J-S43003-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : BHARGAVE CHOWDARY PALETI : : Appellant : No. 1784 MDA 2018
Appeal from the Judgment of Sentence Entered September 4, 2018 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0001383-2017
BEFORE: GANTMAN, P.J.E., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY GANTMAN, P.J.E.: FILED OCTOBER 23, 2019
Appellant, Bhargave Chowdary Paleti, appeals from the judgment of
sentence entered in the Lackawanna County Court of Common Pleas, following
his negotiated guilty plea to two counts of disorderly conduct.1 We affirm.
In its opinion, the trial court sets forth most of the relevant facts and
procedural history of this case. Therefore, we have no need to restate them.
Procedurally, we add the court ordered Appellant on October 31, 2018, to file
a concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b).
Appellant complied on November 26, 2018.2
____________________________________________
1 18 Pa.C.S.A. §§ 5503(a)(1) and (a)(4).
2Appellant filed his Rule 1925(b) statement out of time. Nevertheless, this Court may address the merits of a criminal appeal, where a defendant files an
____________________________________ * Former Justice specially assigned to the Superior Court. J-S43003-19
Appellant raises one issue for our review:
DID THE TRIAL COURT ERR AND ABUSE ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE IN THE AGGRAVATED RANGE OF THE PENNSYLVANIA SENTENCING GUIDELINES, BY FAILING TO CONSIDER MITIGATING FACTORS PRESENT IN THE RECORD AND, THEREFORE, FAILED TO CONSIDER THE RELEVANT SENTENCING CRITERIA OF THE PENNSYLVANIA SENTENCING CODE, INCLUDING THE PERSONAL CHARACTERISTICS OF…APPELLANT, HIS REHABILITATIVE NEEDS AND THE NEED FOR PROTECTION OF THE PUBLIC?
(Appellant’s Brief at 5).
Appellant argues the sentencing court failed to consider several
mitigating factors, including: his lack of a prior criminal record; his age; his
compliance with conditions of house arrest during this case; his education; his
employment as a physician; and his acceptance of responsibility for the
conduct underlying the convictions. Appellant concludes the court
unreasonably and/or incorrectly applied the Sentencing Guidelines when it
imposed an aggravated range sentence. As presented, Appellant challenges
the discretionary aspects of his sentence. See 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
untimely Rule 1925(b) statement, if the trial court had adequate opportunity and chose to prepare an opinion addressing the issue(s) raised on appeal. Here, the trial court issued an opinion addressing Appellant’s complaints. Therefore, we decline to consider Appellant’s issues waived. See Commonwealth v. Burton, 973 A.2d 428, 433 (Pa.Super. 2008) (en banc) (allowing for immediate review under these circumstances).
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challenges discretionary aspects of sentencing).3
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 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). See
also Pa.R.A.P. 302(a) (explaining general rule that issues not raised before
trial court are waived and cannot be raised for first time on appeal).
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830
3 “[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). “An ‘open’ plea agreement is one in which there is no negotiated sentence.” Id. at 363 n.1. Here, Appellant’s plea was “open” as to his sentence, so he can challenge the discretionary aspects of his sentence.
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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
Code; or (2) contrary to the fundamental norms which underlie the sentencing
process.” Sierra, supra at 913 (quoting Commonwealth v. Brown, 741
A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567 Pa. 755, 790
A.2d 1013 (2001)). A substantial question exists where an appellant alleges
the sentencing court erred by imposing an aggravated range sentence without
consideration of mitigating circumstances. Commonwealth v. Felmlee, 828
A.2d 1105, 1107 (Pa.Super. 2003) (en banc).
Our standard of review concerning the discretionary aspects of
sentencing is as follows:
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). Pursuant to Section 9721(b),
“the court shall follow the general principle that the sentence imposed should
call for confinement that is consistent with the protection of the public, the
gravity of the offense as it relates to the impact on the life of the victim and
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on the community, and the rehabilitative needs of the defendant.” 42
Pa.C.S.A. § 9721(b). The record as a whole must reflect the sentencing
court’s consideration of the facts of the case and the defendant’s character.
Commonwealth v.
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J-S43003-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : BHARGAVE CHOWDARY PALETI : : Appellant : No. 1784 MDA 2018
Appeal from the Judgment of Sentence Entered September 4, 2018 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0001383-2017
BEFORE: GANTMAN, P.J.E., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY GANTMAN, P.J.E.: FILED OCTOBER 23, 2019
Appellant, Bhargave Chowdary Paleti, appeals from the judgment of
sentence entered in the Lackawanna County Court of Common Pleas, following
his negotiated guilty plea to two counts of disorderly conduct.1 We affirm.
In its opinion, the trial court sets forth most of the relevant facts and
procedural history of this case. Therefore, we have no need to restate them.
Procedurally, we add the court ordered Appellant on October 31, 2018, to file
a concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b).
Appellant complied on November 26, 2018.2
____________________________________________
1 18 Pa.C.S.A. §§ 5503(a)(1) and (a)(4).
2Appellant filed his Rule 1925(b) statement out of time. Nevertheless, this Court may address the merits of a criminal appeal, where a defendant files an
____________________________________ * Former Justice specially assigned to the Superior Court. J-S43003-19
Appellant raises one issue for our review:
DID THE TRIAL COURT ERR AND ABUSE ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE IN THE AGGRAVATED RANGE OF THE PENNSYLVANIA SENTENCING GUIDELINES, BY FAILING TO CONSIDER MITIGATING FACTORS PRESENT IN THE RECORD AND, THEREFORE, FAILED TO CONSIDER THE RELEVANT SENTENCING CRITERIA OF THE PENNSYLVANIA SENTENCING CODE, INCLUDING THE PERSONAL CHARACTERISTICS OF…APPELLANT, HIS REHABILITATIVE NEEDS AND THE NEED FOR PROTECTION OF THE PUBLIC?
(Appellant’s Brief at 5).
Appellant argues the sentencing court failed to consider several
mitigating factors, including: his lack of a prior criminal record; his age; his
compliance with conditions of house arrest during this case; his education; his
employment as a physician; and his acceptance of responsibility for the
conduct underlying the convictions. Appellant concludes the court
unreasonably and/or incorrectly applied the Sentencing Guidelines when it
imposed an aggravated range sentence. As presented, Appellant challenges
the discretionary aspects of his sentence. See 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
untimely Rule 1925(b) statement, if the trial court had adequate opportunity and chose to prepare an opinion addressing the issue(s) raised on appeal. Here, the trial court issued an opinion addressing Appellant’s complaints. Therefore, we decline to consider Appellant’s issues waived. See Commonwealth v. Burton, 973 A.2d 428, 433 (Pa.Super. 2008) (en banc) (allowing for immediate review under these circumstances).
-2- J-S43003-19
challenges discretionary aspects of sentencing).3
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 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). See
also Pa.R.A.P. 302(a) (explaining general rule that issues not raised before
trial court are waived and cannot be raised for first time on appeal).
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830
3 “[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). “An ‘open’ plea agreement is one in which there is no negotiated sentence.” Id. at 363 n.1. Here, Appellant’s plea was “open” as to his sentence, so he can challenge the discretionary aspects of his sentence.
-3- J-S43003-19
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
Code; or (2) contrary to the fundamental norms which underlie the sentencing
process.” Sierra, supra at 913 (quoting Commonwealth v. Brown, 741
A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567 Pa. 755, 790
A.2d 1013 (2001)). A substantial question exists where an appellant alleges
the sentencing court erred by imposing an aggravated range sentence without
consideration of mitigating circumstances. Commonwealth v. Felmlee, 828
A.2d 1105, 1107 (Pa.Super. 2003) (en banc).
Our standard of review concerning the discretionary aspects of
sentencing is as follows:
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). Pursuant to Section 9721(b),
“the court shall follow the general principle that the sentence imposed should
call for confinement that is consistent with the protection of the public, the
gravity of the offense as it relates to the impact on the life of the victim and
-4- J-S43003-19
on the community, and the rehabilitative needs of the defendant.” 42
Pa.C.S.A. § 9721(b). The record as a whole must reflect the sentencing
court’s consideration of the facts of the case and the defendant’s character.
Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.Super. 2010), appeal
denied, 608 Pa. 661, 13 A.3d 475 (2010). “In particular, the court should
refer to the defendant’s prior criminal record, his age, personal characteristics
and his potential for rehabilitation.” Commonwealth v. Griffin, 804 A.2d 1,
10 (Pa.Super. 2002), appeal denied, 582 Pa. 671, 868 A.2d 1198 (2005), cert
denied, 545 U.S. 1148, 125 S.Ct. 2984, 162 L.Ed.2d 902 (2005).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Michael J.
Barrasse, we conclude Appellant’s issue merits no relief. The trial court
opinion comprehensively discusses and properly disposes of the question
presented. (See Trial Court Opinion, filed January 30, 2019, at 11-15)
(finding: in his post-sentence motion, Appellant merely listed mitigating
factors and requested credit for house arrest time and reduction in sentence;
Appellant did not challenge unreasonableness or excessiveness of sentence or
propriety of aggravated range sentence; thus, Appellant failed to preserve
discretionary aspects claim; moreover, even if Appellant had preserved claim,
he is not entitled to relief; court considered Sentencing Guidelines and all
Section 9721(b) sentencing factors; court acquired thorough familiarity with
Appellant, severity of underlying facts, Appellant’s character, escalating
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nature of his actions, and dynamic of Appellant’s and Victim’s marriage; court
considered Victim’s impact statement and Appellant’s voluntary withdrawal
from Lackawanna County Domestic Violence Court Program; record is silent
on whether Appellant sought or completed any further rehabilitation/mental
health counseling; Appellant demonstrated he did not appreciate seriousness
of his conduct; if placed immediately on probation Appellant would present
greater risk of further offenses against Victim). The record supports the trial
court’s rationale. See Hyland, supra. Accordingly, we affirm on the basis of
the trial court opinion.
Judgment of sentence affirmed.
Judge Dubow joins this memorandum.
President Judge Emeritus Stevens concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/23/2019
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