J-S33037-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KENNETH HARRIS, :
:
Appellant : No. 1914 MDA 2016
Appeal from the Judgment of Sentence October 18, 2016
in the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0000642-2016
BEFORE: BENDER, P.J.E., OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 01, 2017
Kenneth Harris (Appellant) appeals from the judgment of sentence
entered following his conviction for simple assault. We affirm.
On October 18, 2016, Appellant entered a nolo contendere plea to one
count of simple assault and was sentenced to a term of 11 to 24 months’
incarceration. Appellant filed a post-sentence motion seeking reconsideration
of his sentence, which was denied by the trial court on October 26, 2016.
This timely-filed appeal followed. Both Appellant and the trial court complied
with the mandates of Pa.R.A.P. 1925.
On appeal, Appellant challenges the discretionary aspects of his
sentence. Appellant’s Brief at 4. A challenge to the discretionary aspects of
sentencing is not automatically reviewable as a matter of right.
*Retired Senior Judge assigned to the Superior Court.
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Commonwealth v. Hunter, 768 A.2d 1136, 1144 (Pa. Super. 2001). Prior
to reaching the merits of a discretionary sentencing issue,
[w]e conduct a four part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence,
see [Pa.R.Crim.P. 720]; (3) whether appellant's brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate
under the Sentencing Code, 42 Pa.C.S. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (citations
omitted).
Our review of the record shows that Appellant timely filed both a post-
sentence motion, in which he requested a modification of his sentence, aand
a notice of appeal. We now consider whether Appellant has raised a
substantial question for our review. “A substantial question will be found
where the defendant advances a colorable argument that the sentence
imposed is either inconsistent with a specific provision of the code or is
contrary to the fundamental norms which underlie the sentencing process.”
Commonwealth v. Griffin, 804 A.2d 1, 7 (Pa. Super. 2002) (citation
omitted).
Instantly, Appellant included in his brief a 2119(f) statement that
raised the following issues: (1) “his sentence is ‘so manifestly excessive as
to constitute too severe a punishment’” and (2) “the lower court failed to
state on the record any reason for imposing a sentence in the aggravated
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range.” Appellant’s Brief at 9. Appellant is not entitled to review as neither
claim raises a substantial question.
It is well-settled that a bald claim of excessiveness does not raise a
substantial question. See Commonwealth v. Mouzon, 812 A.2d 623 (Pa.
Super. 2002) (“[A] claim of excessiveness that is raised against a sentence
within the statutory limits fails to raise a substantial question as a matter of
law.”) (citations omitted). Moreover, contrary to Appellant’s assertion, his
sentence fell within the standard range, not the aggravated range, of the
applicable sentencing guidelines.1 A claim that a standard range sentence is
excessive also fails to raise a substantial question.2 See Commonwealth
v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013).
1
Appellant pled nolo contendere to simple assault, graded as a
misdemeanor of the second degree. Both the offense gravity score for this
crime and Appellant’s prior record score were 3. Thus, the standard range
of the guidelines called for restorative sanctions to less than 12 months of
incarceration. See Pennsylvania Commission on Sentencing Standard
Guideline Form, 10/18/2016. Appellant’s sentence of 11 to 24 months of
incarceration fell within the standard guideline range.
2
Even if he raised a substantial question, Appellant’s claim fails as the
record before us reflects that the sentencing court considered many factors
in imposing Appellant’s sentence and had the benefit of a presentence
investigation report. “As we indicated in Commonwealth v. Moury, 992
A.2d 162, 171 (Pa. Super. 2010), where 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. 2011).
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Accordingly, because Appellant has failed to raise a substantial
question for our review, we are without jurisdiction to review the merits of
his claims.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/1/2017
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