutory factors.” Commonwealth v. Macias, 968 A.2d 773,
778 (Pa.Super. 2009) (quoting Commonwealth v. Devers, 546 A.2d 12,
18 (Pa. 1988)).
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