Com. v. Hayes, W.

• Court: Superior Court of Pennsylvania
• Decided: March 11, 2022
• Docket: 1899 EDA 2021
• Status: Unpublished

Opinion

J-S04009-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : WILLIAM HAYES : : Appellant : No. 1899 EDA 2021

Appeal from the Judgment of Sentence Entered June 10, 2020 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0003647-2019

BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*

CONCURRING MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 11, 2022

While I join the Majority’s decision to affirm the judgment of sentence

and to grant counsel’s petition to withdraw, I respectfully do not join the

decision in its entirety.

I would find that Appellant did not raise a substantial question solely on

the basis of his allegation that the trial court failed to consider mitigating

circumstances. This Court has specifically found that an appellant fails to raise

a substantial question when his challenge to the excessiveness of his sentence

is premised on his argument that the trial court failed to consider mitigating

circumstances. Commonwealth v. Radecki, 180 A.3d 441, 469 (Pa.Super.

2018). “[T]his Court has held on numerous occasions that a claim of

inadequate consideration of mitigating factors does not raise a substantial

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* Former Justice specially assigned to the Superior Court. J-S04009-22

question for our review.” Id. (quoting Commonwealth v. Disalvo, 70 A.3d

900, 903 (Pa.Super. 2013) and Commonwealth v. Eline, 940 A.2d 421, 435

(Pa.Super. 2007)).

However, this Court has held that a claim that the trial court “erred by

imposing an aggravated range sentence without consideration of mitigating

circumstances raises a substantial question.” Commonwealth v. Felmlee,

828 A.2d 1105, 1107 (Pa.Super. 2003) (en banc) (emphasis added).

In this case, Appellant received a sentence that exceeded the

aggravated range of the sentencing guidelines. As a result, as Appellant

argued that the trial court erred in imposing his aggravated range sentence

without considering mitigating factors, I would find that Appellant has raised

a substantial question for our review on different grounds than espoused by

the Majority.

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