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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
ADRIAN SIMON REID :
:
Appellant : No. 858 MDA 2017
Appeal from the Judgment of Sentence March 23, 2017
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0002697-2016
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.
MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 10, 2018
Appellant, Adrian Simon Reid, appeals from the judgment of sentence
entered in the Lackawanna County Court of Common Pleas, following his
open guilty plea to disorderly conduct.1 We affirm.
The relevant facts and procedural history of this case are as follows.
[The] charges stemmed from a June 9, 2016, incident at
the WalMart in Dickson City, Lackawanna County,
Pennsylvania, where [Appellant] cashed two fraudulent
checks made payable to him from Marywood University as
part of a larger check cashing scheme.
On January 27, 2017, [Appellant] entered an [open] guilty
plea to one (1) count of [d]isorderly [c]onduct and the
remaining charges were nolle prossed. Prior to entering
his guilty plea, [Appellant] executed a lengthy written plea
colloquy form in which [he] indicated his awareness of the
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1 18 Pa.C.S.A. § 5503(a)(4).
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* Retired Senior Judge assigned to the Superior Court.
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maximum penalties he was facing, the elements of the
crimes charged, his satisfaction with counsel, and the
terms of the plea agreement. Moreover, [the court] also
conducted an on the record inquiry into…whether
[Appellant] was entering a knowing, voluntary, and
intelligent plea. After receiving satisfactory responses
from [Appellant], [the court] accepted the guilty plea.
On March 23, 2017, [the court] sentenced [Appellant] to
three (3) to twelve (12) months’ confinement, consecutive
to the unrelated sentence he was serving under [docket
number 2670-2015] for [p]ossession with [i]ntent to
[d]eliver.
On April 3, 2017, [Appellant timely] filed a [m]otion for
[r]econsideration of [s]entence, which [the court] denied
on April 19, 2017.
(Trial Court Opinion, filed July 19, 2017, at 1-2) (internal citations omitted).
Appellant timely filed a notice of appeal on May 19, 2017. On May 22,
2017, the court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b); Appellant timely
complied on June 12, 2017.
Appellant raises the following issue for our review:
WHETHER THE SENTENCING COURT ABUSED ITS
DISCRETION IN SENTENCING…APPELLANT TO [A]
SENTENCE OF THREE (3) TO TWELVE (12) MONTHS[’]
INCARCERATION, TO BE SERVED CONSECUTIVE TO A
PERIOD OF INCARCERATION OF EIGHT (8) TO TWENTY-
THREE (23) [MONTHS’ INCARCERATION]
THAT…APPELLANT WAS SERVING IN AN UNRELATED
MATTER…?
(Appellant’s Brief at 8).
Appellant argues the trial court failed to state its reasons on the record
for sentencing Appellant in the aggravated range of the sentencing
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guidelines. Appellant further complains the trial court did not state its
reasons for imposing the sentence consecutive to one Appellant was serving
in an unrelated case. Appellant submits the court failed to consider the
relevant criteria contained in the Sentencing Code, which resulted in a
sentence that is inconsistent with the protection of the public, the gravity of
the offense as it relates to the impact on the community, and Appellant’s
rehabilitative needs. Appellant concludes this Court should vacate his
judgment of sentence. As presented, Appellant challenges the discretionary
aspects of his sentence.2 See Commonwealth v. Cartrette, 83 A.3d 1031
(Pa.Super. 2013) (en banc) (explaining claim sentencing court failed to
follow Section 9721(b) factors pertains to discretionary sentencing matters);
Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595 (Pa.Super. 2010)
(explaining challenge to imposition of consecutive sentences implicates
discretionary aspects of sentencing).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d
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2 “[W]hile a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of his...sentence other
than to argue that the sentence is illegal or that the sentencing court did not
have jurisdiction, open plea agreements are an exception in which a
defendant will not be precluded from appealing the discretionary aspects of
the sentence.” Commonwealth v. Tirado, 870 A.2d 362, 365 n.5
(Pa.Super. 2005) (emphasis in original). “An ‘open’ plea agreement is one
in which there is no negotiated sentence.” Id. at 363 n.1. Here, Appellant’s
guilty plea included no negotiated sentence.
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910 (Pa.Super. 2000). 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.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
Additionally, “[a]s a general rule, any issues not raised in a [Rule] 1925(b)
statement will be deemed waived.” Commonwealth v. Castillo, 585 Pa.
395, 403, 888 A.2d 775, 780 (2005) (quoting Commonwealth v. Lord,
553 Pa. 415, 420, 719 A.2d 306, 309 (1998)).
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in his brief a
separate concise statement demonstrating that there is a substantial
question as to the appropriateness of the sentence under the Sentencing
Code. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);
Pa.R.A.P. 2119(f). “The requirement that an appellant separately set forth
the reasons relied upon for allowance of appeal furthers the purpose evident
in the Sentencing Code as a whole of limiting any challenges to the trial
court’s evaluation of the multitude of factors impinging on the sentencing
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decision to exceptional cases.” Commonwealth v. Phillips, 946 A.2d
103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450,
174 L.Ed.2d 240 (2009) (quoting Commonwealth v. Williams, 562 A.2d
1385, 1387 (Pa.Super. 1989) (en banc)) (emphasis in original) (internal
quotation marks omitted).
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830
A.2d 1013, 1018 (Pa.Super. 2003). 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.” Sierra, supra at 912-13. A challenge to the
consecutive imposition of a sentence to one a defendant was already serving
does not ordinarily raise a substantial question. Commonwealth v. Marts,
889 A.2d 608 (Pa.Super. 2005).
Our standard of review concerning the discretionary aspects of
sentencing is as follows:
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 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.
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Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal
denied, 586 Pa. 723, 890 A.2d 1057 (2005).
Here, Appellant preserved his challenge to the court’s imposition of a
consecutive sentence in a timely filed post-sentence motion, a Rule 1925(b)
statement, and a Rule 2119(f) statement. Appellant’s challenge to the
court’s imposition of the sentence in this case to be served consecutively to
the one Appellant was serving in a different case, however, does not raise a
substantial question. See Evans, supra; Marts, supra. To the extent
Appellant argues the court did not state its reasons on the record for the
aggravated range sentence, Appellant failed to preserve this specific claim in
his timely filed post-sentence or in his Rule 1925(b) statement. Thus, that
portion of Appellant’s sentencing issue is waived. See Evans, supra;
Castillo, supra. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/10/2018
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