J-S91018-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT CHARLES LOWDEN :
:
Appellant : No. 830 MDA 2016
Appeal from the Judgment of Sentence April 11, 2016
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0002232-2015
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*
CONCURRING MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 04, 2017
As the Majority indicates, Appellant challenges the discretionary
aspects of his sentence. Appellant has preserved properly a single
discretionary aspects of sentencing claim by presenting the claim in his post-
sentence motion, court-ordered Pa.R.A.P. 1925(b) statement, Pa.R.A.P.
2119(f) statement, and the argument portion of his brief. Namely, Appellant
argues the sentencing court erred in imposing consecutive, as opposed to
concurrent, sentences for the crimes committed in the instant case since the
sentencing court failed to adequately consider the mitigating circumstances. 1
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
Appellant presented several mitigating factors that the sentencing court
allegedly failed to consider in imposing consecutive, as opposed to
concurrent, sentences.
(Footnote Continued Next Page)
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Thus, notwithstanding Appellant’s attempt to raise an additional issue
on appeal, i.e., that the sentencing court failed to consider the factors set
forth in 42 Pa.C.S.A. § 9721(b),2 this Court should confine its analysis to the
sole discretionary sentencing claim preserved by Appellant throughout the
proceedings.
In any event, I agree with the Majority that Appellant has not
presented a “substantial question” that the sentence appealed from is not
appropriate under the Sentencing Code. As the Majority correctly indicates:
“[T]his Court has held on numerous occasions that a claim of inadequate
consideration of mitigating factors does not raise a substantial question for
our review.” Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa.Super.
2013) (quotation marks and quotation omitted). Moreover, this Court also
has stated,
[T]he [sentencing] court has discretion to impose sentences
consecutively or concurrently and, ordinarily, a challenge to this
exercise of discretion does not raise a substantial question. The
imposition of consecutive, rather than concurrent, sentences
may raise a substantial question in only the most extreme
_______________________
(Footnote Continued)
2
As the Majority indicates, Appellant argues on appeal that the sentencing
court’s imposition of standard range sentences was not consistent with the
protection of the public, the gravity of the offenses, and the rehabilitative
needs of the defendant. This Court has held that such a claim may raise a
substantial question permitting our review. Commonwealth v. Serrano,
150 A.3d 470, 473 (Pa.Super. 2016). However, in this case, Appellant did
not present such a claim in his post-sentence motion, and thus, it is waived.
See Pa.R.Crim.P. 720.
-2-
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circumstances, such as where the aggregate sentence is unduly
harsh, considering the nature of the crimes and the length of
imprisonment.
Commonwealth v. Moury, 992 A.2d 162, 171-72 (Pa.Super. 2010)
(citations omitted). See Commonwealth v. Lamonda, 52 A.3d 365, 372
(Pa.Super. 2012) (en banc).
In the case sub judice, there is no indication that the aggregate
sentence is unduly harsh, considering the nature of Appellant’s crimes and
the length of imprisonment imposed. Thus, Appellant has failed to raise a
substantial question that the sentence appealed from is not appropriate
under the Sentencing Code and affirmance of his judgment of sentence is
warranted.
-3-
Com. v. Lowden, R.
Combined Opinion