Com. v. Hedrick, R.

• Court: Superior Court of Pennsylvania
• Decided: September 17, 2014
• Docket: 345 WDA 2014
• Status: Unpublished

Opinion

J-S53032-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

ROBERT WILLIAM HEDRICK,

Appellant No. 345 WDA 2014

Appeal from the Judgment of Sentence January 31, 2014 in the Court of Common Pleas of Crawford County Criminal Division at No.: CP-20-CR-0000018-2011

BEFORE: DONOHUE, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 17, 2014

Appellant, Robert William Hedrick, appeals from the judgment of

sentence entered following the revocation of his probation. For the reasons

discussed below, we affirm.

On May 9, 2011, Appellant entered an open guilty plea to incest and

corruption of minors.1 (See Written Guilty Plea, 5/09/11, at unnumbered

page 1). On August 9, 2011, the trial court sentenced Appellant to a

standard-range sentence of not less than twelve months less one day nor

more than twenty-four months less one day of incarceration, to be followed

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* Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S.A. §§ 4302 and 6301, respectively. J-S53032-14

by three years of probation. (See Notification of Sentence, 8/09/11, at

unnumbered page 1).

Following his release from prison in Pennsylvania, Appellant moved to

Florida and the Commonwealth transferred supervision of his probation to

that State. (See N.T. Gagnon II Hearing, 11/25/13, at 6). At the Gagnon

II2 hearing, Probation Officers Jeter Cornelius and Jennifer Soffe testified

that, during a scheduled search of Appellant’s residence on July 22, 2013,

they discovered photographic evidence demonstrating that Appellant was in

contact with children and used the internet to access pornographic websites

in violation of the conditions of his probation. (See id. at 7-11, 35-36). The

revocation court revoked Appellant’s probation and sentenced him to a term

of incarceration of not less than two nor more than five years, with one-

hundred and seventy-two days of presentence incarceration credit. (See

N.T. Gagnon II Continued Hearing, 1/31/14, at 18; Order, 1/31/14, at

Appellant filed the instant, timely appeal. On February 27, 2014, the

revocation court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). See Pa.R.A.P.

1925(b). Appellant filed his concise statement on March 14, 2014; the

2 See Gagnon v. Scarpelli, 411 U.S. 778 (1973).

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revocation court issued an opinion on March 19, 2014. See Pa.R.A.P.

1925(a).

Appellant raises the following question for our review:

Whether an allowance of appeal should be granted to challenge the discretionary aspects of a sentence in that, the lower court, under the circumstances and facts of the particular case and without proper support appearing on the record, abused its discretion and failed to consider the individual needs of the Appellant by sentencing the Appellant to the aforesaid sentence?

(Appellant’s Brief, at 7).

On appeal, Appellant challenges the discretionary aspects of his

sentence.3 In a recent decision, Commonwealth v. Cartrette, 83 A.3d

1030 (Pa. Super. 2013) (en banc), this Court held that “this Court’s scope of

review in an appeal from a revocation sentencing includes discretionary

sentencing challenges.” Cartrette, supra at 1034. Thus, Appellant’s claim

is properly before us.

3 We note that the Commonwealth argues that Appellant waived his issue on appeal by not filing a post-sentence motion for reconsideration of sentence. (See the Commonwealth’s Brief, at 6). However, the record reflects that Appellant preserved his discretionary aspects of sentence claim by objecting to the sentence at sentencing. (See N.T. Gagnon II Continued Hearing, 1/31/14, at 20). Thus, we decline to find waiver on this basis. See Commonwealth v. McAfee, infra at 274 (“Issues challenging the discretionary aspects of sentence must be raised in a post-sentence motion or by presenting the claim to the trial court during the sentencing proceedings.”) (citation omitted).

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The right to appeal the discretionary aspects of a sentence is not

absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.

2004), appeal denied, 860 A.2d 122 (Pa. 2004). When an appellant

challenges the discretionary aspects of the sentence imposed, he must

present “a substantial question as to the appropriateness of the sentence[.]”

Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003)

(citations omitted). An appellant must, pursuant to Pennsylvania Rule of

Appellate Procedure 2119(f), articulate “a colorable argument that the

sentence violates a particular provision of the Sentencing Code or is contrary

to the fundamental norms underlying the sentencing scheme.”

Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super. 2005)

(en banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation omitted). If

an appellant’s Rule 2119(f) statement meets these prerequisites, we

determine whether a substantial question exists. See Commonwealth v.

Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en banc), appeal denied,

759 A.2d 920 (Pa. 2000). “Our inquiry must focus on the reasons for which

the appeal is sought, in contrast to the facts underlying the appeal, which

are necessary only to decide the appeal on the merits.” Id. (emphases in

original).

Appellant’s brief in the present case does not contain a Rule 2119(f)

statement. (See Appellant’s Brief, at 8-12). “A failure to include the Rule

2119(f) statement does not automatically waive an appellant’s argument;

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however, we are precluded from reaching the merits of the claim when the

Commonwealth lodges an objection to the omission of the statement.”

Commonwealth v. Roser, 914 A.2d 447, 457 (Pa. Super. 2006), appeal

denied, 927 A.2d 624 (Pa. 2007) (citation omitted). Because the

Commonwealth has objected to the absence of the Rule 2119(f) statement,

(see the Commonwealth’s Brief, at 6), we cannot reach the merits of

Appellant’s claim. Accordingly, Appellant’s issue is waived. See Pa.R.A.P.

Rule 2119(f); Roser, supra at 457.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/17/2014

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