Com. v. Lazear, J.

• Court: Superior Court of Pennsylvania
• Decided: May 5, 2017
• Docket: Com. v. Lazear, J. No. 134 WDA 2016
• Status: Unpublished

Opinion

J-S24005-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JOHN QUINTIN LAZEAR

Appellant No. 134 WDA 2016

Appeal from the Judgment of Sentence December 23, 2015 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0014607-2008

BEFORE: PANELLA, J., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, J. FILED MAY 5, 2017

Appellant, John Quintin Lazear, appeals from the judgment of sentence

entered in the Allegheny County Court of Common Pleas, following

revocation of his probation. Appellant argues this Court should vacate his

sentence due to the revocation court’s abuse of discretion in fashioning it.

For the following reasons, no relief is due.

The relevant facts and procedural history of this case are as follows.

On May 17, 2010, following a bench trial, the court convicted Appellant of

carrying a firearm without a license, persons not to possess firearms, theft,

and receiving stolen property.1 The court sentenced Appellant at that time to ____________________________________________

* Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S.A. §§ 6106(a)(1), 6105(a)(1), 3921(a), and 3925(a), respectively. J-S24005-17

2 to 4 years’ incarceration and to 6 years of probation. While Appellant was

still serving his probationary term, he was convicted of driving under the

influence (“DUI”).

Owing to his new DUI conviction, Appellant was required to attend a

probation violation hearing for his underlying charges. On December 23,

2015, the revocation court determined that Appellant had violated his

probation. The court resentenced Appellant to a term of 2½ to 5 years’

incarceration. Appellant timely filed a post-sentence motion to reconsider,

which the court denied. Appellant then filed a timely notice of appeal and

complied with Rule 1925(b).

Appellant raises a single question for our review:

WAS THE SENTENCE OF 30 TO 60 MONTHS OF INCARCERATION MANIFESTLY EXCESSIVE AND AN ABUSE OF DISCRETION WHERE THE COURT DID NOT CONSIDER THE SUFFICIENCY OF SANCTIONS ALREADY IMPOSED AND THE AVAILABILITY OF COMMUNITY-BASED RESOURCES TO ADDRESS [APPELLANT’S] SERIOUS REHABILITATIVE NEEDS?

Appellant’s Brief, at 4.

“A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted). When challenging the discretionary aspects

of the sentence imposed, an appellant must present a substantial question

as to the inappropriateness of the sentence. See Commonwealth v.

Tirado, 870 A.2d 362, 365 (Pa. Super. 2005).

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“Two requirements must be met before we will review this challenge

on its merits.” McAfee, 849 A.2d at 274. “First, an appellant must set forth

in his brief a concise statement of the reasons relied upon for allowance of

appeal with respect to the discretionary aspects of a sentence.” Id. (citation

omitted). “Second, the appellant must show that there is a substantial

question that the sentence imposed is not appropriate under the Sentencing

Code.” Id. (citation omitted). That is, “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.” Tirado,

870 A.2d at 365 (citation omitted).

We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists. See id. See also Commonwealth v.

Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012). “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.” Tirado, 870 A.2d at 365 (citation omitted).

Here, Appellant’s brief contains the required Rule 2119(f) concise

statement. Additionally, he preserved his discretionary aspects of sentence

argument in a post-sentence motion. Thus, Appellant is in technical

compliance with the requirements for challenging the discretionary aspects

of his sentence.

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In his Rule 2119(f) statement, Appellant first baldly asserts that his

sentence is excessive. See Appellant’s Brief, at 10. That does not raise a

substantial question for our review. See Commonwealth v. Christine, 78

A.3d 1, 10 (Pa. Super. 2013) (“[A] generic claim that a sentence is

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

then claims that the trial court “failed to consider” his “rehabilitative needs

and the community-based resources available” for treating those needs

when it fashioned Appellant’s sentence. Appellant’s Brief, at 10. This raises a

substantial question for our review. See Commonwealth v. Buterbaugh,

91 A.3d 1247, 1266 (Pa. Super. 2014) (en banc) (“[A]rguments that the

sentencing court failed to consider the factors proffered in 42 Pa.C.S. § 9721

does present a substantial question whereas a statement that the court

failed to consider facts of record, though necessarily encompassing the

factors of § 9721, has been rejected.”)

A review of the sentencing transcript, however, flatly refutes his claim.

The transcript reveals the court extensively discussed the possibility of State

Intermediate Punishment with Appellant, who declined to sign a consent

form to make himself eligible for the treatment program. See N.T.

Revocation, 12/23/15, at 2-11. The court then found defense counsel’s

request for leniency so that Appellant could obtain treatment for his drug

problem to be unavailing, given Appellant’s express rejection of the

treatment program option. See id., at 15. The court also discussed on the

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record the impact of Appellant’s criminality on the community, and his

resistance to efforts to curb his drug problem. See id., at 18.

The court comprehensively addressed Appellant’s rehabilitative needs,

despite Appellant’s protestations to the contrary. Consequently, Appellant is

due no relief on his sole claim for our review, and we affirm the revocation

court’s decision.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/5/2017

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