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Commonwealth v. Disalvo

Superior Court of Pennsylvania

July 12, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
CRISTINO DISALVO, Appellant

Appeal from the Order October 29, 2012 In the Court of Common Pleas of Lycoming County Criminal Division at No.: CP-41-SA-0000083-2012

BEFORE: BOWES, J., WECHT, J., and PLATT, J. [*]

OPINION

PLATT, J.

Appellant, Cristino Disalvo, appeals from the order entered in the Lycoming County Court of Common Pleas re-imposing his sentence of confinement following his conviction for the summary offense of driving while his operator's license was under suspension (DUS).[1] We affirm.

On August 4, 2012, Old Lycoming Township Police Officer Robert Cochran stopped Appellant's vehicle because its right rear taillight was not operating properly. Officer Cochran issued Appellant a citation after learning that his license was suspended.[2]

On September 5, 2012, a magisterial district judge convicted Appellant of DUS following a summary trial. Because Appellant had three prior DUS convictions, the judge sentenced him to a term of thirty days' incarceration in county prison, with eligibility for electronic monitoring after the first five days of the term.[3] On September 14, 2012, Appellant filed a notice of appeal in the Lycoming County Court of Common Peas.

On October 29, 2012, the trial court held a summary appeal hearing at which Appellant admitted to the DUS offense and the only issue addressed was the sentence. On that same date, the court issued its order denying Appellant's request for a fine only and re-imposing the original sentence of thirty days' incarceration, modifying the sentence to provide for electronic monitoring eligibility during the entire thirty-day term. This timely appeal followed.[4]

On appeal, Appellant raises the following single issue for our review: "[w]hether the trial court abused its discretion by issuing a sentence that is manifestly excessive[?]" (Appellant's Brief, at 4). As an initial matter, we note that Appellant's issue challenges the discretionary aspects of his sentence. "It is well settled that, with regard to the discretionary aspects of sentencing, there is no automatic right to appeal." Commonwealth v. Austin, 2013 WL 1943994, at *8 (Pa. Super. filed May 13, 2013) (citation omitted).

Before [this Court may] reach the merits of [a challenge to the discretionary aspects of a sentence], we must engage in a four part analysis to determine: (1) whether the appeal is timely; (2) whether Appellant preserved his issue; (3) whether Appellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence [see Pa.R.A.P. 2119(f)]; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code. . . . [I]f the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case.

Id. (citation omitted).

Here, Appellant filed a timely notice of appeal, and preserved his claim that his sentence of confinement is excessive in the trial court, (see N.T. Summary Appeal Hearing, 10/29/12, at 4-5).[5] He has also included in his appellate brief a separate Rule 2119(f) statement. Therefore, we proceed to determine whether Appellant has presented a substantial question that his sentence is not appropriate under the Sentencing Code. See Austin, supra at *8.

The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. 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.

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (citations and quotation marks omitted).

Appellant, in his Rule 2119(f) statement, claims that the trial court imposed a manifestly excessive sentence of confinement "given the circumstances that led to the offense[.]" (Appellant's Brief, at 7). He develops this claim in the Argument section of his brief, asserting that the sentence is excessive because the court failed to consider certain mitigating factors, specifically, that when he was cited for DUS, he "was driving for a medical reason as his ...


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