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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
IRA D. HAMMOND,
Appellant No. 1493 WDA 2016
Appeal from the Judgment of Sentence September 15, 2016
in the Court of Common Pleas of Fayette County
Criminal Division at No.: CP-26-CR-0000010-2016
BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MAY 5, 2017
Appellant, Ira D. Hammond, appeals from the judgment of sentence
imposed following his negotiated guilty plea to involuntary manslaughter,1
recklessly endangering another person,2 disregard of traffic lane,3 driving
vehicle at safe speed,4 and careless driving.5 He claims his sentence was
excessive. For the reasons set forth below, we affirm.
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 2504(a).
2
18 Pa.C.S.A. § 2705.
3
75 Pa.C.S.A. § 3309(1).
4
75 Pa.C.S.A. § 3361.
5
75 Pa.C.S.A. § 3714(a).
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We derive the following recitation of facts from the transcript of the
guilty plea and sentencing hearings, the trial court‟s December 1, 2016
opinion and our independent review of the certified record. On August 29,
2014, while driving on State Route 281 in Markleysburg, Pennsylvania,
Appellant‟s van crossed into the lane of opposing traffic and struck a
motorcycle, resulting in the death of Kelly Oberdick-Palmer and serious
bodily injury to Loren Reibling. (See N.T. Guilty Plea Hearing, 7/29/16, at
4-6; see also N.T. Sentencing, 9/15/16, at 4). Appellant admitted to
driving over the speed limit. (See N.T. Guilty Plea Hearing, at 7).
On February 5, 2016, the Commonwealth filed a criminal information
charging Appellant with involuntary manslaughter, recklessly endangering
another person, disregarding a traffic lane, driving vehicle at safe speed, and
careless driving. (See Information, 2/05/16). On July 29, 2016, Appellant
entered a counseled, negotiated guilty plea to all five counts of the
information. (See N.T. Guilty Plea, at 9). In return for Appellant‟s guilty
plea, the Commonwealth agreed to a sentence of not less than six nor more
than twenty-three months of intermediate punishment if appropriate and
available. (See id. at 3-4). At the hearing, the trial court expressed
uncertainty with respect to house arrest “[b]ecause there is a death of a
human being[.]” (Id. at 8). On September 15, 2016, Appellant was
sentenced to a term of not less than six nor more than twenty-three months
of incarceration in Fayette County Prison for the involuntary manslaughter
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charge; no further penalties were imposed for the remaining charges.6 (See
N.T. Sentencing, at 6). Notably, the sentencing court had the benefit of a
pre-sentence investigation (PSI) report. (See id. at 7).
Appellant timely filed a post-sentence motion for modification of
sentence on September 20, 2016. (See Post-Sentence Motion, 9/20/16, at
unnumbered pages 1-2). The court denied the motion on September 26,
2016. (See Order, 9/26/16). Appellant timely filed a notice of appeal on
October 4, 2016.7
On appeal, Appellant raises the following question for our review:
Whether the Appellant‟s sentence was excessive[?]
(Appellant‟s Brief, at 7).
Appellant challenges the discretionary aspects of his sentence. Our
standard of review 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
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6
We take judicial notice that, according to public records, Appellant was
released from Fayette County Prison upon serving his minimum sentence.
However, Appellant remains on parole and would be subject to re-
incarceration upon violation of imposed conditions.
7
Pursuant to the court‟s order, Appellant filed a concise statement of errors
complained of on appeal on October 5, 2016. See Pa.R.A.P. 1925(b). The
trial court filed an opinion on December 1, 2016. See Pa.R.A.P. 1925(a).
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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. Antidormi, 84 A.3d 736, 760 (Pa. Super. 2014), appeal
denied, 95 A.3d 275 (Pa. 2014) (citation omitted).
A challenge to the 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. See Commonwealth v. McAfee, 849 A.2d 270, 274
(Pa. Super. 2004), appeal denied, 860 A.2d 122 (Pa. 2004). In situations
where a plea agreement specifies some but not all aspects of the sentence,
this Court will only allow an appeal as to those discretionary aspects of
sentencing not agreed upon during the negotiation process. See
Commonwealth v. Brown, 982 A.2d 1017, 1019 (Pa. Super. 2009), appeal
denied, 990 A.2d 726 (Pa. 2010).
Here, Appellant entered into a negotiated guilty plea that specified the
length of his sentence, but not whether intermediate punishment would be
appropriate and available. Thus, Appellant has retained his right to petition
this Court for allowance of appeal with respect to the discretionary aspects
of his sentence. See id.
Prior to reaching the merits of a discretionary sentencing issue:
[We] must engage in a four-part analysis to 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
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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), appeal
denied, 77 A.3d 1258 (Pa. 2013) (citation omitted).
Instantly, Appellant properly preserved his claim by filing a timely
post-sentence motion and notice of appeal. 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,” however, 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) (citation
omitted).
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d
526, 533 (Pa. Super. 2011) (citation omitted). Further, “[a] substantial
question exists only when the appellant advances a colorable argument that
the sentencing judge‟s actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.” Id. (citations and quotation marks
omitted).
In the instant matter, Appellant challenges the discretionary aspects of
his sentence as “excessive” and “unreasonable.” (Appellant‟s Brief, at 11).
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However, he fails to reference a provision of the Sentencing Code or a
fundamental norm of the sentencing process which his sentence violates.
See Commonwealth v. Bromley, 862 A.2d 598, 604 (Pa. Super. 2004).
Accordingly, Appellant has failed to raise a substantial question.8
Even if Appellant had raised a substantial question, the court did not
abuse its discretion in imposing his sentence. The trial court‟s sentence was
within the standard range of the Sentence Guidelines. In fashioning
Appellant‟s sentence, the court placed on the record its reasoning for the
sentence. Specifically, the court noted that it had taken into consideration:
(1) the nature, seriousness, and gravity of the offense of involuntary
manslaughter; (2) the loss of life sustained by the victim; (3) the pre-
sentence investigation report; (4) Appellant‟s prior record; and (5) his
correctional treatment needs. (See N.T. Sentencing, at 6-7).
Additionally, the sentencing court had the benefit of a PSI report.
“[W]here the sentencing court imposed a standard-range sentence with the
benefit of a pre-sentence report, we will not consider the sentence
excessive.” Commonwealth v. Corley, 31 A.3d 293, 298 (Pa. Super.
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8
Moreover, he fails to develop an argument or discuss any authority in
support of his claim. Therefore, it would be waived for that reason as well.
See, e.g., Commonwealth v. Johnson, 985 A.2d 915 (Pa. 2009)
(“[W]here an appellate brief fails to provide any discussion of a claim with
citation to the relevant authority or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived.”); Pa.R.A.P.
2119(a).
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2011); see also Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super.
2010) (“where a sentence is within the standard range of the guidelines,
Pennsylvania law views the sentence as appropriate under the Sentence
Code.”) (citation omitted). Under such circumstances, “we can assume the
sentencing court „was aware of relevant information regarding the
defendant‟s character and weighed those considerations along with
mitigating statutory factors.‟” Corley, supra at 298 (quoting
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)).
Appellant failed to raise a substantial question that his sentence was
excessive.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/5/2017
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