Com. v. Allen, L.

• Court: Superior Court of Pennsylvania
• Decided: March 11, 2016
• Docket: 1328 MDA 2015
• Status: Unpublished

Opinion

J-S18007-16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : LEON LAMONT ALLEN, : : Appellant : No. 1328 MDA 2015

Appeal from the Judgment of Sentence June 15, 2015 in the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0001153-2014

BEFORE: BOWES, LAZARUS, and STRASSBURGER,* JJ.

CONCURRING MEMORANDUM BY STRASSBURGER, J.:

FILED MARCH 11, 2016

I agree that Appellant’s judgment of sentence should be affirmed.

However, although I have expressed my opinion that the merits of claims

concerning the discretionary aspects of sentencing should be reached in all

cases as a matter of right,1 the current law requires that appellants must

raise in their 2119(f) statements substantial questions that their sentences

are inappropriate under the sentencing code. Contrary to the Majority’s

determination, I would not find that Appellant satisfied his burden in the

instant case.

1 Commonwealth v. Zirkle, 107 A.3d 127, 135 (Pa. Super. 2014) (Strassburger, J. dissenting) (opining that procedural hurdles for review of discretionary aspects of sentencing infringes upon a criminal defendant’s absolute right to an appeal).

*Retired Senior Judge assigned to the Superior Court. J-S18007-16

The Majority accurately quotes Commonwealth v. Kelly, 33 A.3d

638, 640 (Pa. Super. 2011), as stating, “A claim that a sentence is

manifestly excessive such that it constitutes too severe a punishment raises

a substantial question.” Majority Memorandum at 4-5. For that proposition,

Kelly refers to Commonwealth v. Mouzon, 812 A.2d 617, 624 (Pa. 2002).

In Mouzon, our Supreme Court held that “the Superior Court erred in

finding that Appellant’s excessiveness challenge failed to raise a substantial

question as a matter of law because his sentence was within the statutory

limits.” Id. at 628. But the Mouzon Court also explained:

This does not mean, however, that the Superior Court must accept bald allegations of excessiveness. Rather, only 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.

Id. at 627.

Here, Appellant in his 2119(f) statement: (1) claims that he accepted

responsibility for his “poor decision” while simultaneously reiterating his trial

defense that he did not commit the robbery; and (2) points to mitigating

evidence such as his obtaining a GED and completing two semesters of

college classes. Appellant’s Brief at 10.

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Appellant’s statement amounts to no more than a claim that the trial

court did not weigh the mitigating factors as heavily as Appellant wished.

This does not raise a substantial question that Appellant’s 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.” Mouzon, 812 A.2d at 627. See, e.g., Commonwealth v.

Disalvo, A.3d 900, 903 (Pa. Super. 2013) (quoting Commonwealth v.

Downing, 990 A.2d 788, 794 (Pa. Super. 2010)) (“[T]his Court has held on

numerous occasions that a claim of inadequate consideration of mitigating

factors does not raise a substantial question for our review.”).

Accordingly, I would hold that Appellant is entitled to no relief from

this Court based upon his failure to raise a substantial question.

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