Case Information
NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA v.
KEVIN ALAN SMITH, JR.
Appellant No. 71 MDA 2016 Appeal from the Judgment of Sentence December 2015 In the Court of Common Pleas of Columbia County Criminal Division at No(s): CP- 19 -CR- 0000668 -2013 CP- -CR- 0000669 -2013
BEFORE: GANTMAN, P.J., BOWES AND PLATT,* JJ. FILED OCTOBER 2016
MEMORANDUM BY BOWES, J.: Kevin Alan Smith, Jr. appeals from the aggregate judgment sentence of nineteen thirty -eight months of incarceration imposed following entry guilty plea at two criminal cases. We affirm.
The following facts are revealed by affidavits of probable cause. On June 18, Columbia County adult probation officers stopped a vehicle suspected wanted person. officers requested assistance from Scott Township Police. Sergeant Mike Grassley went the vehicle spoke Appellant, who was seated rear. sergeant learned, upon consulting database, had several outstanding warrants. thus removed from the vehicle handcuffed; however, he * Retired Senior Judge assigned to the Superior Court.
was able to escape. Sergeant Grassley gave chase and tackled Appellant, who continued fight with the officer. Appellant was eventually subdued and placed in police vehicle, where he kicked out the rear driver's side window. Sergeant Grassley hurt his shoulder during the incident. Appellant was charged at criminal action number -668 with aggravated assault a police officer, simple assault, resisting arrest, two summary offenses. was lodged Columbia County Prison in aforementioned crimes. While there, he broke the window of his cell an attempt to escape. As result, Appellant was charged at criminal action number 2013 -669 with escape, criminal attempt (escape), institutional vandalism, summary offense. waived preliminary hearing at both cases on August 7, informations were filed later month. cases were
2013, postponed several times over the ensuing two years, largely at Appellant's request.'
' From October 30, 2013 through January 2014 the cases were postponed psychological evaluation. From January of through August of 2014, Appellant's attorney filed postponements indicated the parties were discussing plea.
Additionally, Appellant recommitted, April state correctional institute as result of parole revocation. N.T. Sentencing, 12/21/15, 7. certified record reveals at least one postponement occurred due to difficulties securing presence from facility.
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On September Appellant entered a guilty plea.2 Appellant pleaded guilty at case number 2013 -668 to the counts of simple assault and resisting arrest. At case number 2013 -669, he entered a plea to offenses of criminal attempt (escape) institutional vandalism. All remaining counts were withdrawn. parties appeared December 21, 2015 sentencing.
Appellant, who had a prior record score of four, informed the he a diagnosis of borderline personality disorder, bipolar disorder, and had undergone twenty hospitalizations, including sixty -day stay at Torrance State Hospital. N.T. Sentencing, 12/21/15, -4. At case ending he received sentence of fifteen to thirty months the criminal attempt (escape) charge, with concurrent period three to six months for institutional vandalism. In the other case, received sentence of four to eight months incarceration at the simple assault charge, set to run consecutively imposed at 2013 -669. As the remaining charge of resisting arrest, Appellant received concurrent sentence of three six months incarceration. timely filed post- sentence motion requesting sentence modification, averring judge failed to take into consideration his A transcript of these proceedings does not appear the certified record.
J-S58025-16 extensive mental health history. motion was denied by order docketed January 6, 2015. lodged timely notice of appeal and complied with the order file Pa.R.A.P. 1925(b) statement. The trial issued its Rule 1925(a)
opinion April 2016, and the matter is now ready our review. raises two claims, both implicating the discretionary aspects of his sentence.
1. Whether the [t]rial [c]ourt abused its discretion in sentencing the Appellant[ ?]
2. Whether the [t]rial [c]ourt erred when it failed to consider Appellant's mental health in sentence[ ?]
Appellant's brief 5.
Preliminarily, note that "there is no absolute right to appeal when challenging discretionary aspect of sentence." v. Ahmad, 961 A.2d 886 (Pa.Super. 2008). An appellant must first satisfy four -part test invoke this Court's jurisdiction. examine
(1) whether appellant has filed timely notice of appeal, see Pa.R.A.P. and 903; (2) whether issue was properly preserved at sentencing or motion reconsider modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief fatal defect, Pa.R.A.P. 2119(f); (4) whether there a substantial question the sentence appealed from not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b). Griffin, A.3d 935 (Pa.Super. 2013) (citation omitted).
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Herein, the first three requirements of the four -part test are met: This appeal is timely, a post- sentence motion challenged the issue raised herein, brief includes a separate Pa.R.A.P. 2119(f) statement preceding the argument portion of the brief.
We next determine whether Appellant raises substantial question permitting our review of the discretionary aspects of the sentence imposed. The Rule 2119(f) statement reads:
The [t]rial [c]ourt sentenced fifteen (15) months thirty (30) months. The [t]rial [c]ourt failed to take into consideration various important factors this sentence, such as the Appellant's mental health history. Accordingly, this case should remanded new sentencing hearing.
Appellant's brief -6.3 argues this statement fails to raise substantial question. We agree. determination whether there substantial question made case -by -case basis, will grant appeal "only when the
appellant advances colorable argument the sentencing judge's actions were either: (1) inconsistent with specific provision of the Sentencing Code; or (2) contrary fundamental norms which underlie sentencing process." Moury, A.2d 162, 170 note while Appellant lodged this appeal at both criminal numbers, the brief itself addresses only the sentence imposed at the criminal attempt (escape) count.
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(Pa.Super. 2010) (quoting Commonwealth v. Sierra, 752 A.2d 912- 913 (Pa.Super. 2000)).
In Haynes, A.3d 807 (Pa.Super. 2015), we found the appellant failed to raise substantial question where he asserted that the trial court "failed to consider his mental health issues and rehabilitative needs." Id. (citing appellant's brief). We stated:
[T]his Court has held numerous occasions that claim of inadequate consideration of such factors does not raise a substantial question our review. point out that Haynes does not allege that the trial court was unaware of his mental health issues or his rehabilitative needs. Indeed, Haynes not raised an issue "(1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to fundamental norms which underlie the sentencing process." Thus, conclude this claim fails present substantial question review.
Id. at 807 (citations omitted). The same true here: Appellant's Rule 2119(f) statement does not allege that the unaware of the mental health issues. While posits there are other factors the court failed to consider, those items are not delineated. See v. Provenzano, A.3d 148, 154 (Pa.Super. 2012) (reviewing court cannot the 2119(f) look beyond statement of questions presented statement determine whether substantial question exists). Thus, sentencing claim appears little more than challenge to court's weighing of all sentencing factors, including rehabilitative needs posed by the purported mental health issues and other factors, whatever
J-S58025-16 those may be. Appellant fails to allege anything warrants departure from Haynes under our case -by -case approach. Therefore, we find Appellant failed to present substantial question.
Even if Appellant had raised substantial question, would not find an abuse of discretion. Upon review of Appellant's substantive argument, it clear objection not to the sentence itself but rather choice sentencing alternatives under Section 9721(a) of the Sentencing Code. asks us find that, light of his mental health issues, sentencing abused its discretion by sentencing state correctional institution rather than mental facility. Appellant's brief 7. Sentencing Code provides the sentencing judge shall select from one or more of the following alternatives when imposing sentence:
(1) An order of probation.
(2) A determination guilt without further penalty.
(3) Partial confinement.
(4) Total confinement.
(5) A fine.
(6) County intermediate punishment.
(7) State intermediate punishment. Pa.C.S. § 9721(a). discern Appellant's argument he should have been permitted to serve through some type of treatment plan. See e.g. Pinko, 811 A.2d (Pa.Super. 2002) ( "Appellant sentenced to 60 months of intermediate punishment, all restrictive at the Dauphin County Work Release Center or, if appropriate, to
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inpatient treatment mental illness. "). However, "The sentencer has broad discretion to choose penalty from sentencing alternatives and the range of permissible confinements, provided the choices are consistent with the protection public, the gravity of the offense, and rehabilitative needs of the defendant." Commonwealth v. Childs, 664 A.2d 996 (Pa.Super. 1999) (quoting v. Devers, 546 A.2d 12, 13 (Pa. 1988)).
The trial court clearly did not abuse its discretion in this regard. The Pa.R.A.P. 1925(a) opinion, in addressing sentencing challenge, states: "It noted [Appellant] been placed in forensic units in the state correctional system, which probably the best placement him. sentences handed down did, fact, take into account the [appellant]'s extensive mental health diagnoses history." Trial Court Opinion, 4/8/16, -3 (original unnumbered). sentences were within standard range of the guidelines at all counts. Were permitted to reach merits, our standard of review limits our ability vacate remand in cases where the sentenced within the guidelines. may reverse only if applying the guidelines would clearly unreasonable under the circumstances. Pa.C.S. § 9781(c)(2); See Macias, 968 A.2d 773, (Pa.Super. 2009) (defining unreasonable as decision that
J-S58025-16 either irrational or not guided by sound judgment). was within the guidelines choice to apply them rational.4
Judgment of sentence affirmed.
Judgment Entered. /
J seph D. Seletyn,
Prothonotary
Date: 10/24/2016 also note specifically requested any period incarceration imposed state facility instead of county jail. N.T. Sentencing, 12/21/15, 7.
