Com. v. Ross, J.

• Court: Superior Court of Pennsylvania
• Decided: August 2, 2019
• Docket: 514 WDA 2018
• Status: Unpublished

Opinion

J-S09010-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSHUA DANIEL ROSS : : Appellant : No. 514 WDA 2018

Appeal from the Judgment of Sentence March 16, 2018 In the Court of Common Pleas of Bedford County Criminal Division at No(s): CP-05-CR-0000638-2016

BEFORE: PANELLA, P.J., LAZARUS, J., and STRASSBURGER, J.

MEMORANDUM BY PANELLA, P.J.: FILED AUGUST 02, 2019

Joshua Daniel Ross appeals from the judgment of sentence entered in

the Bedford County Court of Common Pleas following his nolo contendere1

plea to indecent assault of a person less than thirteen years old. Ross

challenges the discretionary aspects of his sentence. We affirm.

After entering his nolo contendere plea, the court sentenced Ross to

nine months to five years’ imprisonment in a state prison on March 16, 2018.

Ross filed a post-sentence petition for reconsideration of sentence. The trial

court denied the motion. This timely appeal follows.

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 Retired Senior Judge assigned to the Superior Court.

1There is some dispute in the sentencing hearing transcript whether Ross pled guilty or pled no contest. Our review of the criminal dockets indicates a nolo contendere plea. J-S09010-19

On appeal, Ross argues the trial court abused its discretion by

sentencing him to a state correctional institution on the grounds that he would

receive better treatment than at the county level. Ross concedes this claim

challenges the discretionary aspects of his sentence. “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).

An appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by satisfying a four-part test:

[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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation

omitted; brackets in original).

Here, Ross preserved his issue through a timely motion to modify

sentence, and filed a timely appeal. Counsel has included the required Rule

2119(f) statement. We therefore review the Rule 2119(f) statement to

determine if Ross has raised a substantial question.

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

whether a substantial question exists. See Commonwealth v. Tirado, 870

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A.2d 362, 365 (Pa. Super. 2005). “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. (citation

and emphasis omitted); see also Pa.R.A.P. 2119(f).

Ross “must show that there is a substantial question that the sentence

imposed is not appropriate under the Sentencing Code.” McAfee, 849 A.2d at

274 (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. “Additionally, we cannot look beyond the statement of questions

presented and the prefatory 2119(f) statement to determine whether a

substantial question exists.” Commonwealth v. Provenzano, 50 A.3d 148,

154 (Pa. Super. 2012).

Instantly, Ross’s Rule 2119(f) statement, as well as his statement of

questions presented, provides this Court with nothing more than a bald

allegation that the trial court abused its discretion in imposing his sentence.

See Appellant’s Brief, at 5 and 10. Ross makes no argument as to why his

challenge presents a substantial question for our review. Nor does he cite any

authority for the proposition that his claim raises a substantial question.

Instead, Ross claims that the trial court erred in sentencing him to a maximum

of five years based on its belief that he could only receive the counseling he

needs at a state correction institute. See id. He claims this was error since

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“testimony/reports were provided by a certified sex offender therapist who

had counseled [Ross] for the last year and was willing to further counsel

[him].” Id., at 10.

It is only in his “ARGUMENT” section of his brief where Ross explains his

position is that his maximum sentence is too high given his age and prior

record score, and that he should have been given probation instead, since he

believes he was already receiving adequate treatment.2 “[W]e,” however,

“cannot look beyond the statement of questions presented and the prefatory

[Rule] 2119(f) statement to determine whether a substantial question exists.”

Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012)

(citation omitted); see also Commonwealth v. Tuladziecki, 522 A.2d 17,

19 (Pa. 1987) (“Superior Court may not, however, be permitted to rely on its

assessment of the argument on the merits of the issue to justify post hoc a

determination that a substantial question exists.”).

Because Ross fails to assert, let alone cite, to any authority that

demonstrates the manner in which “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

2 Arguably, even the contention detailed in the argument section of Ross’s Brief does not raise a substantial question. See Commonwealth v. Griffin, 65 A.3d 932, 936 (Pa. Super. 2013) (finding claim that court imposed an excessive sentence by failing to consider rehabilitative needs of defendant did not raise a substantial question).

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A.2d at 365, he has failed to raise a substantial question for our review. For

this reason, we do not reach the merits of Ross’s discretionary claim.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/02/2019

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