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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
ANN M. HUTCHISON, :
:
Appellant : No. 151 WDA 2018
Appeal from the Judgment of Sentence January 3, 2018
in the Court of Common Pleas of Crawford County
Criminal Division at No(s): CP-20-CR-0000758-2016
BEFORE: OLSON, MCLAUGHLIN, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 06, 2018
Ann M. Hutchison (Appellant) appeals from the judgment of sentence
imposed after she pled guilty to the offense of bad checks. We affirm.
On November 2, 2017, pursuant to a plea deal, Appellant pled guilty to
the aforementioned crime, a misdemeanor of the first degree. According to
the Commonwealth at sentencing, “this was a [] standard bad check [case.
Appellant] paid for $32 -- $32.70 worth of gas from Shell Gas in Cochranton
with a check. Unfortunately for [Appellant], the check was from a closed
account. [Appellant] was sent a ten-day demand letter and never made
good on it.” N.T., 1/3/2018, at 4. In exchange for her plea, the
Commonwealth recommended a standard-range sentence. Id.
Accepting the Commonwealth’s recommendation, on January 3, 2018,
the trial court sentenced Appellant to a standard-range sentence.
* Retired Senior Judge assigned to the Superior Court
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Specifically, the court ordered that Appellant serve 12 months less one day
to 24 months less one day in the Crawford County Correctional Facility.
Appellant was also ordered to pay fines and costs, and serve a three-year
probationary term.
Appellant thereafter timely filed a post-sentence motion and, following
its denial, a notice of appeal.1 Appellant presents the following question for
our review: “Whether the [trial c]ourt abused its discretion in failing to
adequately consider the health issues of Appellant [] in sentencing her to the
maximum minimum [sic] standard range sentence[?]” Appellant’s Brief at 4
(suggested answer omitted).2 Specifically, Appellant contends that (1) the
trial court “failed to adequately consider the health issues of Appellant at
sentencing[;]” and (2) “the sentence was manifestly excessive in light of the
criminal conduct at issue, which was a bad check of $32.[7]0.” Appellant’s
Brief at 9-10.
Appellant’s claims on appeal challenge the discretionary aspects of her
sentence. Id.3
1
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
2
Pertinent to this appeal, at the time of sentencing, Appellant was receiving
treatment for breast cancer. N.T. 1/3/2018, at 2. See also Motion for
Reconsideration/Motion to Modify Sentence, 1/4/2018, at 1 (unnumbered)
(Appellant “has been receiving treatment for [stage two breast cancer] for
over a year, including radiation chemotherapy since March 2017.”).
3 Because Appellant’s plea was “open” to sentencing, she may challenge the
discretionary aspects of her sentence.
(Footnote Continued Next Page)
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Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant
challenging the discretionary aspects of his [or her] sentence
must invoke this Court’s jurisdiction by satisfying a four-part
test:
We 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. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some
citations omitted).
Here, Appellant timely filed a post-sentence motion and a notice of
appeal, and included a statement pursuant to Rule 2119(f) in her brief. We
now turn to consider whether Appellant has presented a substantial question
for our review.
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d
(Footnote Continued) _______________________
[W]hile a guilty plea which includes sentence negotiation
ordinarily precludes a defendant from contesting the validity of
his or her 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 (2005) (emphasis in
original).
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825, 828 (Pa. Super. 2007). “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.” Griffin, 65 A.3d at 935 (citation and quotation marks
omitted).
At the outset, we recognize that a claim alleging inadequate
consideration of mitigating factors does not raise a substantial question. See
Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (“[T]his
Court has held on numerous occasions that a claim of inadequate
consideration of mitigating factors does not raise a substantial question for
our review.”) (quoting Commonwealth v. Downing, 990 A.2d 788, 794
(Pa. Super. 2010)); Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa.
Super. 2014) (“[W]e have held that a claim that a court did not weigh the
factors as an appellant wishes does not raise a substantial question.”). In
her brief to this Court, Appellant acknowledges that “a substantial question
is not normally raised for a standard[-]range sentence because of an
allegation [that the trial] court failed to adequately consider mitigating
factors[.]” Appellant’s Brief at 9. Nonetheless, Appellant argues that her
claims are reviewable by this Court because the sentence imposed is
excessive in light of the criminal conduct at issue and because a sentence of
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total confinement “could substantially lessen” her “natural life-span because
of a higher risk for complications and infection during her incarceration.” Id.
Assuming arguendo that Appellant has presented a substantial
question for our review, we find her arguments without merit. In its opinion
to this Court, the trial court responded to Appellant’s claims as follows.
[Appellant’s] medical issues and mental health issues were
described to the [trial c]ourt at the time of sentencing so th[e
c]ourt was able to take into consideration that information when
considering the various sentencing factors. As a result th[e trial
c]ourt concluded that a maximum county sentence was
appropriate and that [Appellant] could receive any needed
medical and mental health treatment through the Crawford
County Correctional Facility.
[Appellant] began a career of crime on March 6, 1992,
which resulted in a conviction for theft by deception as a
misdemeanor of the first degree on December 21, 1993.
Since that time she has had convictions which from the
[trial c]ourt’s review include [67] bad check offenses, mostly as
summary convictions so that her prior record score was not
affected, a lotteries conviction as a misdemeanor of the first
degree, a theft by unlawful taking conviction, a theft of services
conviction, and three convictions for theft by deception.
[Appellant] was finally sentenced by a judge in Warren
County to a 10 to 30 month state incarceration sentence in 2012
but after that sentence was served she began committing more
bad check offenses (albeit fewer than previously).
The sentence imposed by th[e c]ourt would have been an
aggravated[-]range sentence but for the plea agreement th[e
trial c]ourt chose to follow because [Appellant] needs to
understand that she cannot continue to commit these offenses,
society needs to understand that there is protection for victims
when offenders such as [Appellant] continue to commit the same
crimes over and over to the detriment of society and because
based on [Appellant’s] record it is very clear that it is unlikely
that she can be rehabilitated.
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Thus, th[e trial c]ourt believes that the sentence imposed
within the standard range was well within the [trial c]ourt’s
appropriate exercise of discretion.
Trial Court Opinion, 2/22/18, at 1-2 (unnumbered; unnecessary
capitalization omitted). See also N.T., 1/3/2018, 5 (acknowledging that
Appellant’s health situation was “unfortunate” but nonetheless found that
incarceration was “appropriate to try to keep” Appellant from continuing to
commit crimes).
While we are cognizant of and sympathetic to Appellant’s health
struggles, our review of the record evidences no abuse of discretion on the
part of the trial court. See Commonwealth v. Antidormi, 84 A.3d 736,
760 (Pa. Super. 2014) (“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.”).
To the contrary, the record shows that in imposing a standard-range
sentence, the trial court properly considered all the factors, including both
Appellant’s health and lengthy criminal record, and was well within its
discretion to determine that Appellant’s continual criminal conduct called for
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a sentence of incarceration. See Commonwealth v. Mouzon, 812 A.2d
617, 620 (Pa. 2002) (“Traditionally, the trial court is afforded broad
discretion in sentencing criminal defendants ‘because of the perception that
the trial court is in the best position to determine the proper penalty for a
particular offense based upon an evaluation of the individual circumstances
before it.’”) (quoting Commonwealth v. Ward, 812 A.2d, 617 (Pa. 1990)).
Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/6/2018
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