Opinion
J-S61043-15 No. 636 MDA 2015
10-27-2015
COMMONWEALTH OF PENNSYLVANIA, Appellee v. EMMANUEL PERREL JONES, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P 65.37
Appeal from the Judgment of Sentence Entered February 23, 2015, in the Court of Common Pleas of Lancaster County, Criminal Division, at No(s): CP-36-CR-0005293-2000 BEFORE: PANELLA, WECHT, and STRASSBURGER, JJ. MEMORANDUM BY STRASSBURGER, J.:
Retired Senior Judge assigned to the Superior Court.
Emmanuel Perrel Jones (Appellant) appeals from a judgment of sentence which followed the revocation of his probation. We affirm.
The trial court aptly summarized the background underlying this matter as follows.
On October 27, 2000, Lancaster City Police executed a search warrant at 721 North Shippen Street, Lancaster, Pennsylvania. During the search, [Appellant] was found in possession of approximately three grams of crack cocaine, along with associated paraphernalia. [Appellant] was arrested and charged with two offenses, as follows: (1) PWID-Cocaine [] and (2) Possession of Drug Paraphernalia []. [Appellant] pled guilty to both counts and was sentenced on December 6, 2001. On Count 1, [h]e was sentenced to a minimum of 1 year of incarceration to a maximum of 2 years of incarceration, followed by two years of probation consecutive to the incarceration on Count 1 and a fine of $5000. On Count 2, [Appellant] was sentenced to 1 year of probation consecutive to the incarceration period on Count 1. [He] was given credit for 353 days. Costs and Restitution totaled $831.13. The sentences were concurrent to any other sentences.
Since [Appellant's] release from the SCI on December 17, 2002, he committed eight probation violations for new criminal charges, drug use, missed appointments, and discharge from the Wedge Treatment Center.Trial Court Opinion, 6/4/2015, at 1-3 (footnotes, citations, and unnecessary capitalization omitted).
[Appellant stipulated to his eighth probation violation. On February 23, 2015, the trial court sentenced him] to one-and-a-half to three years of incarceration with credit from September 25, 2014 until the sentencing date, noted that [Appellant] was RRRI eligible with a RRRI minimum sentence of thirteen and one-half months, and made him immediately eligible for any drug, alcohol, educational, and vocational programs while incarcerated.
On March 6, 2015, [Appellant] filed a counseled nunc pro tunc post-sentence motion to modify sentence. [The trial court granted Appellant's request to file his post-sentence motions nunc pro tunc.] [Appellant's] motion to modify sentence alleged six grounds for reconsideration of [his] sentence: (1) that [the court] failed to consider the Sentencing Guidelines, 42 Pa.C.S.A. § 9721(b) in fashioning [his] sentence; (2) that [the court] failed to consider the protection of the public because [Appellant's] violation does not threaten the public in any way; (3) that [the court] failed to consider the gravity of the offense as it relates to the impact on the life of the victim and on the community because [Appellant's] alleged disease is both allegedly de minimis and non-threatening to himself and the community; (4) that [the court] failed to consider the rehabilitative needs of [Appellant] because the sentence imposed treats addiction as a crime rather than as a medical condition; (5) that [the court] abused [its] discretion by imposing a sentence that was unreasonable and excessive under the circumstances; and (6) that [the court] failed to adequately consider the age of the docket, and especially the amount of time which had passed since [Appellant] committed a new crime, when fashioning [Appellant's] sentence. [The trial court] denied [Appellant's] motion to modify sentence [in a] March 17, 2015 Order. [Appellant] then filed a notice of appeal with the Superior Court of Pennsylvania on March 18, 2015. [Appellant] filed a timely concise statement of matters complained of on appeal[.]
According to Appellant, his latest violation stems from his testing positive for marijuana. Appellant's Brief at 6.
In his brief to this Court, Appellant asks us to consider one question, namely, "Was a sentence of one and one half to three years [of] incarceration for a probation and parole violation so manifestly excessive as to constitute too severe a punishment and contrary to the fundamental norms of the sentencing process?" Appellant's Brief at 4. Appellant challenges the discretionary aspects of his sentence.
"[T]his Court's scope of review in an appeal from a [probation] revocation sentencing includes discretionary sentencing challenges." Commonwealth v. Cartrette , 83 A.3d 1030, 1034 (Pa. Super. 2013)
It is well settled that, with regard to the discretionary aspects of sentencing, there is no automatic right to appeal.
Commonwealth v. Disalvo , 70 A.3d 900, 902 (Pa. Super. 2013) (citations 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; 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.
Appellant timely filed a notice of appeal; he preserved his issue in his post-sentence motion; and his brief contains a Pa.R.A.P. 2119(f) statement. Thus, we must determine whether Appellant has raised a substantial question worthy of appellate review.
The determination of whether a substantial question exists must be made on a case-by-case basis. It is only where an aggrieved party can articulate clear reasons why the sentence issued by the trial court compromises the sentencing scheme as a whole that we will find a substantial question and review the decision of the trial court. This [C]ourt has been inclined to find that a substantial question exists where 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 underlying the sentencing process.
Commonwealth v. Lutes , 793 A.2d 949, 964 (Pa. Super. 2002) (citations omitted).
Also, a bald allegation that a sentence is excessive does not raise a substantial question.
In his Pa.R.A.P. 2119(f) statement, Appellant contends that his sentence is excessive because the trial court "failed to consider [his] need for drug and alcohol rehabilitation as well as the fact that the public did not need to be protected from [him] as he had not committed a crime in seven years." Appellant's Brief at 10. Appellant has raised a substantial question for our review. Commonwealth v. Riggs , 63 A.3d 780, 786 (Pa. Super. 2012) (concluding that Riggs raised a substantial question by arguing "that the trial court failed to consider relevant sentencing criteria, including the protection of the public, the gravity of the underlying offense and [Rigg's] rehabilitative needs[], as 42 Pa.C.S.A § 9721(b) requires...").
The proper standard of review when considering whether to affirm the sentencing court's determination is an abuse of discretion. The trial court is afforded broad discretion in sentencing criminal defendants because of the perception that the trial court is in the best position to determine the proper penalty for a particular offense based upon an evaluation of the individual circumstances before it. An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.Commonwealth v. Hoch , 936 A.2d 515, 519 (Pa. Super. 2007) (citations and quotation marks omitted).
After a review of the parties' briefs and the certified record, we conclude that the trial court's 1925(a) opinion adequately addresses and properly rejects Appellant's challenge to the discretionary aspects of his sentence. We therefore adopt that portion of the court's opinion in response to Appellant's argument on appeal. Trial Court Opinion, 6/4/2015, at 7-10. The parties shall attach a copy of the trial court's April 30, 3015 opinion to this memorandum in the event of further proceedings.
For these reasons, we affirm Appellant's judgment of sentence.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/27/2015
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