Commonwealth v. Felmlee

828 A.2d 1105

• Court: Superior Court of Pennsylvania
• Decided: August 18, 2003
• Status: Published

Opinions

OPINION BY

DEL SOLE, P.J.:

¶ 1 This is a direct appeal from the judgment of sentence imposed after Appellant pled guilty to fleeing or attempting to elude a police officer. He was sentenced to serve twelve to twenty-four months’ incarceration, plus fines and costs. On appeal he alleges that the trial court abused its discretion in sentencing him within the aggravated range of the sentencing guidelines where the record “overwhelmingly supports a sentence in the standard range.” Appellant’s Brief at 6. We affirm.

¶ 2 Before considering the merits of Appellant’s claim we address the timeliness of this appeal. This discussion is brought about due to our initial review of the record in this matter which appears to indicate that Appellant’s post-sentence motion was filed 13 days after the imposition of sentence, which would make it untimely.¹ However, upon closer examination we conclude that Appellant’s motion was timely filed and that the instant appeal is properly before us for review.

¶3 After receipt of Appellant’s guilty plea the trial court imposed sentence on November 30, 2000. Appellant had until Monday, December 11, 2000, in which to file his post-sentence motion. On that day Appellant’s post-sentence motion was received by fax at the clerk of courts’ filing office. The record includes the faxed copy which contains a heading bearing the date 12/11/2000. The motion contains a separate page which includes a certification of notice of service. It recites that the motion was “served on all parties or then-counsel of record by fax on Monday, December 11, 2000.” The motion was not noted on the docket or time stamped until December 13, 2000. That same day the trial court issued a Rule to Show Cause. A hearing was eventually held on January 18, 2001, after which the trial court denied the motion. The notice of appeal was filed within 30 days, on February 16, 2001.

¶ 4 We conclude the motion was timely filed on December 11, 2000, and the notice of appeal was timely filed within 30 days of the entry of the trial court’s ruling on the motion. Pa.R.Crim.P. 720(A)(2)(a). Although the motion was not docketed until two days later, it is apparent that the trial court accepted the facsimile, as it issued a Rule to Show Cause and reviewed the motion at a hearing where neither the court nor the parties commented about its receipt by fax or its timeliness.² Finding the post-sentence motion and the appeal in this matter were timely filed, we turn now to address the merits of this appeal.

¶ 5 Appellant, who challenges only the discretionary aspects of his sentence, sets forth in his Brief a separate Concise Statement of the Reasons for Allowance of Appeal in accordance with Pa. R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Therefore, we must determine if Appellant has raised a substantial question that the sentence imposed is not appropriate under the Sentencing Code. Commonwealth v. Felix, 372 Pa.Super. 145, 539 A.2d 371 (1988).

¶ 6 Appellant complains that the sentencing court sentenced him in the aggravated range without adequate reason and without giving appropriate consideration to mitigating factors. He further complains that the court did not grant him a thorough review of this claim as set forth in his post-sentence motion and he asks this Court to review the entire record to “assure that this Defendant has been sentenced and treated fairly.” Appellant’s Brief at 13. Appellant’s claim that the court erred by imposing an aggravated range sentence without consideration of mitigating circumstances raises a substantial question. Commonwealth v. Anderson, 381 Pa.Super. 1, 552 A.2d 1064 (1988).

¶ 7 We have conducted a review of Appellant’s claim along with the information set forth at the sentencing hearing and post-sentence motion hearing and conclude that the sentence imposed by President Judge White was fair and appropriate.³ Appellant was convicted of Fleeing or Attempting to Elude Police Officers, 75 Pa.C.S.A. § 3738(a). President Judge White noted the danger created when Appellant was driving a motorcycle, at night, with a light barely attached and carrying a passenger. He ignored both the police lights and sirens and a loudspeaker direction by the police officer to pull over. He veered off into the woods, where the officer chased him, ultimately abandoning the chase because of the risk of hitting trees. President Judge White noted the dangerous nature of this chase saying to Appellant at the sentencing hearing, “[Y]ou endangered yourself, you endangered your passenger, and you certainly endangered the police officer. And then, or course, to run like that, leaving your passenger under the wheel to my way of thinking, that’s a cowardly act.” N.T., 11/30/00, at 20.

¶ 8 In reviewing Appellant’s history, the court noted Appellant was on parole at the time of the offense. The judge discussed Appellant’s two juvenile adjudications for burglary and multiple summary offenses, many dealing -with reckless conduct with a motor vehicle, placing people in danger as happened in the instant offense. The court also reviewed a presentence report. It did note certain mitigating facts including the fact that Appellant had finished high school, was trying to go to college, and was employed. He balanced these factors but concluded that an aggravated range sentence was warranted because of the dangerous nature of the conduct and Appellant’s past criminal history. The court found that the state sentence it imposed offered Appellant the opportunity to go to boot camp which it believed would serve as a benefit to Appellant.

¶ 9 Therefore, it is obvious that an experienced trial judge very carefully reviewed all the facts and made an intelligent decision as to sentencing. Under any standard, this sentence is appropriate, and we, therefore, affirm.

¶ 10 Judgment of sentence affirmed.

¶ 11 KLEIN, J. files a concurring opinion, joined by McEWEN, P.J.E. and BENDER, J.

1 . Only a timely-filed post-sentencing motion will trigger an extension of the time for filing a notice of appeal. Pa.R.Crim.P. 720(A)(2). If indeed Appellant’s motion was untimely filed, the notice of appeal subsequently filed after the trial court considered and ruled on Appellant's motion, in excess of 30 days from the original judgment of sentence, would be untimely. Pa.R.Crim.P. 720(A)(3).

2 . Rule 576 of the Rules of Criminal Procedure governs filings with the clerk of courts in criminal matters. It neither authorizes nor prohibits filings by facsimile. It remains within the discretion of the trial court to do as it did here, and accept the timely faxed post-sentence motion as filed.

3 . 42 Pa.C.S.A. § 9721(b); Commonwealth v. Kenner, 784 A.2d 808 (Pa.Super.2001).