J-S41036-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
COTY W. WAMPOLE :
:
Appellant : No. 71 MDA 2017
Appeal from the Judgment of Sentence Entered December 2, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0001569-2016
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 15, 2017
Appellant, Coty W. Wampole, appeals from the judgment of sentence
entered in the Berks County Court of Common Pleas, following his open
guilty plea to four counts of burglary.1 We affirm.
The relevant facts and procedural history of this case are as follows.
In March 2016, Appellant committed multiple burglaries in Amity Township
and Douglassville. During each burglary, Appellant entered a home without
the owner’s permission and took various items, including iPads, jewelry, a
laptop, a camera, a PlayStation 3, and cash. After the burglaries, Appellant
contacted the son of one of the victims with information about some of the
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1
18 Pa.C.S.A. § 3502(a)(2).
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*Retired Senior Judge assigned to the Superior Court.
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stolen items. An investigation into the burglaries led to Appellant’s arrest.
On April 15, 2016, the Commonwealth charged Appellant with five
counts of burglary, two counts of criminal trespass, and one count each of
theft by unlawful taking or disposition and receiving stolen property.
Appellant entered an open guilty plea on December 2, 2016, to four counts
of burglary (count #1, count #3, count #4, and count #5 from the criminal
information), in exchange for the Commonwealth’s withdrawal of the
remaining charges against Appellant. The court proceeded to sentencing
with the benefit of a pre-sentence investigation (“PSI”) report. The court
imposed a term of eighteen (18) to thirty-six (36) months’ imprisonment at
count #4, a consecutive term of six (6) to twenty-four (24) months’
imprisonment at count #1, a consecutive term of three (3) years’ probation
at count #3, and a consecutive term of three (3) years’ probation at count
#5. As a result, Appellant received an aggregate sentence of twenty-four
(24) to sixty (60) months’ imprisonment, followed by six (6) years’
probation. When the court imposed Appellant’s sentence, it stated it had
considered the following: (1) the PSI report; (2) Appellant’s lack of criminal
history; (3) the sentencing guidelines; (4) Appellant’s acceptance of
responsibility; (5) the severity of the offenses; (6) the sentencing
recommendations by the Commonwealth and Appellant’s counsel; and (7)
Appellant’s rehabilitative needs.
Appellant timely filed a post-sentence motion on December 12, 2016,
which asked the court to modify the sentence. Specifically, Appellant asked
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the court to resentence Appellant to a term of electronic monitoring in light
of the circumstances of the case and the relevant sentencing factors.
Alternatively, Appellant asked the court to impose all the sentences
concurrently. The court denied Appellant’s post-sentence motion on
December 13, 2016. Appellant timely filed a notice of appeal on January 11,
2017. That 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),
and Appellant timely complied on January 27, 2017.
Appellant raises the following issues for our review:
WHETHER APPELLANT’S SENTENCE OF 24 MONTHS—60
MONTHS IN A STATE CORRECTIONAL INSTITUTION
FOLLOWED BY SIX YEARS OF PROBATION WAS
MANIFESTLY EXCESSIVE, CLEARLY UNREASONABLE, AND
CONTRARY TO THE FUNDAMENTAL NORMS UNDERLYING
THE SENTENCING CODE WHEN THE TRIAL COURT FAILED
TO UTILIZE THE CORRECT OFFENSE GRAVITY SCORE FOR
THE CRIME OF BURGLARY AT COUNT 4, THEREFORE
IMPOSING AN AGGRAVATED SENTENCE WITHOUT
STATING SUFFICIENT REASONS ON THE RECORD FOR THE
UPWARD DEVIATION, IN VIOLATION OF 204 PA.CODE. §
303.13?
WHETHER THE [SENTENCING] COURT ERRED AND
ABUSED ITS DISCRETION BY FAILING TO MEANINGFULLY
CONSIDER THE FACTORS UNDER 42 PA.C.S.A. § 9721(B),
INCLUDING THAT THE SENTENCE IMPOSED “SHOULD
CALL FOR CONFINEMENT THAT IS CONSISTENT WITH THE
PROTECTION OF THE PUBLIC, THE GRAVITY OF THE
OFFENSE AS IT RELATES TO THE IMPACT ON THE LIFE OF
THE VICTIM AND ON THE COMMUNITY, AND THE
REHABILITATIVE NEEDS FOR [APPELLANT],” WHEN IT
SENTENCED APPELLANT TO 24 MONTHS TO 60 MONTHS
IN A STATE CORRECTIONAL INSTITUTION?
(Appellant’s Brief at 9).
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For purposes of disposition, we combine Appellant’s issues. Appellant
argues the court used the wrong offense gravity score when it calculated the
guideline range for Appellant’s sentence at count #4. Appellant claims the
use of the wrong offense gravity score resulted in an aggravated range
sentence at count #4, without adequate explanation for the sentence on the
record. Appellant further complains 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 specifically contends the court failed to consider certain
mitigating factors, including Appellant’s lack of criminal history, age, and
unique circumstances. Appellant concludes the court’s errors resulted in a
sentence that is manifestly unreasonable and excessive, and this Court
should vacate the judgment of sentence and remand for resentencing. As
presented, Appellant challenges the discretionary aspects of his sentence.2
See Commonwealth v. Lutes, 793 A.2d 949, 964 (Pa.Super. 2002)
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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). “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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(stating claim that sentence is manifestly excessive 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, 912 (Pa.Super. 2000). Prior to reaching the merits of a discretionary
aspect of sentencing issue:
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.A. § 9781(b).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013), appeal
denied, 621 Pa. 682, 76 A.3d 538 (2013) (quoting Commonwealth v.
Evans, 901 A.2d 528, 533 (Pa.Super 2006), appeal denied, 589 Pa. 727,
909 A.2d 303 (2006)). Generally, objections to the discretionary aspects of
a sentence are waived if they are not raised at the sentencing hearing or in a
motion to modify the sentence imposed at that hearing. Commonwealth
v. Mann, 820 A.2d 788, 794 (Pa.Super. 2003), appeal denied, 574 Pa. 759,
831 A.2d 599 (2003). Additionally, the failure to raise an issue in a court-
ordered Rule 1925(b) statement results in waiver of the issue on appeal.
Commonwealth v. Poncala, 915 A.2d 97, 100 (Pa.Super. 2006), appeal
denied, 594 Pa. 678, 932 A.2d 1287 (2007).
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When appealing the discretionary aspects of a sentence, an appellant
must also 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, 425-26, 812 A.2d 617,
621-22 (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), appeal denied, 600 Pa. 745,
964 A.2d 895 (2009), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174
L.Ed.2d 240 (2009). “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 913 (quoting Commonwealth v. Brown, 741 A.2d 726, 735
(Pa.Super. 1999) (en banc), appeal denied, 567 Pa. 755, 790 A.2d 1013
(2001). An allegation that the sentencing court failed to consider certain
mitigating factors, absent more, does not raise a substantial question for our
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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). Nevertheless, a claim
that the trial court failed to consider the relevant sentencing criteria in 42
Pa.C.S.A. § 9721(b), presents a substantial question for our view.
Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa.Super. 2012), appeal
denied, 619 Pa. 690, 63 A.3d 776 (2013).
Here, to the extent Appellant claims he received an aggravated range
sentence due to the court’s use of the incorrect offense gravity score at
count #4, Appellant failed to raise this issue at the sentence hearing, in a
post-sentence motion, or in his court-ordered Rule 1925(b) statement. See
Mann, supra; Poncala, supra. In fact, this issue appears for the first time
in Appellant’s appellate brief. Because Appellant failed to raise this claim in
the trial court, it is waived for purposes of our review. Id. With respect to
Appellant’s remaining discretionary aspects of sentencing claim, Appellant
properly preserved this issue in a timely filed post-sentence motion and Rule
2119(f) statement. Further, Appellant’s assertions that the court failed to
consider the relevant Sentencing Code criteria, including certain mitigating
factors, appears to raise a substantial question as to the discretionary
aspects of his sentence. See Riggs, supra.
Our standard of review of a challenge to 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) (quoting Commonwealth v.
Rodda, 723 A.2d 212, 214 (Pa.Super. 1999) (en banc)).
Pursuant to Section 9721(b), “the court shall follow the general
principle that the sentence imposed should call for confinement that is
consistent with the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b). “[T]he
court shall make as part of the record, and disclose in open court at the time
of sentencing, a statement of the reason or reasons for the sentence
imposed.” Id. Nevertheless, “[a] sentencing court need not undertake a
lengthy discourse for its reasons for imposing a sentence or specifically
reference the statute in question….” Commonwealth v. Crump, 995 A.2d
1280, 1283 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475
(2010). Rather, the record as a whole must reflect the sentencing court’s
consideration of the facts of the case and the defendant’s character. Id. “In
particular, the court should refer to the defendant’s prior criminal record, his
age, personal characteristics and his potential for rehabilitation.”
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Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.Super. 2002), appeal
denied, 582 Pa. 671, 868 A.2d 1198 (2005), cert denied, 545 U.S. 1148,
125 S.Ct. 2984, 162 L.Ed.2d 902 (2005).
Instantly, the record belies Appellant’s contentions. The court had the
benefit of a PSI report at sentencing. Therefore, we can presume it
considered the relevant factors when it sentenced Appellant. See Tirado,
supra at 368 (holding where sentencing court had benefit of PSI, law
presumes court was aware of and weighed relevant information regarding
defendant’s character and mitigating factors). Additionally, the court
explained its reasons for Appellant’s sentence as follows:
In the instant matter, the [c]ourt considered the relevant
sentencing criteria, the circumstances of the offense, and
the rehabilitative needs of [Appellant]. First, we stated,
that we considered the sentencing guidelines, which the
[Commonwealth] had previously read onto the record.
Second, we reflected that the circumstances of the
offense, which were unusual and occurring in a short
period of time, must be balanced with the volume of
offenses, the seriousness of the conduct, and the danger
to Appellant and the community. Third, we considered
that Appellant had taken responsibility for his actions.
Fourth, we considered Appellant’s rehabilitative needs,
which requires us to also…examine the severity of the
offenses and a need not to diminish these actions in the
eyes of the public.
* * *
After considering the aforementioned factors, which were
explored by [Appellant’s] counsel during [the sentencing]
hearing, we found that the seriousness of the offense
justified the period of incarceration given. We clearly
stated on the record…in sufficient detail that we found
Appellant’s crime spree troubling due to the volume of
first[-]degree felonies and the danger his actions posed to
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the community. Moreover, we considered Appellant’s
rehabilitative needs, which we stated must be balanced
with the seriousness of the offense. Balancing these two
considerations, among many others, we found that though
electronic monitoring was available, it was inappropriate.
Therefore, with sufficient specificity, we considered the
gravity of the offense, the victims, the community,
Appellant’s rehabilitative needs, and the availability of
alternative sentencing, when deciding the period of
incarceration.
(See Trial Court Opinion, filed February 16, 2017, at 4-5) (internal citations
and quotation marks omitted). We accept the court’s analysis. See
Hyland, supra. Therefore, Appellant is not entitled to relief on his
preserved challenge to the discretionary aspects of his sentence.
Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/2017
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