Com. v. Kinney, A.

• Court: Superior Court of Pennsylvania
• Decided: June 12, 2018
• Docket: 318 WDA 2017
• Status: Unpublished

Opinion

J-S13005-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : ANTHONY KINNEY : : Appellant : No. 318 WDA 2017

Appeal from the Judgment of Sentence January 18, 2017 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0000388-2016, CP-02-CR-0000393-2016, CP-02-CR-0000618-2016, CP-02-CR-0001535-2016, CP-02-CR-0001540-2016, CP-02-CR-0001668-2016, CP-02-CR-0002232-2016, CP-02-CR-0002233-2016, CP-02-CR-0006736-2016

BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 12, 2018

Appellant, Anthony Kinney, appeals from the judgment of sentence

entered in the Allegheny County Court of Common Pleas, following his open

guilty plea to thirteen counts of receiving stolen property, three counts of theft

by unlawful taking, two counts each of conspiracy and simple assault, and one

count each of flight to avoid apprehension, trial or punishment, resisting

arrest, fleeing or attempting to elude police, possession of drug paraphernalia,

and several summary offenses.1 We affirm.

In its opinion, the trial court fully and correctly set forth the relevant

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1 18 Pa.C.S.A. §§ 3925(a), 3921(a), 903, 2701(a), 5126(a), 5104; 75 Pa.C.S.A. § 3733(a); 35 P.S. § 780-113(a)(32), respectively. J-S13005-18

facts and procedural history of this case. Therefore, we have no reason to

restate them.

Appellant raises the following issue for our review:

DID THE TRIAL COURT ABUSE ITS DISCRETION IN SENTENCING [APPELLANT] TO MULTIPLE CONSECUTIVE SENTENCES TOTALING 7 TO 14 YEARS’ IMPRISONMENT FOR PROPERTY CRIMES WHERE THE COURT DID NOT MEANINGFULLY CONSIDER ALL RELEVANT SENTENCING CODE FACTORS; THAT THE CRIMES WERE DUE TO [APPELLANT’S] DRUG ADDICTION AND NEED FOR PROPER TREATMENT; THAT [APPELLANT] TOOK RESPONSIBILITY FOR HIS ACTIONS BY PLEADING GUILTY, AND EXPRESSED SINCERE REMORSE; THAT [APPELLANT] IS HIGHLY MOTIVATED TO STAY CLEAN DUE TO THE BIRTH OF HIS DAUGHTER; AND THE COURT DID NOT GIVE ANY REASONS FOR IMPOSING CONSECUTIVE RATHER THAN CONCURRENT TERMS IN FASHIONING A SENTENCE?

(Appellant’s Brief at 15).

Appellant argues the court imposed a manifestly excessive and

unreasonable sentence and failed to consider the relevant criteria contained

in the Sentencing Code, which resulted in a sentence that is inconsistent with

the protection of the public, the gravity of the offense as it relates to the

impact on the community, and Appellant’s rehabilitative needs. Specifically,

Appellant claims the court did not consider his background or his history of

drug addiction. Appellant asserts the court did not take into account

Appellant’s willingness to take responsibility for his actions and his expression

of remorse at sentencing. Appellant avers his cumulative sentence is

excessive, and the court failed to provide adequate reasons for the imposition

of consecutive sentences. Appellant concludes this Court should vacate and

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remand this matter to the trial court for a new sentencing hearing. As

presented, Appellant challenges the discretionary aspects of his sentence. 2

See Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595 (Pa.Super. 2010)

(explaining challenge to imposition of consecutive sentences implicates

discretionary aspects of sentencing); Commonwealth v. Lutes, 793 A.2d

949 (Pa.Super. 2002) (stating claim that sentence is manifestly excessive

challenges discretionary aspects of sentencing); Commonwealth v. Cruz-

Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676

A.2d 1195 (1996) (stating allegation court ignored mitigating factors

challenges discretionary aspects of sentencing).

Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910

(Pa.Super. 2000). Prior to reaching the merits of a discretionary sentencing

issue:

[W]e 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 ____________________________________________

2 “[W]hile a guilty plea which includes sentence negotiation ordinarily precludes a defendant from contesting the validity of his...sentence other than to argue that the sentence is illegal or that the sentencing court did not have jurisdiction, open plea agreements are an exception in which a defendant will not be precluded from appealing the discretionary aspects of the sentence.” Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa.Super. 2005) (emphasis in original). “An ‘open’ plea agreement is one in which there is no negotiated sentence.” Id. at 363 n.1. Here, Appellant’s guilty plea included no negotiated sentence.

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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).

When appealing the discretionary aspects of a sentence, an appellant

must invoke this Court’s jurisdiction by including in his brief a separate concise

statement demonstrating a substantial question as to the appropriateness of

the sentence under the Sentencing Code. Commonwealth v. Mouzon, 571

Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f). “The requirement that an

appellant separately set forth the reasons relied upon for allowance of appeal

furthers the purpose evident in the Sentencing Code as a whole of limiting any

challenges to the trial court’s evaluation of the multitude of factors impinging

on the sentencing decision to exceptional cases.” Commonwealth v.

Phillips, 946 A.2d 103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264,

129 S.Ct. 2450, 174 L.Ed.2d 240 (2009) (quoting Commonwealth v.

Williams, 562 A.2d 1385, 1387 (Pa.Super. 1989) (en banc)) (emphasis in

original) (internal quotation marks omitted).

“The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830

A.2d 1013, 1018 (Pa.Super. 2003). 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

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Code; or (2) contrary to the fundamental norms which underlie the sentencing

process.” Sierra, supra at 912-13. An allegation that the sentencing court

failed to consider certain mitigating factors, absent more, does not raise a

substantial question for our review. Commonwealth v. Rhoades, 8 A.3d

912, 918-19 (Pa.Super. 2010), appeal denied, 611 Pa. 651, 25 A.3d 328

(2011), cert. denied, 565 U.S. 1263, 132 S.Ct. 1746, 182 L.Ed.2d 536 (2012).

“Generally, Pennsylvania law ‘affords the sentencing court discretion to

impose its sentence concurrently or consecutively to other sentences being

imposed at the same time or to sentences already imposed. Any challenge to

the exercise of this discretion ordinarily does not raise a substantial question.’”

Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super. 2011) (quoting

Commonwealth v. Pass, 914 A.2d 442, 446-47 (Pa.Super. 2006)). A basic

“allegation that a sentencing court failed to consider or did not adequately

consider certain factors does not raise a substantial question that the sentence

was inappropriate.” Cruz-Centeno, supra at 545. See also

Commonwealth v. Foust, 180 A.3d 416, 434 (Pa.Super. 2018) (regarding

mere challenge to imposition of concurrent versus consecutive sentences,

“extensive case law in this jurisdiction holds that defendants convicted of

multiple offenses are not entitled to a ‘volume discount’ on their aggregate

sentence.”).

Our standard of review concerning the discretionary aspects of

sentencing is as follows:

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Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal

denied, 586 Pa. 723, 890 A.2d 1057 (2005). Where the sentencing court had

the benefit of a presentence investigative report (“PSI”), we can assume the

sentencing court “was aware of relevant information regarding the defendant’s

character and weighed those considerations along with mitigating statutory

factors.” Commonwealth v. Devers, 519 Pa. 88, 101-02, 546 A.2d 12, 18

(1988). Further, where a sentence is within the standard range of the

guidelines, Pennsylvania law generally views the sentence as appropriate

under the Sentencing Code. See Cruz-Centeno, supra (stating combination

of PSI and standard range sentence, absent more, cannot be considered

excessive or unreasonable).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Randal B.

Todd, we conclude Appellant’s issue merits no relief. The trial court’s opinion

comprehensively discusses and properly disposes of the question presented.

(See Trial Court Opinion, filed October 30, 2017, at 5-6) (finding: court

considered PSI and statutory factors under 42 Pa.C.S.A. § 9721(b) when

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imposing sentences in nine separate cases; Appellant committed these current

offenses against multiple victims while he was on parole; Appellant has

become serial offender; current crimes involved violence, including assault,

flight to avoid apprehension, resisting arrest, and fleeing and eluding; court

declined to impose maximum sentence, as victims had requested, because

Appellant apologized and accepted responsibility for his actions; court

considered Appellant’s entire background, along with gravity and repeated

nature of his past and current offenses, and their impact on victims and

community as whole, given repeated nature of his crimes, Appellant’s

acceptance of responsibility, and Appellant’s potential for addiction treatment;

court appropriately sentenced Appellant).3 Appellant has given this Court no

sound reasons to disturb the sentence. Accordingly, we affirm on the basis of

the trial court opinion.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/12/2018

3 The record shows the court imposed standard range or probation sentences.

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