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[U] Commonwealth v. Friel

Superior Court of Pennsylvania

March 10, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
JAMES WILLIAM FRIEL Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence November 1, 2012 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0006758-2011 CP-09-CR-0007578-2011

BEFORE: GANTMAN, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM

GANTMAN, J.

Appellant, James William Friel, appeals from the judgment of sentence entered in the Bucks County Court of Common Pleas, following his guilty plea to two counts each of theft by unlawful taking-movable property, receiving stolen property, and robbery; plus aggravated assault, fleeing or attempting to elude police officer, accidents involving death or personal injury, accidents involving death or personal injury while not properly licensed, accidents involving damage to attended vehicle or property, reckless driving, burglary; plus two counts of criminal trespass; plus stalking, and harassment (18 Pa.C.S.A. §§ 3921(a), 3925(a), 3701(a)(1), 2702(a)(6), 75 Pa.C.S.A. §§ 3733(a), 3742(a), 3742.1(a), 3743(a), 3736(a), 18 Pa.C.S.A. §§ 3502(a), 3503(a)(1), 2709.1(a)(1), and 2709(a)(3), respectively). We affirm.

In its opinion, the trial court fully and correctly sets forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them.

Appellant raises the following issue for our review:

DID THE SENTENCING COURT ERR IN SENTENCING APPELLANT TO AN AGGREGATE TERM OF [INCARCERATION] OF NO LESS THAN TEN NOR MORE THAN TWENTY YEARS, WHEN IN DOING SO THE COURT IMPROPERLY WEIGHED THE MITIGATING EVIDENCE PRESENTED BY THE DEFENSE AND THE FACTORS PRESENTED AND ARGUED BY THE [COMMONWEALTH]?

(Appellant's Brief at 4).

Appellant argues that his sentence substantially compromises the Pennsylvania sentencing scheme. Appellant contends that his sentence for robbery is at the top of the standard range, his sentence for theft is in the aggravated range, and his sentence for stalking exceeds the aggravated sentencing range. Appellant alleges the court focused only on the nature of his crimes, the impact on the victim, and Appellant's prior record, but failed to give proper weight to several mitigating factors when sentencing Appellant. Specifically, Appellant maintains the court did not consider his rehabilitative needs, and how drugs, alcohol, and Appellant's mental illness played a role in his criminal behavior. Appellant concludes the court erred in failing to consider these factors before sentencing Appellant. Appellant challenges the discretionary aspects of his sentence.[1] See Commonwealth v. Cruz-Centeno, 668 A.2d 536 (Pa.Super. 1995) (explaining claim that court did not consider mitigating factors challenges discretionary aspects of sentencing).

Challenges to the discretionary aspects of sentencing do not entitle an appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910 (Pa.Super. 2000). 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 the sentence appealed from is not appropriate under the Sentencing Code, 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) (internal citations omitted).

When appealing the discretionary aspects of a sentence, an appellant must invoke the appellate court's jurisdiction by including in his brief a separate concise statement demonstrating a substantial question as to the appropriateness of the sentence under the Sentencing Code. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f). The concise statement must indicate "where the sentence falls in relation to the sentencing guidelines and what particular provision of the code it violates." Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa.Super. 2004) (quoting Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa.Super. 2000), appeal denied, 563 Pa. 672, 759 A.2d 920 (2000)). "The requirement that an appellant separately set forth the reasons relied upon for allowance of appeal 'furthers the purpose evident in the Sentencing Code as a whole of limiting any challenges to the trial court's evaluation of the multitude of factors impinging on the sentencing decision to exceptional cases.'" Commonwealth v. Williams, 562 A.2d 1385, 1387 (Pa.Super. 1989) (en banc).

[O]nly where the appellant's Rule 2119(f) statement sufficiently articulates the manner in which the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process, will such a statement be deemed adequate to raise a substantial question so as to permit a grant of allowance of appeal of the discretionary aspects of the sentence. See [Commonwealth v. Koehler, 558 Pa. 334, 370, 737 A.2d 225, 244 (1999)] (party must articulate why sentence raises doubts that sentence was improper under the Sentencing Code).

Mouzon, supra at 435, 812 A.2d at 627.

The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. Commonwealth v. Anderson, 830 A.2d 1013 (Pa.Super. 2003). 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." Sierra, supra at 912-13. A substantial question is raised where an appellant alleges the sentencing court erred by imposing an aggravated range sentence without consideration of mitigating circumstances. Commonwealth v. Felmlee, 828 A.2d 1105 (Pa.Super. 2003) (en banc).

Instantly, Appellant arguably preserved his claim in his post-sentence motion and Rule 2119(f) statement. Nevertheless, after a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Wallace H. Bateman, Jr., we conclude Appellant's discretionary aspects of sentencing claim merits no relief. See id. The trial court opinion comprehensively discusses and properly disposes of the question presented. (See Trial Court Opinion, filed March 18, 2013, at 6-10) (finding: court reviewed mental health report at sentencing hearing; court considered Appellant's ongoing drug and alcohol problems for which he is receiving treatment, his mental illness for which he is receiving treatment, his driving force in committing these crimes which was his desire to spend time with his child, his attendance at programs and classes while incarcerated, and his expressed remorse and acceptance of responsibility for his crimes; Appellant received sentence in standard range for robbery offenses; Appellant received sentence above standard range for theft offenses; Appellant received minimum sentence outside guidelines to statutory maximum for stalking offense; court explained sentencing guidelines ranges at sentencing hearing; court cited its reasons on record for sentencing Appellant outside sentencing guidelines for stalking offense). The record supports the trial court's decision; therefore, we see no reason to disturb it. Accordingly, we affirm on the basis of the trial court's opinion.

Judgment of sentence affirmed.

Judgment Entered.

(IMAGE OMITTED).


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