Com. v. Wright, K.

• Court: Superior Court of Pennsylvania
• Decided: March 27, 2018
• Docket: 776 WDA 2017
• Status: Unpublished

Opinion

J-S78027-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KEDAR WRIGHT : : Appellant : No. 776 WDA 2017

Appeal from the Judgment of Sentence February 29, 2016 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0003085-2014

BEFORE: OLSON, J., DUBOW, J., and STRASSBURGER*, J.

MEMORANDUM BY DUBOW, J.: FILED MARCH 27, 2018

Appellant, Kedar Wright, appeals from the February 29, 2016

Judgment of Sentence following his conviction of 40 counts of Child

Pornography and one count of Possession of Instruments of a Crime

(“PIC”).1 On appeal, Appellant challenges the discretionary aspects of his

sentence. We affirm.

On November 25, 2015, the court convicted Appellant of the

aforementioned crimes following a bench trial. On February 29, 2016, the

court sentenced Appellant as follows:

Cts. 1, 2, and 3: 1-5 years[’ incarceration] at each count, imposed consecutively[.]

Ct. 4: 6 to 24 months[’] incarceration, imposed consecutively to counts 1, 2, and 3. ____________________________________________

1 18 Pa.C.S. § 6312(d) and 18 Pa.C.S. § 907(a), respectively.

____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S78027-17

Cts. 5-40: 1 to 5 years[’ incarceration] concurrent to each other and concurrent to cts 1, 2, and 3.

Ct. 41: 5 years[’] probation.

Sentencing Order, 2/29/16.

On March 9, 2016, Appellant filed a Motion to Reconsider Sentencing in

which he requested the court to resentence him so that “all counts are

sentenced concurrently rather than any consecutive counts.” Motion,

3/9/16, at 1. The court denied this Motion on Mach 11, 2016.

Appellant did not file a timely Notice of Appeal. However, on February

23, 2017, Appellant filed a pro se Petition pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. In his Petition, Appellant

requested, inter alia, that the court reinstate his direct appeal rights. On

February 28, 2017, the court appointed new counsel to represent Appellant

and on March 29, 2017, counsel filed a Supplement to Appellant’s pro se

PCRA Petition.

Following an evidentiary hearing, on May 5, 2017, the court granted

Appellant’s PCRA Petition and reinstated Appellant’s direct appeal rights. On

May 30, 2017, Appellant filed a timely Notice of Appeal Nunc Pro Tunc. Both

Appellant and the trial court complied with Pa.R.A.P. 1925.2 ____________________________________________

2 In his Rule 1925(b) Statement, Appellant claimed that “[t]he sentencing [c]ourt committed legal error and abused its discretion in failing to grant [Appellant’s] [P]ost-[S]entence [M]otion in the nature of a Motion to Reconsider Sentence seeking the modification of the sentencing scheme from consecutive sentences to concurrent sentences.” Pa.R.A.P. 1925(b) Statement, 7/6/17.

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Appellant presents the following issue on appeal:

Whether the sentencing [c]ourt committed legal error and abused its discretion in failing to grant [Appellant’s] [P]ost- [S]entence [M]otion in the nature of a Motion to Reconsider Sentence seeking the modification of the sentencing scheme from consecutive sentences to concurrent sentences?

Appellant’s Brief at 2.

Appellant’s challenge to the imposition of consecutive, rather than

concurrent, sentences is a challenge to the court’s sentencing discretion.

“Where an appellant challenges the discretionary aspects of a sentence . . .

there is no automatic right to appeal, and appellant's appeal should be

considered a petition for allowance of appeal.” Commonwealth v. W.H.M.,

Jr., 932 A.2d 155, 163 (Pa. Super. 2007).

To reach the merits of a discretionary issue, this Court must determine

whether: (1) the appellant preserved the issue either by raising it at the

time of sentencing or in a post-sentence motion; (2) the appellant filed a

timely notice of appeal; (3) the appellant set forth a concise statement of

reasons relied upon for the allowance of his appeal pursuant to Pa.R.A.P.

2119(f); and (4) the appellant raises a substantial question for our review.

Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011)

(citation and footnotes omitted).

In the instant case, Appellant filed a timely Notice of Appeal, and a

Post-Sentence Motion. In his Post-Sentence Motion, he challenged only the

court’s discretion with respect to imposing consecutive rather than

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concurrent sentences. He, thus, preserved that specific issue below, thereby

satisfying the first two requirements of the four-part test.

With respect to the third requirement, the inclusion of a Rule 2119(f)

Statement in the Brief, we note that Appellant has included a separate

Pa.R.A.P. 2119(f) Statement in which he alleges that the sentencing court

violated the fundamental norms underlying the sentencing process when it

“failed to afford due weight and consideration to mitigating factors presented

by [A]ppellant” and “failed to proffer a legally sufficient statement on the

record in support of the imposition of a consecutive sentence.” Appellant’s

Brief at 4. Although Appellant asserts for the first time in this Statement

two new issues in support of his discretionary aspects of sentencing claim,

i.e. mitigating factors and the trial court’s alleged failure to provide reasons

in support of its sentencing decision, by including a Rule 2119(f) Statement

in his Brief, Appellant has arguably satisfied the barest requirement of the

third part of the four-part test. We are, thus, left, with considering the

fourth requirement—whether Appellant has raised a substantial question.

In his Brief, Appellant presents a two-paragraph argument that the

sentencing court failed to consider mitigating factors when sentencing him

and failed to articulate its reasons for imposition of its sentence. Although

there are some circumstances in which we would consider an allegation that

the sentencing court failed to set forth adequately the reasons for the

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sentence imposed as raising a substantial question,3, 4 because Appellant has

raised this argument for the first time on appeal, we find it waived. See

Pa.R.A.P. 302 (“Issues not raised in the lower court are waived and cannot

be raised for the first time on appeal.”). See also Commonwealth v.

Griffin, 65 A.3d 932 (Pa. Super. 2013) (discussing preservation of

discretionary aspects of sentencing claims).

To the extent that Appellant purported to challenge the sentencing

court’s imposition of consecutive, rather than concurrent, sentences,

Appellant abandoned this challenge in his Brief. In any event, it is well-

settled that a bare challenge of this kind does not raise a substantial

question. See Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super.

2014) (“A challenge to the imposition of consecutive rather than concurrent

sentences does not present a substantial question regarding the

discretionary aspects of sentence.”). See also Moury, 992 A.2d at 171-72

(Pa. Super. 2010) (“The imposition of consecutive, rather than concurrent,

sentences may raise a substantial question in only the most extreme

____________________________________________

3 Generally, claims that the sentencing court did not adequately consider mitigating factors does not raise a substantial question. See, e.g, Commonwealth v. Moury, 992 A.2d 162, 175 (Pa. Super. 2010) (“court[’s] refus[al] to weigh the proposed mitigating factors as [a]ppellant wished, absent more, does not raise a substantial question.”).

4 See, e.g., Commonwealth v. Macias, 968 A.2d 773, 776 (Pa. Super. 2009) (“The failure to set forth adequate reasons for the sentence imposed has been held to raise a substantial question.”) (citation omitted).

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circumstances, such as where the aggregate sentence is unduly harsh,

considering the nature of the crimes and the length of imprisonment.”).

Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/27/2018

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