J-S73041-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES EARL ROBINSON, JR. :
:
Appellant : No. 947 WDA 2018
Appeal from the PCRA Order Entered May 25, 2018
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0002415-2016
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.
MEMORANDUM BY OLSON, J.: FILED JANUARY 11, 2019
Appellant, James Earl Robinson, Jr., appeals from the order entered on
May 25, 2018, denying relief on his first petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9543. We affirm.
We briefly summarize the relevant facts and procedural history of this
case as follows. On June 14, 2016, Appellant attempted to strike his
ex-girlfriend in the head with a candle in a glass jar. When she used her hands
to protect and cover her head, Appellant struck the victim’s left wrist causing
severe swelling and a small laceration. During this same incident, Appellant
also struck the eleven-year-old daughter of his ex-girlfriend with a belt across
her legs and back. On February 10, 2017, a jury convicted Appellant of two
counts of simple assault, 18 Pa.C.S.A. § 2701(a)(1). At the sentencing
hearing, defense counsel requested a continuance because Appellant was not
present, despite knowing about the hearing, because his maternal aunt was
J-S73041-18
ill. The trial court denied the request and sentenced Appellant in absentia to
two consecutive sentences of 12 to 24 months of incarceration. Appellant did
not file a post-sentence motion seeking modification of his sentence. Instead,
on September 5, 2017, Appellant filed a pro se motion to correct an illegal
sentence. On September 18, 2017, the trial court denied the request as
untimely and without merit. On January 2, 2018, Appellant filed a timely pro
se PCRA petition. On January 9, 2018, the court appointed PCRA counsel to
represent Appellant. On March 12, 2018, appointed counsel filed a
supplemental PCRA petition. On April 23, 2018, the court entered notice of
its intent to dismiss the petition pursuant to Pa.R.Crim.P. 907. Appellant did
not respond. On May 25, 2018, the court entered an order denying Appellant
relief. This timely appeal followed.1
On appeal, Appellant presents the following issue for our review:
Whether the [c]ourt erred in imposing the [] maximum sentence
for a [second-degree misdemeanor] and further imposing the
sentences to run consecutively although the underlying criminal
conduct was the result of a single discrete incident encompassed
within one docket?
Appellant’s Brief at 2.
Appellant argues, “the imposition of consecutive terms [of
imprisonment] constituted an abuse of discretion and was unwarranted.” Id.
____________________________________________
1 Appellant filed a notice of appeal on June 25, 2018. On the same day, the
court ordered Appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied on July 16, 2018.
The court issued an opinion pursuant to Pa.R.A.P. 1925(a) on July 16, 2018,
largely relying upon its rationale in the Rule 907 notice.
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at 5. He “concedes that he has committed a crime but [argues] that the
punishment and sanction is excessive and not in accord with the facts of this
case.” Id. Appellant does not, however, challenge the legality of the
sentences imposed.
“Our standard of review for issues arising from the denial of PCRA relief
is well-settled. We must determine whether the PCRA court's ruling is
supported by the record and free of legal error.” Commonwealth v.
Johnson, 179 A.3d 1153, 1156 (Pa. Super. 2018) (internal quotation marks
omitted). Appellant frames his request for collateral relief exclusively in terms
of a challenge to the discretionary aspects of his sentence. See
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (challenge
to the consecutive nature of sentences implicates the trial court’s discretion).
We have previously determined, however, that “[r]equests for relief with
respect to the discretionary aspects of sentence are not cognizable in PCRA
proceedings.” Commonwealth v. Wrecks, 934 A.2d 1287, 1289 (Pa. Super.
2007); see also 42 Pa.C.S.A. § 9543(2) (eligibility for relief under PCRA).
Because Appellant’s claims are not cognizable under the PCRA, the PCRA court
properly denied relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/2019
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