Case Information
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA [1] IN THE SUPERIOR COURT OF PENNSYLVANIA
Appellee
SCOTT WILBUR TILDEN, JR.
Appellant No. MDA 2016 Appeal from the Judgment of Sentence August 2016 In the Court Common Pleas of Perry County Criminal Division at No(s): CP-50-CR-0000475-2015
BEFORE: BOWES, J., LAZARUS, J., and MUSMANNO, J. FILED APRIL 04, 2017
MEMORANDUM BY LAZARUS, J.: Scott W. Tilden. Jr., appeals from the judgment of sentence imposed, following conviction the Court of Common Pleas Perry County, of two counts of robbery.' Tilden argues the abused its discretion by directing this matter, to run consecutively sentence imposed following conviction Adams County of third count of robbery. After review, we affirm.
On January 2016, Tilden pleaded guilty Adams County to one count of robbery, graded felony second degree. court sentenced Tilden to three (3) to six years' imprisonment. August 11, ' Pa.C.S.A. § 3701(a)(1)(vi).
2016, Tilden pleaded guilty two additional counts of robbery in Perry County, each graded felony second degree.
At the sentencing hearing, the trial court in Perry County examined personal history the details of the three robberies. N.T. at 5. The first two robberies occurred at the First National Bank of Mifflintown in Perry County on September 16, 2015, September 22, different teller -employee present each of the two robberies, resulting in two different victims. The third robbery occurred at different banking institution one week later, Adams County, on September 29, 2015.
On August 11, 2016, following review of Tilden's Presentence Investigation Report ("PSI"), Tilden received sentence, on each count, of twenty-four sixty months' imprisonment, each to run consecutively. trial court directed this to run consecutively the sentence imposed robbery Adams County.
Tilden filed appeal. On October filed Pa.R.A.P. 1925(b) concise matters complained of on appeal. appeal, raises the following issue: trial court err not running [Tilden's] sentence
Did concurrently of Adam's County [Tilden] was alleging crime spree being the result of drug addiction? Appellant's Brief at
The argues the sentencing acted its It further argues discretion imposing Tilden's sentences consecutively. that 2119(f) statement2 technically deficient, and thus has failed to raise a substantial question that justifies review of the discretionary aspect of sentence. We agree. challenge the discretionary aspects of a sentence does not entitle appellant review a matter of right. Rather, before this Court can
address such a discretionary challenge, appellant must comply with the following requirements:
An appellant challenging the discretionary aspects of his must invoke the Superior Court's jurisdiction on appeal satisfying a four-part test: whether appellant has filed a notice appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue properly preserved at sentencing or a motion to reconsider modify sentence, see Pa.R.Crim.P. 2119(f); whether appellant's brief fatal defect, Pa.R.A.P. 2119(f); whether there that the sentence appealed from appropriate under the Sentencing Code. v. Swop, 123 A.3d 337 2015), quoting Allen, 24 An appellant who challenges the discretionary aspects matter shall set forth separate section of the brief concise
statement reasons relied upon allowance of appeal with respect the aspects of sentence. shall immediately precede argument on merits with respect discretionary aspects of sentence. Pa.R.A.P.
Presently, Tilden filed a notice of appeal, but did not preserve issue in a post -sentence motion challenging the discretionary aspects of sentence. However, during Tilden's sentencing proceeding, he presented to specific issue later raised in his Rule 1925(b) statement. N.T. 6-9; Appellant's Brief, at Thus, effectively preserved issue for appeal.3 the inappropriateness of a sentence exists where the appellant "sets forth a plausible argument the sentence violated a provision of the sentencing code contrary fundamental norms of the sentencing process." Naranjo, 53 A.3d 72 (Pa. Super. 2012) (citations quotations omitted). appeal, a defendant must provide, writing, specifying the following: where their sentence falls the sentencing guidelines, (2) what provision of the sentencing code been violated, what fundamental norm the sentence violated, (4) the manner which it violated the norm. Id.
Within this framework, "[a] defendant may raise substantial question sentence appropriate . . where receives consecutive . [3] "Issues challenging the discretionary aspects must raised post -sentence motion or presenting the claim to trial court during the sentencing proceedings. Absent such efforts, objection aspect waived." v. Lamonda, 2012) quoting Shugars, 895 A.2d 1270, 1273-74 sentences within the guideline ranges if the case involves circumstances where the application of the guidelines would clearly unreasonable, resulting excessive sentence." v. Dodge, A.3d 1263, 1270 (Pa. 2013). An excessive sentencing claim made in conjunction with assertion the court did not consider mitigating factors may also raise substantial question. See Perry, 883 A.2d 599, 602
Here, Tilden's Rule 2119(f) statement outlines six reasons he believes present substantial question appeal. Appellant's Brief, at Taken in aggregate, reasons (1), (2), (3), (6) address Tilden's contention that trial court did not address or consider his drug addiction either as mitigating factor or nexus of what avers three -robbery crime spree constituting single episode. Reason addresses Tilden's compromised ability make the victims his robberies whole.
Noticeably absent from 2119(f) Statement an identification of where the sentencing guidelines sentence falls or any assertion was imposed violation of the sentencing guidelines. These elements are required. Naranjo, Additionally, proffers no reason nor cites authority suggesting that imposition of "violates particular provision of the Sentencing Code contrary fundamental norms underlying sentencing process." Johnson, 873 A.2d 704, 708 Super. 2005). Also noticeably absent from Tilden's Rule 2119(f) Statement claim that imposition of consecutive sentences resulted excessive sentence. Dodge, supra; Perry, supra.4
We agree with that Tilden's Rule 2119(f) the Commonwealth technically deficient. Commonwealth's Brief at Tilden's sentence falls the lower end of the standard range of the sentencing guidelines, and offers no legitimate argument suggesting the imposition of consecutive sentences unreasonable or results excessive punishment. 2119(f) statement fails to raise
justify review of the aspect of sentence. We, therefore, may not review the merits of claim.
Judgment of sentence affirmed.
Judge Musmanno joins the Memorandum, Judge Bowes concurs the result. We note considered Tilden's PSI report. Where the
sentencing judge had benefit of PSI report, it will presumed he she was aware of the relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors. Boyer, 856 A.2d 149, Moreover, each robbery perpetrated Tilden involved different individual victims, occurred approximately one week apart from one another took place two different jurisdictions. crimes are not related factually or temporally, thus do constitute single episode. 18 Pa.C.S. §110(1)(ii). Further, at Tilden's sentencing hearing, he acknowledged the Commonwealth agreed to the lower end of the standard sentencing range. N.T.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 4/4/2017
