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[U] Commonwealth v. Seibert

Superior Court of Pennsylvania

August 28, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
CHRIS ROBBIN SEIBERT A/K/A CHRISTOPHER ROBBIN SEIBERT, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
CHRIS ROBBIN SEIBERT A/K/A CHRISTOPHER ROBBIN SEIBERT, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence entered December 11, 2012, in the Court of Common Pleas of Delaware County, Criminal Division, at No(s): CP-23-CR-0004102-2012, CP-23-CR-0004110-2012.

BEFORE: ALLEN, COLVILLE, and STRASSBURGER, [*] JJ.

MEMORANDUM

ALLEN, J.

In these consolidated appeals, Chris Robbin Seibert a/k/a Christopher Robbin Seibert ("Appellant"), challenges the discretionary aspects of his sentence. We affirm.

The trial court summarized the pertinent facts and procedural history as follows:

On December 17, 2011, the Marcus Hook Police [D]epartment was called to investigate a bar fight during which several people were hurt. After reviewing video surveillance tape footage showing [Appellant] striking three victims, Officer Nicole Lantz applied for a warrant for [Appellant's] arrest. [Appellant was later arrested on three counts of simple assault, 18 Pa.C.S.A. § 2701, and related charges at Docket No. CP-23-CR-0004110-2012.]
On December 29, 2011, while on routine patrol, Officer Lantz observed [Appellant] walking down the street in an unsteady manner. She arrested him, and, during a search of his person, cocaine was seized from his right front pants pocket. She charged [Appellant] with: [(1) possession of a controlled substance (cocaine), 35 P.S. § 780-113(a)(16); and (2) possession of drug paraphernalia, 35 P.S. § 780-113(a)(32)]. [Appellant] entered an open guilty plea [to one count of simple assault and both drug charges].
Prior to the sentencing hearing, [defense] counsel submitted an "Attorney Generated Presentence Investigation Report" and a sentencing memorandum, wherein he requested that the Court impose a county rather than a state sentence.
At the sentencing held on December 11, 2012, the Commonwealth recommended that the Court impose: 6-24 months of incarceration on the assault charge; 12-24 months [of] incarceration on the possession charge; and, one year probation on the paraphernalia charge. Defense counsel again recommended a term of 11½ to 23 months [of] incarceration in a county jail. After hearing arguments from all counsel and testimony from [Appellant], [the trial court] imposed the following sentence: (1) on the simple assault charge, 12-24 months in a state correctional institution; (2) on the possession of controlled dangerous substance charge, 12-24 months in a state correctional institution; and (3) on the paraphernalia charge, one year of state probation. All sentences [were] to run consecutively [for an aggregate sentence of two to four years of incarceration, followed by a one-year probationary term].
On December 20, 2012, defense counsel filed a "Post Sentence Motion to Modify Sentence." Counsel admitted that the sentence imposed was "within the sentencing guidelines, " but he asserted that it was a "manifest abuse of discretion" under the criteria in the [S]entencing [C]ode. On December 27, 2012, [the trial court] denied [Appellant's] motion.

Trial Court Opinion, 4/8/13, at 1-2 (citations omitted). This timely appeal followed. Both Appellant and the trial court have complied with Pa.R.A.P. 1925.

In his statement of issues, Appellant asserts that the trial court erred "as a matter of manifest abuse of discretion" when it imposed the separate one to two year sentences for the simple assault and possession charges when: (1) only minor injuries resulted from the assault; (2) Appellant's prior record "consisted mostly of misdemeanors, but also three felonies, mostly relating either to drunk or disorderly situations or domestic situations"; (3) the trial court failed to give "due consideration" to Appellant's character and background; (4) the trial court erred by imposing consecutive sentences on two charges; and (5) the trial court "failed to engage in individualized sentencing since the sentencing court did not recite any information about [Appellant's] character and background at the sentencing hearing, and although the court had before it an attorney generated Pre-sentence Investigation Questionnaire and Presentence Memorandum of Law, the court did not make reference to the questionnaire at the sentencing hearing as required by case law[.]" See Appellant's Brief at 4-5.[1]

A challenge to the discretionary aspects of a sentence is not appealable as of right. Rather, Appellant must petition for allowance of appeal pursuant to 42 Pa.C.S.A. § 9781. Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa. Super. 2004). When an appellant challenges a discretionary aspect of sentencing, we must conduct a four-part analysis before we reach the merits of the appellant's claim. Commonwealth v. Allen, 24 A.3d 1059, 1064 (Pa. Super. 2011). In this analysis, we must determine: (1) whether the present appeal is timely; (2) whether the issue raised on appeal was properly preserved; (3) whether Appellant has filed a ...


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