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[U] Commonwealth v. Philhower

Superior Court of Pennsylvania

February 5, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
LISA MARIE PHILHOWER Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence April 12, 2012 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0000123-2012; CP-48-CR-0003443-2011; CP-48-CR-0003444-2011; CP-48-CR-0003445-2011; CP-48-CR-0003446-2011; CP-48-CR-0003447-2011; CP-48-CR-0003448-2011

BEFORE: GANTMAN, J., OLSON, J., and PLATT, J. [*]

MEMORANDUM

GANTMAN, J.

Appellant, Lisa Marie Philhower, appeals from the judgment of sentence entered in the Northampton County Court of Common Pleas, following her guilty plea to six counts of conspiracy to commit burglary as a first-degree felony and one count of theft by unlawful taking or disposition.[1]We affirm.

The relevant facts and procedural history of this case are as follows. The Commonwealth charged Appellant with multiple counts of burglary, conspiracy to commit burglary, criminal attempt to commit burglary, criminal trespass, theft by unlawful taking or disposition, and related offenses, in connection with a string of fifteen burglaries of various residences. On February 7, 2012, Appellant pled guilty to six counts of conspiracy to commit burglary of a home—no one present, and one count of theft by unlawful taking or disposition. In exchange for her early cooperation with the authorities, the Commonwealth agreed to withdraw numerous charges related to all fifteen burglaries, but nevertheless required Appellant to pay total restitution claimed by all victims. On April 12, 2012, with the benefit of a presentence investigation ("PSI") report, the court sentenced Appellant to consecutive terms of twenty-seven (27) to fifty-four (54) months' imprisonment for each conspiracy conviction, and twelve (12) to twenty-four (24) months' imprisonment for the theft conviction, consecutive to the conspiracy sentences. Thus, the court imposed an aggregate sentence of one hundred and seventy-four (174) to three hundred and forty-eight (348) months' imprisonment (or fourteen and one-half (14½) to twenty-nine (29) years' imprisonment).

On Monday, April 23, 2012, Appellant timely filed a post-sentence motion, which the court denied on May 3, 2012. Appellant timely filed a notice of appeal on May 30, 2012. On June 4, 2012, 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.

Appellant raises two issues for our review:

DID THE TRIAL JUDGE ABUSE HER DISCRETION BY SENTENCING [APPELLANT] TO AN AGGREGATE SENTENCE OF 14½ YEARS TO 29 YEARS THEREBY IMPOSING A SENTENCE THAT WAS INCONSISTENT WITH THE SENTENCING CODE AND CONTRARY TO THE FUNDAMENTAL NORMS UNDERLYING THE SENTENCING PROCESS?
DID THE TRIAL JUDGE ABUSE HER DISCRETION BY NOT IMPOSING A [RECIDIVISM RISK REDUCTION INCENTIVE ("RRRI")] SENTENCE DESPITE THE FACT THAT APPELLANT DID NOT HAVE A CRIMINAL HISTORY INVOLVING CRIMES OF VIOLENCE AND THAT THE INSTANT OFFENSES DID NOT INVOLVE CRIMES OF VIOLENCE?

(Appellant's Brief at 4).

In her first issue, Appellant states she is severely addicted to crack cocaine. Appellant asserts the court did not adequately consider her rehabilitative needs upon sentencing. Appellant also maintains the court ignored mitigating factors such as her cooperation with police and that at the time of the crimes, Appellant had no substantiated acts of violence on her criminal record and a long history of drug abuse. For these reasons, Appellant complains her sentence was unreasonable. As presented, Appellant's claim challenges the discretionary aspects of sentencing. See Commonwealth v. Edwards, 71 A.3d 323, 329 (Pa.Super. 2013), appeal denied, ___Pa. ___, ___A.3d (2013) (explaining claim that sentence is manifestly excessive where court ignored defendant's rehabilitative needs and personal history challenges discretionary aspects of sentencing); Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996) (stating claim that sentence is excessive and unreasonable where court failed to consider several mitigating factors challenges discretionary aspects of sentencing).

A challenge to the discretionary aspects of sentencing is not automatically reviewable as a matter of right. Commonwealth v. Hunter, 768 A.2d 1136 (Pa.Super. 2001), appeal denied, 568 Pa. 695, 796 A.2d 979 (2001). Prior to reaching the merits of a discretionary sentencing issue:

[W]e 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 ...

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