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Commonwealth v. Miller

January 28, 2009

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
MARK WILLIAM MILLER, APPELLANT



Appeal from the Judgment of Sentence November 26, 2007 In the Court of Common Pleas of Monroe County Criminal at No(s): CP-45-CR-0001168-2005.

The opinion of the court was delivered by: Stevens, J.

BEFORE: STEVENS, KLEIN, and CLELAND, JJ.

OPINION

¶ 1 This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Monroe County on November 26, 2007, following Appellant's plea of guilty to the charge of murder of the third degree.*fn1 Herein, Appellant contends that the trial court abused its discretion when, in imposing sentence, it considered a charge that was nolle prossed as part of the plea agreement. We affirm the judgment of sentence.

¶ 2 On October 2, 2007, Appellant pled guilty to criminal homicide, murder of the third degree, in the October 31, 2001 killing of Helen Theresa Biank. "Specifically, [Appellant] admitted to shooting [Ms. Biank] in the back of her head with a Remington XP 100 firearm. In return for his plea, the Commonwealth agreed to nolle pros the remaining charges (Aggravated Assault, Arson, Tamper with/Fabricate Physical Evidence)." Trial Court Opinion filed 2/21/08 at 1. Thereafter, on November 26, 2007, Appellant was sentenced to a fifteen (15) to forty (40) year term of imprisonment.*fn2

Appellant filed a Motion for Modification of Sentence, which was denied by the court on February 20, 2008. The present appeal followed.*fn3

¶ 3 Herein, Appellant contends that the trial court abused its discretion when, at the time of sentencing, it considered an arson charge that was nolle prossed as part of his plea agreement. With regard to this claim, it is well-settled that appeals of a discretionary aspect of a sentence are not reviewable as a matter of right. Commonwealth v. McNear, 852 A.2d 401, 407 (Pa.Super. 2004). In order to invoke this Court's jurisdiction, an appellant must set forth in his brief a separate and concise statement of reasons relied upon in support of his appeal. Pa.R.A.P. 2119(f)*fn4; see Commonwealth v. Hudson, 820 A.2d 720, 727 (Pa.Super. 2003).

Therein, the appellant "must demonstrate that a substantial question exists that the trial judge's actions were either inconsistent with the specific provisions of the Sentencing Code, or contrary to the norms which underlie the sentencing process." Commonwealth v. Rickabaugh, 706 A.2d 826, 847 (Pa.Super. 1997) (quotations and citations omitted).

¶ 4 In the present case, Appellant has included in his brief a statement of reasons relied upon for allowance of appeal in which he references this Court's assertion that, "A manifest abuse of discretion exists when a sentence is enhanced due to charges that have been nolle prossed as part of a plea agreement, because notions of fundamental fairness are violated." Brief of Appellant at 10, quoting Commonwealth v. Stewart, 867 A.2d 589, 593 (Pa.Super. 2005). In that Appellant's statement presents a substantial question for review, we will address the merits thereof. See Id.

¶ 5 In reviewing a sentencing claim, we are mindful that:

We must accord the sentencing court great weight as it is in the best position to view the defendant's character, displays of remorse, defiance or indifference, and the overall effect and nature of the crime. An appellate court will not disturb the lower court's judgment absent a manifest abuse of discretion. In order to constitute an abuse of discretion, a sentence must either exceed the statutory limits or be so manifestly excessive as to constitute an abuse of discretion. Further, a sentence should not be disturbed where it is evident that the sentencing court was aware of sentencing considerations and weighed the considerations in a meaningful fashion.

Commonwealth v. Fish, 752 A.2d 921, 923 (Pa.Super. 2000) (citation and internal quotations omitted).

¶ 6 In fashioning a sentence, "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 offense as it relates to the impact on life of the victim and on the community, and the rehabilitative needs of the defendant." 42 Pa.C.S.A. § 9721(b). "[A] court is required to consider the particular circumstances of the offense and the character of the defendant." Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.Super. 2002) (citation omitted).

¶ 7 Herein, at the time of sentencing, Appellant's counsel supplemented the presentence investigation report ("PSI") with three (3) letters received on behalf of Appellant. N.T. 11/26/07 at 9.*fn5 Counsel proceeded to present Appellant's father, mother, and ...


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