Com. v. Lowden, R.

• Court: Superior Court of Pennsylvania
• Decided: May 4, 2017
• Docket: Com. v. Lowden, R. No. 830 MDA 2016
• Status: Unpublished

Opinion

J-S91018-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

v.

ROBERT CHARLES LOWDEN

Appellant No. 830 MDA 2016

Appeal from the Judgment of Sentence April 11, 2016 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0002232-2015

BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.: FILED MAY 04, 2017

Appellant, Robert Charles Lowden, appeals from the judgment of

sentence entered April 11, 2016.

On February 17, 2016, Appellant entered an open guilty plea to

persons not to possess a firearm, aggravated assault, receiving stolen

property, carrying a firearm without a license, and possession of a controlled

substance.1 In the underlying incident, Appellant held a gun to a man’s

head. See Notes of Testimony (N. T.), Trial, 2/17/16, at 3. The gun was

stolen, and Appellant, a felon, did not have a license to carry. Id. at 4-5. In

Appellant’s possession was ten grams of synthetic marijuana. Id. at 5.

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1 18 Pa.C.S. §§ 6105, 2702(a), 3925, 6106, and 35 P.S. §780-113(a)(16), respectively.

* Former Justice specially assigned to the Superior Court. J-S91018-16

Appellant was sentenced to nine to twenty years of incarceration. In

fashioning this sentence, the court relied on a pre-sentence investigation

report, which detailed Appellant’s lengthy criminal history as well as his

mental health issues and troubled childhood. See Notes of Testimony (N. T.

Sentencing), 4/11/16, at 11-14. Specifically, Appellant had six prior juvenile

adjudications and five prior adult convictions, and he had received various

mental health diagnoses, including bipolar disorder. See Pre-Sentence

Investigation at 4-12.

Appellant timely filed a post-sentence motion, which was denied.

Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal. The trial court issued a

responsive opinion.

On appeal, Appellant raises a single issue for our review:

1. Was the trial court’s sentence of 9 to 20 years of incarceration so manifestly excessive as to constitute an abuse of the court’s discretion and clearly unreasonable under the circumstances and was not consistent with the protection of the public, the gravity of the offenses, and the rehabilitative needs of [Appellant]?

Appellant’s Brief at 7.

Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right. Commonwealth v. Griffin, 65 A.3d 932,

935 (Pa. Super. 2013). To invoke this Court’s jurisdiction, an Appellant

must satisfy a four-part test: 1) whether the appeal is timely; 2) whether

Appellant preserved his issue; 3) whether Appellant’s brief contains a

concise statement of the reasons relied upon for allowance of appeal

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pursuant to Pa.R.A.P. 2119(f); and 4) whether that statement raises a

substantial question that the sentence is inappropriate under the Sentencing

Code. See Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super.

2013); see also Pa.R.A.P. 2119(f).

Appellant timely filed a notice of appeal, preserved his claim in a post-

sentence motion, and included in his brief an appropriate Pa.R.A.P. 2119(f)

statement. We must now determine whether he has raised a substantial

question that the sentence is inappropriate under the sentencing code, and,

if so, review the merits.

The determination of a substantial question must be evaluated on a

case-by-case basis. Griffin, 65 A.3d at 935. A substantial question exists

only where the Appellant advances a colorable argument that the sentencing

judge’s actions were either inconsistent with a specific provision of the

Sentencing Code, or contrary to the fundamental norms which underlie the

sentencing process. Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.

Super. 2000). A claim that a sentence is manifestly excessive many raise a

substantial question if Appellant’s Pa.R.A.P. 2119(f) statement sufficiently

articulates the manner in which the sentence was inconsistent with the Code

or contrary to its norms. Commonwealth v. Mouzon, 812 A.2d 617, 627-

28 (Pa. 2002).

Appellant’s Pa.R.A.P. 2119(f) statement claims that the sentencing

court failed to adequately consider Appellant’s mental health issues, low

mental acuity, and past physical abuse. See Appellant’s Brief at 13.

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Appellant argues that the sentence imposed was an abuse of discretion and

manifestly excessive. Id. at 13. Appellant contends that the court’s

standard range sentence was not consistent with the protection of the public

or Appellant’s rehabilitative needs, but instead, focused solely on the gravity

of the offense, contrary to the requirements of 42 Pa.C.S. § 9721. Id. at

13.

A defendant’s contention that the trial court did not adequately

consider mitigating circumstances, without more, does not raise a

substantial question. See Commonwealth v. Ladamus, 896 A.2d 592,

596 (Pa. Super. 2006). Here, Appellant acknowledges that his sentence was

within the standard guideline range. See Appellant’s Brief at 12. Further,

the record reflects that the court had the benefit of a pre-sentence

investigation report, acknowledged Appellant’s history of mental illness and

abuse, and noted the need to protect the community from Appellant. See

N. T., Sentencing, at 11-12; see also Commonwealth v. Fullin, 892 A.2d

843, 849–50 (Pa. Super. 2006) (noting that where the sentencing judge has

the benefit of a pre-sentence report it is presumed he was aware of and

weighted relevant mitigating statutory factors).

Accordingly, we conclude that Appellant has failed to raise a

substantial question that his sentence was excessive. Consequently, a

review of the merits of his discretionary challenge is unwarranted.

Judgment of sentence affirmed.

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P.J.E Ford Elliott joins.

P.J.E. Stevens files a concurring memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/4/2017

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