J-A14001-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
M. K. S. :
:
Appellant : No. 2273 EDA 2017
Appeal from the Judgment of Sentence June 16, 2017
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0005745-2016
BEFORE: GANTMAN, P.J., SHOGAN, J., and PLATT*, J.
MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 05, 2018
Appellant, M.K.S., appeals from the judgment of sentence entered in
the Bucks County Court of Common Pleas, following his open guilty plea to
aggravated assault and endangering the welfare of children (“EWOC”).1 We
affirm.
In its opinion, the trial court fully and correctly sets forth the relevant
facts and procedural history. Therefore, we have no need to restate them.
We add the court ordered Appellant on August 11, 2017, to file a concise
statement of errors complained of on appeal per Pa.R.A.P. 1925(b); Appellant
timely complied on August 31, 2017.
Appellant raises one issue for our review:
DID THE [TRIAL] COURT ERR IN IMPOSING A SENTENCE OF
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1 18 Pa.C.S.A. §§ 2702(a)(1) and 4304(a)(1), respectively.
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* Retired Senior Judge assigned to the Superior Court.
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NOT LESS THAN TEN NOR MORE THAN TWENTY-ONE
YEARS’ INCARCERATION, THE SAME SENTENCE AS
[APPELLANT’S] CO-DEFENDANT WIFE, WHEN APPELLANT
DISTINGUISHED HIMSELF FROM HIS CO-DEFENDANT IN
THE FOLLOWING WAYS: APPELLANT PLED GUILTY TO
AGGRAVATED ASSAULT REGARDING ONE VICTIM,
WHEREAS THE CO-DEFENDANT PLED GUILTY REGARDING
TWO VICTIMS; THE CO-DEFENDANT’S AGGRAVATED
ASSAULT INVOLVED A COURSE OF CONDUCT WHEREAS
APPELLANT’S INVOLVED A BRIEF, MOMENTARY INCIDENT;
APPELLANT HAD COOPERATED WITH THE COMMONWEALTH
AND AGREED TO TESTIFY AGAINST HIS CO-DEFENDANT;
AND APPELLANT PROVIDED HIS DRUG ADDICITON
HISTORY AS A BASIS FOR HIS ACTIONS?
(Appellant’s Brief at 4).2
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
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
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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 plea was “open” as
to sentencing, so he can challenge the discretionary aspects of his sentence.
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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).
Objections to the discretionary aspects of a sentence are generally waived if
they are not raised at the sentencing hearing or raised in a motion to modify
the sentence imposed at that hearing. Commonwealth v. Mann, 820 A.2d
788 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003). See
also Commonwealth v. May, 584 Pa. 640, 887 A.2d 750 (2005), cert.
denied, 549 U.S. 832, 127 S.Ct. 58, 166 L.Ed.2d 54 (2006) (reiterating
absence of specific and contemporaneous objection waives issue on appeal).
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 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 concise statement must indicate “where the sentence falls in
relation to the sentencing guidelines and what particular provision of the code
it violates.” Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa.Super. 2004)
(quoting Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa.Super. 2000),
appeal denied, 563 Pa. 672, 759 A.2d 920 (2000)). The statement must also
specify “what fundamental norm the sentence violates and the manner in
which it violates that norm.” Kiesel, supra at 532.
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As a prefatory matter, Appellant failed to raise during the sentencing
hearing any challenge to his sentence. Additionally, Appellant’s
reconsideration motion does not include his claim that the sentencing court
failed to consider Appellant’s history of drug addiction. Further, Appellant did
not meet the minimal requirements of Rule 2119(f). In large part, Appellant’s
Rule 2119(f) statement is a recitation of authority relevant to a challenge to
discretionary aspects of sentencing. Appellant’s statement fails to articulate
what fundamental norm of sentencing the court violated or to indicate how his
sentence violates that norm. See Kiesel, supra. Rather, Appellant baldly
and briefly asserts his sentence is manifestly excessive in light of his guilty
plea and history of drug addiction. Because Appellant failed to include his
claims in full at sentencing and in his post-sentence motion, and his Rule
2119(f) statement is inadequate, Appellant has arguably waived his
challenges to the discretionary aspects of his sentence. See Mann, supra;
Mouzon, supra. See also Commonwealth v. Cannon, 954 A.2d 1222
(Pa.Super. 2008) (reiterating inadequate Rule 2119(f) statement constitutes
failure to raise substantial question as to discretionary aspects of sentence).
Moreover, even if Appellant had properly preserved his claims, he would
not be entitled to relief. (See Trial Court Opinion, filed 12/15/17, at 4-9)
(finding: at sentencing hearing, court stated it considered nature and
circumstances of Appellant’s and co-defendant’s crimes, as well as history,
character, and condition of Appellant and co-defendant; court explained it
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considered Appellant’s background and actions in comparison to co-
defendant’s background and actions; sentencing court also considered
Appellant’s history of drug addiction; sentencing court stated it found little
difference between two co-defendants’ conduct, because both consciously and
repeatedly chose to engage in behavior that injured their children; Appellant
admitted at guilty plea hearing that he failed to call for help when co-
defendant mistreated children over period of time; sentencing court properly
considered all evidence and sentencing factors under 42 Pa.C.S.A. § 9721(b)
when it sentenced Appellant).3 The record supports the court’s rationale.
Therefore, even if Appellant had properly preserved his issues, we would
affirm based on the trial court opinion. See generally In re K.L.S., 594 Pa.
194, 197 n.3, 934 A.2d 1244, 1246 n.3 (2007) (stating where issues are
waived on appeal, we should affirm).
Judgment of sentence affirmed.
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3 To the extent Appellant claims the court failed to consider at sentencing
Appellant’s agreement to testify against his co-defendant wife, that promise
was essentially illusory. See 42 Pa.C.S.A. § 5913(2) (stating in part: “[I]n a
criminal proceeding a person shall have the privilege, which he…may waive,
not to testify against his…then lawful spouse except that there shall be no
such privilege: … (2) in any criminal proceeding against either for bodily injury
or violence attempted, done or threatened upon the other, or upon the minor
children of said husband and wife, or the minor children of either of them, or
any minor child in their care or custody, or in the care or custody of either of
them…”).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/5/18
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