J-S62021-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : KIARA DESHAWN CAROTHERS : No. 487 WDA 2019
Appeal from the Judgment of Sentence Entered, March 8, 2019, in the Court of Common Pleas of Erie County, Criminal Division at No(s): CP-25-CR-0002556-2018.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY KUNSELMAN, J.: FILED FEBRUARY 3, 2020
The Commonwealth of Pennsylvania appeals from the judgment of
sentence imposed on Kiara Deshawn Carothers following her conviction of
firearms not to be carried without a license and recklessly endangering
another person.1 We affirm.
Carothers discharged a firearm in the direction of a group of people,
apparently in retaliation for the smashing of a window of the vehicle in which
she was riding as a passenger. See Trial Court Opinion, 5/28/19, at 1.
Carothers was arrested and charged at Count One with firearms not to be
carried without a license, and at Count Two with recklessly endangering
another person. She pleaded guilty to both counts. On January 30, 2019, the
____________________________________________
1 See 18 Pa.C.S.A. §6106(a)(1), 2705 J-S62021-19
trial court sentenced her at Count One to forty-eight months of a restrictive
intermediate punishment program (“RIPP”), including five months of
incarceration, followed by six months of electronic monitoring, followed by
four months of intensive supervision. At Count Two, the trial court sentenced
her to one year of probation, consecutive to Count One. See id.
The Commonwealth filed a motion for reconsideration. Following a
hearing, the trial court resentenced Carothers as follows: at Count One to sixty
months of RIPP, including five months of incarceration, followed by nine
months of electronic monitoring, followed by three months of intensive
supervision; and at Count Two to one year of probation, consecutive to Count
One. See id. at 2.
The Commonwealth filed a timely notice of appeal. The trial court
directed the Commonwealth to file a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal. In response, the Commonwealth filed a
concise statement in which it challenged the discretionary aspects of
Carother’s sentence, as follows:
1. The Commonwealth respectfully posits that [the trial] court abused its discretion in imposing mitigated-range sentences at both counts, which sentences run afoul of the spirit and express objectives of the Pennsylvania Sentencing Guidelines, and for which no justification is apparent.
2. Further, to the extent that [the trial] court relied on [Carother’s] production of offspring and the financial costs associated with imposing standard-range sentences (namely, [the] court’s assertion that housing an inmate costs $42,000 per year), the Commonwealth respectfully asserts that said circumstances do not constitute mitigating factors and were
-2- J-S62021-19
improperly relied upon in [the] court’s imposition of the mitigated-range sentences referenced above.
Concise Statement, 4/7/19, at unnumbered 2-3 (some capitalization omitted).
Initially, we observe that a concise statement must be specific enough
for the trial court to identify and address each issue the appellant wishes to
raise on appeal, and the court may find waiver where a concise statement is
too vague. Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super.
2011). “When a court has to guess what issues an appellant is appealing, that
is not enough for meaningful review.” Commonwealth v. Dowling, 778
A.2d 683, 686 (Pa. Super. 2001) (citation omitted). “A Concise Statement
which is too vague to allow the court to identify the issues raised on appeal is
the functional equivalent of no Concise Statement at all.” Id. at 686-87.
Here, the trial court deemed the Commonwealth’s issues waived as
vague. See Trial Court Opinion, 5/28/19, at 2-3. The trial court characterized
the first issue as “generic,” and noted that “the Commonwealth fails to give
any specific reasons how the sentences ‘run afoul of the express objectives of
the Pennsylvania Sentencing Guidelines.’” Trial Court Opinion, 5/28/19, at 3.
The trial court additionally determined that the Commonwealth’s
discretionary challenges were not reviewable. As we have explained,
“[c]hallenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,
170 (Pa. Super. 2010). Prior to reaching the merits of a discretionary
sentencing issue, this Court conducts a four-part analysis to determine:
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(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, [see] 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, [see] 42 Pa.C.S.A. § 9781(b).
Id. (citation omitted). We determine the existence of a substantial question
on a case-by-case basis. See Commonwealth v. Feucht, 955 A.2d 377,
384 (Pa. Super. 2008). 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. Diehl, 140 A.3d 34, 44-45 (Pa. Super. 2016)
(internal citations and quotation marks omitted).
The trial court concluded that the Commonwealth failed to raise a
substantial question that the sentences appealed from are not appropriate
under the Sentencing Code. Trial Court Opinion, 5/28/19, at 3. Specifically,
the trial court stated “the Commonwealth’s [Pa.R.A.P.] 1925(b) statement
fails to set forth a plausible argument the sentences at Counts One or Two
violated a particular provision of the Sentencing Code or were contrary to the
fundamental norms underlying the sentencing scheme.” Id. at 3-4.
Notably, with respect to its first issue, the Commonwealth argued in its
concise statement that the “sentences run afoul of the spirit and express
objectives of the Pennsylvania Sentencing Guidelines.” Concise Statement,
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4/7/19, at unnumbered 2. However, in its Rule 2119(f) statement, the
Commonwealth stated its first issue differently, arguing instead that “the trial
court failed to consider general sentencing standards set forth in 42 Pa.C.S.A.
§ 9721(b), and failed to properly consider and apply the sentencing factors
within 42 Pa.C.S.A. § 9722 and 9725.” Commonwealth’s Brief at 5.
Under our appellate rules, an appellant may not raise issues on appeal
that were not raised before the trial court. See Pa.R.A.P. 302(a) (providing
that issues not raised in the lower court are waived and cannot be raised for
the first time on appeal).
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J-S62021-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : KIARA DESHAWN CAROTHERS : No. 487 WDA 2019
Appeal from the Judgment of Sentence Entered, March 8, 2019, in the Court of Common Pleas of Erie County, Criminal Division at No(s): CP-25-CR-0002556-2018.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY KUNSELMAN, J.: FILED FEBRUARY 3, 2020
The Commonwealth of Pennsylvania appeals from the judgment of
sentence imposed on Kiara Deshawn Carothers following her conviction of
firearms not to be carried without a license and recklessly endangering
another person.1 We affirm.
Carothers discharged a firearm in the direction of a group of people,
apparently in retaliation for the smashing of a window of the vehicle in which
she was riding as a passenger. See Trial Court Opinion, 5/28/19, at 1.
Carothers was arrested and charged at Count One with firearms not to be
carried without a license, and at Count Two with recklessly endangering
another person. She pleaded guilty to both counts. On January 30, 2019, the
____________________________________________
1 See 18 Pa.C.S.A. §6106(a)(1), 2705 J-S62021-19
trial court sentenced her at Count One to forty-eight months of a restrictive
intermediate punishment program (“RIPP”), including five months of
incarceration, followed by six months of electronic monitoring, followed by
four months of intensive supervision. At Count Two, the trial court sentenced
her to one year of probation, consecutive to Count One. See id.
The Commonwealth filed a motion for reconsideration. Following a
hearing, the trial court resentenced Carothers as follows: at Count One to sixty
months of RIPP, including five months of incarceration, followed by nine
months of electronic monitoring, followed by three months of intensive
supervision; and at Count Two to one year of probation, consecutive to Count
One. See id. at 2.
The Commonwealth filed a timely notice of appeal. The trial court
directed the Commonwealth to file a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal. In response, the Commonwealth filed a
concise statement in which it challenged the discretionary aspects of
Carother’s sentence, as follows:
1. The Commonwealth respectfully posits that [the trial] court abused its discretion in imposing mitigated-range sentences at both counts, which sentences run afoul of the spirit and express objectives of the Pennsylvania Sentencing Guidelines, and for which no justification is apparent.
2. Further, to the extent that [the trial] court relied on [Carother’s] production of offspring and the financial costs associated with imposing standard-range sentences (namely, [the] court’s assertion that housing an inmate costs $42,000 per year), the Commonwealth respectfully asserts that said circumstances do not constitute mitigating factors and were
-2- J-S62021-19
improperly relied upon in [the] court’s imposition of the mitigated-range sentences referenced above.
Concise Statement, 4/7/19, at unnumbered 2-3 (some capitalization omitted).
Initially, we observe that a concise statement must be specific enough
for the trial court to identify and address each issue the appellant wishes to
raise on appeal, and the court may find waiver where a concise statement is
too vague. Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super.
2011). “When a court has to guess what issues an appellant is appealing, that
is not enough for meaningful review.” Commonwealth v. Dowling, 778
A.2d 683, 686 (Pa. Super. 2001) (citation omitted). “A Concise Statement
which is too vague to allow the court to identify the issues raised on appeal is
the functional equivalent of no Concise Statement at all.” Id. at 686-87.
Here, the trial court deemed the Commonwealth’s issues waived as
vague. See Trial Court Opinion, 5/28/19, at 2-3. The trial court characterized
the first issue as “generic,” and noted that “the Commonwealth fails to give
any specific reasons how the sentences ‘run afoul of the express objectives of
the Pennsylvania Sentencing Guidelines.’” Trial Court Opinion, 5/28/19, at 3.
The trial court additionally determined that the Commonwealth’s
discretionary challenges were not reviewable. As we have explained,
“[c]hallenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,
170 (Pa. Super. 2010). Prior to reaching the merits of a discretionary
sentencing issue, this Court conducts a four-part analysis to determine:
-3- J-S62021-19
(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, [see] 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, [see] 42 Pa.C.S.A. § 9781(b).
Id. (citation omitted). We determine the existence of a substantial question
on a case-by-case basis. See Commonwealth v. Feucht, 955 A.2d 377,
384 (Pa. Super. 2008). 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. Diehl, 140 A.3d 34, 44-45 (Pa. Super. 2016)
(internal citations and quotation marks omitted).
The trial court concluded that the Commonwealth failed to raise a
substantial question that the sentences appealed from are not appropriate
under the Sentencing Code. Trial Court Opinion, 5/28/19, at 3. Specifically,
the trial court stated “the Commonwealth’s [Pa.R.A.P.] 1925(b) statement
fails to set forth a plausible argument the sentences at Counts One or Two
violated a particular provision of the Sentencing Code or were contrary to the
fundamental norms underlying the sentencing scheme.” Id. at 3-4.
Notably, with respect to its first issue, the Commonwealth argued in its
concise statement that the “sentences run afoul of the spirit and express
objectives of the Pennsylvania Sentencing Guidelines.” Concise Statement,
-4- J-S62021-19
4/7/19, at unnumbered 2. However, in its Rule 2119(f) statement, the
Commonwealth stated its first issue differently, arguing instead that “the trial
court failed to consider general sentencing standards set forth in 42 Pa.C.S.A.
§ 9721(b), and failed to properly consider and apply the sentencing factors
within 42 Pa.C.S.A. § 9722 and 9725.” Commonwealth’s Brief at 5.
Under our appellate rules, an appellant may not raise issues on appeal
that were not raised before the trial court. See Pa.R.A.P. 302(a) (providing
that issues not raised in the lower court are waived and cannot be raised for
the first time on appeal). Moreover, if an appellant is directed to file a concise
statement of matters to be raised on appeal pursuant to Pa.R.A.P. 1925(b),
any issues not raised in that statement are waived. See Commonwealth v.
Lord, 719 A.2d 306, 309 (Pa. 1998).
Here, we deem as waived the Commonwealth’s argument that the trial
court failed to properly consider and apply the sentencing factors because it
was not raised in its concise statement. See Feucht, 955 A.2d at 384 (holding
that “we will only evaluate substantive claims that were relied upon in the
concise statement”). Thus, even if the Commonwealth’s first issue was not
waived at the trial court for vagueness, it is otherwise waived on appeal.
With respect to the Commonwealth’s second issue challenging the
application of mitigating factors, we observe that it failed to raise or discuss
this issue in its Rule 2119(f) statement. When an appellant has raised a
discretionary sentencing challenge, the Rule 2119(f) statement must explain
-5- J-S62021-19
where the sentence falls in relation to the sentencing guidelines, identify what
specific provision of the Sentencing Code and/or what fundamental norm was
violated, and explain how and why the sentencing court violated that
particular provision and/or norm. Commonwealth v. Goggins, 748 A.2d
721, 727 (Pa. Super. 2000). If an appellant fails to include a discretionary
sentencing issue in his Rule 2119(f) statement, and the appellee objects, then
the issue is waived and this Court may not review the claim. See
Commonwealth v. Feucht, 955 A.2d 377, 384 (Pa. Super. 2008). As
Carothers has objected to the Commonwealth’s failure to address its second
issue in its Rule 2119(f) statement, it is waived.2
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 2/3/2020
2 Carothers also argues that the Commonwealth’s second issue is waived for failure to raise it at sentencing or in a post-sentence motion. See Pa.R.Crim.P. 720. However, we need not address that argument, as we find other bases for waiver.
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