J-S13005-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ANTHONY KINNEY :
:
Appellant : No. 318 WDA 2017
Appeal from the Judgment of Sentence January 18, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0000388-2016,
CP-02-CR-0000393-2016, CP-02-CR-0000618-2016,
CP-02-CR-0001535-2016, CP-02-CR-0001540-2016,
CP-02-CR-0001668-2016, CP-02-CR-0002232-2016,
CP-02-CR-0002233-2016, CP-02-CR-0006736-2016
BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 12, 2018
Appellant, Anthony Kinney, appeals from the judgment of sentence
entered in the Allegheny County Court of Common Pleas, following his open
guilty plea to thirteen counts of receiving stolen property, three counts of theft
by unlawful taking, two counts each of conspiracy and simple assault, and one
count each of flight to avoid apprehension, trial or punishment, resisting
arrest, fleeing or attempting to elude police, possession of drug paraphernalia,
and several summary offenses.1 We affirm.
In its opinion, the trial court fully and correctly set forth the relevant
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1 18 Pa.C.S.A. §§ 3925(a), 3921(a), 903, 2701(a), 5126(a), 5104; 75
Pa.C.S.A. § 3733(a); 35 P.S. § 780-113(a)(32), respectively.
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facts and procedural history of this case. Therefore, we have no reason to
restate them.
Appellant raises the following issue for our review:
DID THE TRIAL COURT ABUSE ITS DISCRETION IN
SENTENCING [APPELLANT] TO MULTIPLE CONSECUTIVE
SENTENCES TOTALING 7 TO 14 YEARS’ IMPRISONMENT
FOR PROPERTY CRIMES WHERE THE COURT DID NOT
MEANINGFULLY CONSIDER ALL RELEVANT SENTENCING
CODE FACTORS; THAT THE CRIMES WERE DUE TO
[APPELLANT’S] DRUG ADDICTION AND NEED FOR PROPER
TREATMENT; THAT [APPELLANT] TOOK RESPONSIBILITY
FOR HIS ACTIONS BY PLEADING GUILTY, AND EXPRESSED
SINCERE REMORSE; THAT [APPELLANT] IS HIGHLY
MOTIVATED TO STAY CLEAN DUE TO THE BIRTH OF HIS
DAUGHTER; AND THE COURT DID NOT GIVE ANY REASONS
FOR IMPOSING CONSECUTIVE RATHER THAN CONCURRENT
TERMS IN FASHIONING A SENTENCE?
(Appellant’s Brief at 15).
Appellant argues the court imposed a manifestly excessive and
unreasonable sentence and 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. Specifically,
Appellant claims the court did not consider his background or his history of
drug addiction. Appellant asserts the court did not take into account
Appellant’s willingness to take responsibility for his actions and his expression
of remorse at sentencing. Appellant avers his cumulative sentence is
excessive, and the court failed to provide adequate reasons for the imposition
of consecutive sentences. Appellant concludes this Court should vacate and
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remand this matter to the trial court for a new sentencing hearing. As
presented, Appellant challenges the discretionary aspects of his sentence. 2
See Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595 (Pa.Super. 2010)
(explaining challenge to imposition of consecutive sentences implicates
discretionary aspects of sentencing); Commonwealth v. Lutes, 793 A.2d
949 (Pa.Super. 2002) (stating claim that sentence is manifestly excessive
challenges discretionary aspects of sentencing); Commonwealth v. Cruz-
Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676
A.2d 1195 (1996) (stating allegation court ignored mitigating factors
challenges 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 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
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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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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).
When appealing the discretionary aspects of a sentence, an appellant
must invoke this Court’s jurisdiction by including in his brief a separate concise
statement demonstrating 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 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
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Code; or (2) contrary to the fundamental norms which underlie the sentencing
process.” Sierra, supra at 912-13. An allegation that the sentencing court
failed to consider certain mitigating factors, absent more, does not raise a
substantial question for our review. Commonwealth v. Rhoades, 8 A.3d
912, 918-19 (Pa.Super. 2010), appeal denied, 611 Pa. 651, 25 A.3d 328
(2011), cert. denied, 565 U.S. 1263, 132 S.Ct. 1746, 182 L.Ed.2d 536 (2012).
“Generally, Pennsylvania law ‘affords the sentencing court discretion to
impose its sentence concurrently or consecutively to other sentences being
imposed at the same time or to sentences already imposed. Any challenge to
the exercise of this discretion ordinarily does not raise a substantial question.’”
Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super. 2011) (quoting
Commonwealth v. Pass, 914 A.2d 442, 446-47 (Pa.Super. 2006)). A basic
“allegation that a sentencing court failed to consider or did not adequately
consider certain factors does not raise a substantial question that the sentence
was inappropriate.” Cruz-Centeno, supra at 545. See also
Commonwealth v. Foust, 180 A.3d 416, 434 (Pa.Super. 2018) (regarding
mere challenge to imposition of concurrent versus consecutive sentences,
“extensive case law in this jurisdiction holds that defendants convicted of
multiple offenses are not entitled to a ‘volume discount’ on their aggregate
sentence.”).
Our standard of review concerning the discretionary aspects of
sentencing is as follows:
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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.
Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal
denied, 586 Pa. 723, 890 A.2d 1057 (2005). Where the sentencing court had
the benefit of a presentence investigative report (“PSI”), 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.” Commonwealth v. Devers, 519 Pa. 88, 101-02, 546 A.2d 12, 18
(1988). Further, where a sentence is within the standard range of the
guidelines, Pennsylvania law generally views the sentence as appropriate
under the Sentencing Code. See Cruz-Centeno, supra (stating combination
of PSI and standard range sentence, absent more, cannot be considered
excessive or unreasonable).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Randal B.
Todd, we conclude Appellant’s issue merits no relief. The trial court’s opinion
comprehensively discusses and properly disposes of the question presented.
(See Trial Court Opinion, filed October 30, 2017, at 5-6) (finding: court
considered PSI and statutory factors under 42 Pa.C.S.A. § 9721(b) when
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imposing sentences in nine separate cases; Appellant committed these current
offenses against multiple victims while he was on parole; Appellant has
become serial offender; current crimes involved violence, including assault,
flight to avoid apprehension, resisting arrest, and fleeing and eluding; court
declined to impose maximum sentence, as victims had requested, because
Appellant apologized and accepted responsibility for his actions; court
considered Appellant’s entire background, along with gravity and repeated
nature of his past and current offenses, and their impact on victims and
community as whole, given repeated nature of his crimes, Appellant’s
acceptance of responsibility, and Appellant’s potential for addiction treatment;
court appropriately sentenced Appellant).3 Appellant has given this Court no
sound reasons to disturb the sentence. Accordingly, we affirm on the basis of
the trial court opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/12/2018
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3 The record shows the court imposed standard range or probation sentences.
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Com. v. Kinney, A.
Combined Opinion