Commonwealth v. McFarlin

587 A.2d 732, 402 Pa. Super. 502, 1991 Pa. Super. LEXIS 512

• Court: Superior Court of Pennsylvania
• Decided: March 7, 1991
• Docket: 3150
• Status: Published

Opinions

OLSZEWSKI, Judge:

This appeal challenging the discretionary aspects of appellant’s sentence requires us to determine whether 42 Pa.C.S.A. § 9781(b) violates the right of appeal guaranteed by Article V, Section 9 of the Pennsylvania Constitution. We have reviewed appellant’s Rule 2119(f) statement and find that it does not raise a substantial question as to the appropriateness of the sentence imposed. Further, we hold that § 9781(b) is a reasonable regulation upon the right to appeal, and so does not violate the Pennsylvania Constitution. We affirm judgment of sentence.

Over a two-month period, Larry McFarlin wrote seventy-five checks to various merchants. Unfortunately, the account upon which the checks were drawn had been closed; McFarlin was aware of this when he wrote the checks. McFarlin pled guilty to seventy-five counts of theft by deception and two counts of conspiracy to commit theft by deception.¹ Following a guilty plea to all counts and a pre-sentence investigation, McFarlin was sentenced to a period of incarceration of one and one-half to five years. McFarlin was also sentenced to consecutive and concurrent probation periods totaling seventeen years, subjecting him to supervision for up to twenty-two years. McFarlin was fined $500.00 and ordered to pay restitution in the amount of $8,058.70. A motion to modify sentence was filed and dismissed; this timely appeal followed.

McFarlin’s appeal contains a Rule 2119(f) statement as well as asserting that we should consider his challenge to the discretionary aspects of his sentence should we find that the statement does not present a substantial question as to the appropriateness of the sentence imposed. It is well settled that constitutional questions will not be addressed unless absolutely necessary. Krenzelak v. Krenzelak, 503 Pa. 373, 381, 469 A.2d 987, 991 (1983) (citation omitted). Accordingly, we will first examine the sufficiency of McFarlin’s Rule 2119(f) statement.

McFarlin’s statement enumerates the numbers of counts to which he pled guilty and categorizes those counts as twenty-two first-degree misdemeanors, forty-two second-degree misdemeanors and five third-degree misdemeanors. The statement also lists the incarceration and probation to which McFarlin was sentenced. McFarlin claims the sentence imposed is not appropriate under the Sentencing Code (42 Pa.C.S.A. § 9701 et seq.) as it is manifestly excessive. McFarlin notes that all of his crimes were misdemeanors; his prior criminal record is one incident involving aggravated assault and terroristic threats; and the total supervision imposed is more than four times greater than the maximum sentence which could have been imposed for any single one of the offenses to which he pled guilty. McFarlin also asserts that the offenses committed were the product of his drug and alcohol abuse. (Appellant’s brief, page 12.)

The determination of whether a Rule 2119(f) statement raises a substantial question must be made on a case-by-case basis. Commonwealth v. Losch, 369 Pa.Super. 192, 201, n. 7, 535 A.2d 115, 119, n. 1 (1987) (citations omitted). This Court will be inclined to examine the discretionary aspects of an appellant’s sentence where the statement “advances a colorable argument that the trial judge’s actions were: 1) inconsistent with a specific provision of the Sentencing Code, or 2) contrary to the fundamental norms which underlie the sentencing process.” Id. (citations omitted).

McFarlin has not advanced a colorable argument that the sentence imposed violates any specific provision of the Sentencing Code; in fact, McFarlin makes no mention of any specific provision of the Code. Nor has McFarlin specified any deviation from the fundamental norms underlying the sentencing process as outlined in 42 Pa.C.S.A. § 9721(b).² McFarlin’s arguments that his crimes were relatively minor, that his prior criminal record is insignificant, and that his dependency induced his crimes, without more, do not raise a substantial question. Commonwealth v. Hall, 382 Pa.Super. 6, 16-17, 554 A.2d 919, 924 (1989) alloc. denied, 525 Pa. 577, 575 A.2d 109 (1990). Accordingly, having determined that McFarlin’s Rule 2119(f) statement is insufficient under § 9781(b), we examine the constitutionality of that section.

Certain principles apply to any challenge to the constitutionality of a statute. An act of the General Assembly carries a strong presumption of constitutionality; a party seeking to rebut that presumption bears a heavy burden of persuasion. Consumer Party v. Commonwealth, 510 Pa. 158, 175-76, 507 A.2d 323, 331-32 (1986) (citations omitted). See also, 1 Pa.C.S.A. § 1922(3). “Legislation will not be invalidated unless it clearly, palpably, and plainly violates the Constitution, and any doubts are to be resolved in favor of a finding of constitutionality.” Id., (quoting, Pennsylvania Liquor Control Board v. The Spa Athletic Club, 506 Pa. 364, 370, 485 A.2d 732, 735 (1984)). When reviewing a statute, a court must exercise every reasonable effort to uphold its provisions. Tracy v. Chester County Tax Claim Bureau, 507 Pa. 288, 296, n. 2, 489 A.2d 1334, 1339, n. 2 (1985). With these precepts in mind, we consider McFarlin’s claim.

The Pennsylvania Constitution guarantees a right of appeal from a court of record:

There shall be a right of appeal in all cases to a court of record from a court not of record; and there shall also be a right of appeal from a court of record or from an administrative agency to a court of record or to an appellate court, the selection of such court as to be provided by law; and there shall be such other rights of appeal as may be provided by law.

PA. CONST, art. V, § 9. The Judicial Code provides the procedure for exercising this right when the issue on appeal is the discretionary aspects of the sentence imposed following criminal proceedings:

The defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of a sentence for a felony or misdemeanor to the appellate court that has jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.

42 Pa.C.S.A. § 9781(b). Focusing on the phrases “allowance of appeal” and “granted at the discretion of the appellate court,” McFarlin argues that this section, in effect, renders this type of appeal discretionary in violation of the constitutional right to appeal. We do not agree.

We recognize that this right has been construed as absolute. Commonwealth v. Wilkerson, 490 Pa. 296, 299, 416 A.2d 477, 479 (1980). We are also aware that § 9781(b) has been construed as a limitation upon that right. Commonwealth v. Jones, 523 Pa. 138, 142-43, 565 A.2d 732, 734 (1989); Commonwealth v. Tuladziecki, 513 Pa. 508, 513, 522 A.2d 17, 19-20 (1987). Nonetheless, the existence of an absolute right to appeal does not, in and of itself, render all limitations governing the exercise of that right unconstitutional.³ It has long been the law that both the legislature and the courts have the authority to enact reasonable regulations controlling the exercise of the constitutional right of appeal. Sayres v. Commonwealth, 88 Pa. 291, 306-08 (1879). All regulations are, to some extent, limitations. If the limitation imposed by § 9781(b) is a reasonable control of the exercise of the right to appeal, it is constitutionally valid.

We hold today that § 9781(b) is a reasonable regulation of the right to appeal. The section only applies where an accused appeals the discretionary aspects of his sentence; it imposes no burden on an accused asserting other errors by the trial court. The discretionary aspects of a sentence are normally left undisturbed on appeal as the trial court is in a more advantageous position to weigh the factors appropriate to determining sentence. Commonwealth v. Martin, 466 Pa. 118, 131, 351 A.2d 650, 657 (1976). Only if the trial court manifestly abuses its discretion will the sentence be disturbed. Commonwealth v. Plank, 498 Pa. 144, 145, 445 A.2d 491, 492 (1982) (citation omitted). Abuse of discretion consists of overlooking pertinent facts, disregarding the force of the evidence, committing an error of law, or imposing a sentence which exceeds the statutory maximum. Commonwealth v. Townsend, 497 Pa. 604, 606-07, 443 A.2d 1139, 1140 (1982) (quoting, Commonwealth v. Edrington, 490 Pa. 251, 255-56, 416 A.2d 455, 457 (1980)). In effect, § 9781(b) merely requires an accused to indicate how the trial court possibly abused its discretion before the appellate court will consider the merits of his contentions as to the discretionary aspects of his sentence.

Unless a trial court has abused its discretion, the discretionary aspects of a sentence will remain undisturbed on appeal.⁴ If an accused can point to a possible abuse by the trial court, a substantial question exists entitling him to review. Absent such an abuse by the trial court, the defendant’s appeal is meritless. Section 9781(b) acts as a threshold burden which a defendant must meet. Commonwealth v. Chilcote, 396 Pa.Super. 106, 120, 578 A.2d 429, 436 (1990).⁵ Adoption of McFarlin’s contention would inundate the appellate courts; criminal defendants would automatically appeal the discretionary aspects of every sentence imposed. This Court would be required to consider the merits of every such challenge no matter how obviously meritless.

Nor are we persuaded by the dissent’s claim that the practical application of the substantial question requirement has led to dubious standards and inconsistent results. It is a given that evaluation of what constitutes a substantial question is performed on a case-by-case basis. Losch, supra 369 Pa.Super. at 201 n. 7, 535 A.2d at 119 n. 7; Commonwealth v. Semuta, 386 Pa.Super. 254, 260, 562 A.2d 894, 897 (citation omitted) alloc. denied, 524 Pa. 596, 568 A.2d 1246 (1989). It is unavoidable that any rule calling for an evaluation on a case-by-case basis will result in close decisions where the opposite conclusion could be justified. That does not make the standard dubious, nor the results inconsistent.

We recognize that McFarlin’s position has some logical appeal. This Court, however, is obligated to pursue every possible avenue to validate a statutory provision due to the heavy presumption of constitutionality which attaches to such provisions. We cannot say that the operation of § 9781(b) clearly, plainly and palpably violates the constitution, despite the phrases “allowance of appeal” and “granted at the discretion of the court” which it contains. Therefore, we hold that 42 Pa.C.S.A. § 9781(b) is a reasonable regulation of the exercise of the right to appeal; as such, it does not violate Article V, Section 9, of the Pennsylvania Constitution.

Petition for allowance of appeal denied; judgment of sentence affirmed.

DEL SOLE, J., files a dissenting opinion in which WIEAND and BECK, JJ., join. McEWEN, J., concurs in the result.

1 . The checking account had belonged to McFarlin and his wife. McFarlin’s wife was his co-conspirator.

2 . The trial judge considered the sentencing guidelines promulgated pursuant to § 9721(b) before imposing sentence. (Trial court opinion at 4, N.T. 11/2/89 at 9.) McFarlin’s statement makes no mention of the sentencing guidelines.

3 . We note in passing that, while not at issue here, the Pennsylvania Constitution itself provides for the promulgation of rules governing the practice, procedure, and conduct of courts so long as these rules do not abridge, enlarge, or modify the substantive rights of litigants. PA. CONST, art. V, § 10(c).

4 . The dissent argues that the discretionary sentencing power is one of the most easily abused powers and, therefore, an appeal of every discretionary aspect of a sentence is required to insure that no such abuse occurs. (Dissent at 738-39.) While we do not agree that our trial court brethren are likely to engage in wholesale abuse of their powers, we must emphasize that the discretionary aspects of a sentence are just that: entrusted to the discretion of the trial judge. Reversal is indicated only where there has been a manifest abuse of discretion. Plank, supra. We fail to see how an examination of every discretionary sentence will curb the looming spectre of abuse the dissent fears. If a manifest abuse of discretion is present, substantial grounds exist. If not, an examination of the merits will not result in reversal. Examination of all discretionary sentence abuse claims will only result in more control of the trial courts if it is accompanied by a change in the standard of review.

5 . It is also argued that compliance with § 9781(b) and Rule 2119(f) complicates the appellate process by adding an additional analytical , tier to an attack upon the discretionary aspects of a sentence. Chilcote, supra 396 Pa.Super. at 130-31, 578 A.2d at 441 (Popovich, J., concurring). We believe the opposite to be true. Rather than complicating the process, the threshold burden streamlines that process.