Opinion
J-S25006-18 No. 873 WDA 2017
05-08-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. BRANDON S. VARNER Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence April 5, 2017
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0003062-2015 BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Brandon S. Varner, appeals from the judgment of sentence entered in the Westmoreland County Court of Common Pleas, following his jury trial convictions for theft by unlawful taking, theft by failure to make required disposition of funds received, dealing in proceeds of unlawful activity, and theft of property lost, mislaid or delivered by mistake. We affirm.
18 Pa.C.S.A. §§ 3921(a); 3927(a); 5111(a)(1); 3924, respectively.
In its opinion, the trial court accurately set forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them.
Appellant raises one issue for our review:
WHETHER THE TRIAL COURT ERRED IN SENTENCING [APPELLANT] TO A PERIOD OF INCARCERATION OF NOT LESS THAN 2.5 YEARS NOR MORE THAN 5 YEARS WHICH SENTENCE, WHILE WITHIN THE GUIDELINES, WAS IMPOSED INVOLVING CIRCUMSTANCES WHERE THE
APPLICATION OF THE GUIDELINES WAS CLEARLY UNREASONABLE. 42 PA.C.S.A. § 9781(C)(2).(Appellant's Brief at 5).
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:
We 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).
What constitutes a substantial question must be evaluated on a case-by-case basis. Commonwealth v. Paul , 925 A.2d 825 (Pa.Super. 2007). 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. Sierra , 752 A.2d 910, 913 (Pa.Super. 2000) (internal citation omitted). In other words, an appellant's Rule 2119(f) statement must sufficiently articulate 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. Commonwealth v. Mouzon , 571 Pa. 419, 812 A.2d 617 (2002).
Instantly, Appellant timely filed post-sentence motions challenging the discretionary aspects of his sentence, timely filed a notice of appeal, and included the requisite Rule 2119(f) statement in his appellate brief. See Evans , supra. Appellant essentially complains the court ignored his health issues, minimal criminal record, the non-violent economic nature of Appellant's crimes, that Appellant is a single father to one of his daughters, and that he would be able to make restitution payments to his victims more expeditiously if the court imposed a sentence of intermediate punishment. Nevertheless, these claims arguably are not substantial questions. See Commonwealth v. Cruz-Centeno , 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996) (explaining general allegation that sentencing court failed to consider or adequately consider certain factors does not raise substantial question).
Moreover, after a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Richard E. McCormick, Jr., we conclude Appellant's issue merits no relief. The trial court opinion comprehensively discusses and properly disposes of the question presented. ( See Trial Court Opinion, filed September 6, 2017, at 3-4) (finding: court imposed minimum sentence for count three (dealing in proceeds of unlawful activity) within low-aggravated range of guidelines; court imposed sentences of imprisonment at count one (theft by unlawful taking) and count three concurrently; court had benefit of pre-sentence investigation report prior to sentencing; transcript of post-sentence motion hearing makes clear court was aware of and considered all Section 9721(b) factors; sentence imposed was within guidelines and was not unreasonable; court did not abuse sentencing discretion). Accordingly, Appellant's sentencing claim arguably fails to raise a substantial question as to the discretionary aspects of sentencing. In any event, we affirm based on the trial court's opinion.
The court imposed a standard range sentence at count one. Count two (theft by failure to make required disposition of funds received) merged with count one for sentencing purposes, and the court imposed a term of five years' probation at count four (theft of property lost, mislaid, or delivered by mistake).
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/8/2018
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