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[U] Commonwealth v. Fries

Superior Court of Pennsylvania

June 17, 2013

RALPH FRIES, Appellant


Appeal from the Judgment of Sentence, May 25, 2011, in the Court of Common Pleas of Franklin County Criminal Division at Nos. CP-28-SA-0000107-2010, CP-28-SA-0000108-2010, CP-28-SA-0000109-2010, CP-28-SA-0000110-2010, CP-28-SA-0000111-2010, CP-28-SA-0000112-2010, CP-28-SA-0000113-2010, CP-28-SA-0000114-2010




This case has been remanded to this court by order of the Pennsylvania Supreme Court dated April 9, 2013 to address appellants' discretionary aspects of sentencing claim. Specifically, appellant claims that the sentence was excessive as the court did not "take into consideration [their] rehabilitative needs, [their] acceptance of responsibility, and [their] low level of danger to the community." (Appellants' brief at 10.) We affirm.

"A challenge to the discretionary aspects of a sentence must be considered a petition for permission to appeal, as the right to pursue such a claim is not absolute." Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.Super. 2004), appeal denied, 580 Pa. 695, 860 A.2d 122 (2004). 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 has been 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, see Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence is not appropriate under the Sentencing Code, see 42 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).

We note that appellants have filed a timely notice of appeal and have included in their brief the requisite separate statement of reasons for allowance of appeal pursuant to Pa.R.A.P. Rule 2119(f), 42 Pa.C.S.A. (See appellants' brief at 10.) In their 2119(f) statement, appellants essentially contend the court abused its discretion by failing to give adequate weight to mitigating factors at sentencing. However, appellants did not object at sentencing to the period of incarceration as excessive for failing to take into consideration mitigating factors. Pennsylvania Rule of Appellate Procedure 302 provides that "issues not raised in the lower court are waived and cannot be raised for the first time on appeal." Commonwealth v. Jarvis, 663 A.2d 790, 791 (Pa.Super. 1995). While Pa.R.Crim.P. 720(D) bars post-sentence motions in summary case appeals following a trial de novo, Rule 720(D) has not eliminated the duty to preserve issues that can properly be preserved without a post-sentence motion. See Commonwealth v. Dougherty, 679 A.2d 779, 784 n.3 (Pa.Super. 1996). Appellants could have preserved challenges to their sentences by objecting at the end of the sentencing hearing. Commonwealth v. Malovich, 903 A.2d 1247, 1251 (Pa.Super. 2006). They did not do so; thus, the claim is waived.

Nevertheless, we would also find that appellants have not raised a substantial question for our review. We will review the discretionary aspects of sentence only if this statement presents a substantial question that the sentence was not appropriate under the sentencing code. See Evans, supra; Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010).

In their Rule 2119(f) statement, appellants argue their sentences of incarceration are excessive under the circumstances because a violation of 18 Pa.C.S.A. § 5511(c) does not warrant such severe penalties. However, it is well established that a boilerplate claim of excessiveness of sentence does not raise a substantial question so as to permit appellate review where the sentence is within the statutory limits. Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545 (Pa.Super. 1995). Appellants' sentences were within the statutory limits. See 18 Pa.C.S.A. §§ 1104(3); 1105; 3304(b) (a person who has been convicted of a summary offense may be sentenced to imprisonment for a term which shall be fixed by the court at not more than 90 days). This particular claim, therefore, does not present a substantial question.

Appellant also argue that the court failed to consider mitigating factors; specifically, their rehabilitative needs, their acceptance of responsibility, and their low level of danger to the community. (Appellants' brief at 10.) An allegation that the sentencing court failed to consider or did not adequately consider certain factors does not necessarily raise a substantial question. Commonwealth v. Wellor, 731 A.2d 152, 155 (Pa.Super. 1999) (reiterating allegation that sentencing court "failed to consider" or "did not adequately consider" certain factors generally does not raise substantial question). There is ample precedent to support a determination that appellants' allegation fails to raise a substantial question that their sentence is not appropriate under the Sentencing Code. See Commonwealth v. Cannon, 954 A.2d 1222, 1228-1229 (Pa.Super. 2008), appeal denied, 600 Pa. 743, 964 A.2d 893 (2009) (claim that the trial court failed to consider the defendant's rehabilitative needs, age, and educational background did not present a substantial question); Commonwealth v. Coolbaugh, 770 A.2d 788, 793 (Pa.Super. 2001) (claim that sentence failed to take into consideration the defendant's rehabilitative needs and was manifestly excessive did not raise a substantial question where sentence was within statutory guidelines and within sentencing guidelines). Compare Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa.Super. 2003) (en banc) (stating substantial question is raised, however, where appellant alleges sentencing court imposed sentence in aggravated range without adequately considering mitigating circumstances).

Judgment of sentence affirmed.

Judgment Entered.

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