Com. v. Anderson

Citation2003 PA Super 290,830 A.2d 1013
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Clifford J. ANDERSON, Appellant.
Decision Date07 August 2003
CourtSuperior Court of Pennsylvania

Robert F. Hawk, Butler, for appellant.

Timothy F. McCune, Asst. Dist. Atty., Butler, for Com., appellee.

BEFORE: TODD, GRACI, and KELLY, JJ.

OPINION BY KELLY, J.:

¶ 1 Appellant, Clifford J. Anderson, asks us to determine whether the trial court miscalculated his prior record score and consequently imposed an excessive sentence without sufficient reasons for sentencing Appellant in the aggravated range of the sentencing guidelines. Appellant also questions whether the court relied on improper factors when imposing Appellant's sentence. We hold the trial court properly calculated Appellant's prior record score where Appellant's previous sentences were not totally concurrent, and adequately stated its reasons for the sentence imposed. We further hold Appellant has waived his claim that the court considered improper factors at sentencing for failing to object at sentencing or preserve the issue in a post-sentencing motion. Accordingly, we affirm.

¶ 2 The relevant facts and procedural history are as follows:

[Appellant] was arrested on May 22, 2000, and charged at one count each of Possession with Intent to Deliver, 35 P.S. § 780-113(a)(30), and Possession of a Controlled Substance, 35 P.S. § 780-113(a)(16). The case proceeded to trial by jury before the Honorable Thomas J. Doerr on March 12, 2001. On March 14, 2001, the jury found [Appellant] guilty of both offenses. On May 16, 2001, the Court sentenced [Appellant] to a term of imprisonment of thirty-three (33) to one hundred twenty (120) months for the Possession With Intent to Deliver conviction and to no further penalty for the Possession of a Controlled Substance conviction.
The sentence was in the aggravated range. The Court based the aggravated sentence on several factors, including [Appellant's] prior felony convictions at CC # 572 of 1998, 573 of 1998, 574 of 1998, and 575 of 1998. In light of the prior convictions, the Court used a prior record score of five (5) in imposing sentence. [Appellant] filed a Motion for Modification of Sentence on May 29, 2001.1

(Trial Court Opinion, dated September 21, 2001, at 1-2). The trial court denied Appellant's post-sentencing motion on September 12, 2001. Appellant did not file a direct appeal. On April 13, 2002, Appellant filed a timely pro se petition under the Post Conviction Relief Act2, counsel was appointed, and the court held a hearing on the petition. On August 2, 2002, the trial court reinstated Appellant's rights to a direct appeal nunc pro tunc. This timely appeal followed.

¶ 3 Appellant raises the following issues for our review:

I. WHETHER THE PRIOR RECORD SCORE USED IN COMPUTING
SENTENCE TO BE ENTERED AGAINST DEFENDANT (APPELLANT HEREIN) WAS ERRONEOUSLY COMPUTED?
II. WHETHER THE SENTENCE IMPOSED ON THIS CASE WAS EXCESSIVE?
III. WHETHER THE HONORABLE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING IN THE AGGRAVATING CIRCUMSTANCES RANGE?

(Appellant's Brief at 3).

¶ 4 Initially, Appellant argues that his prior record score should be two (2). Specifically, Appellant asserts that the court miscalculated his prior record score because the sentences Appellant received in 1998 on four felonies were imposed totally concurrent. Pursuant to 204 Pa.Code § 303.5(b), Appellant contends only the conviction with the greatest number of points under Section 303.7 should be counted in his prior record score. Further, Appellant submits under subsection (c), totally concurrent means each sentence imposed does not increase the term of the sentence. Appellant concludes the trial court improperly treated his four felony convictions in 1998 as separate offenses and applied an incorrect prior record score to his current offenses.

¶ 5 Next, Appellant asserts his sentence is excessive because the trial court erred in calculating his prior record score. As a result of the court's error, Appellant submits his sentence was inordinately increased. Appellant also complains the court failed to provide its reasons on the record for sentencing Appellant in the aggravated range.

¶ 6 Finally, Appellant contends the court relied on improper factors when imposing his sentence. Specifically, Appellant states the court considered as aggravating circumstances, Appellant's misconduct in prison, the fact that his crimes were committed while he was on probation, and his failure to pay fines and costs associated with his prior convictions. Appellant concludes his judgment of sentence should be vacated and the case remanded for resentencing. We disagree.

¶ 7 As a preliminary matter, we note that objections to the discretionary aspects of a sentence are waived if they are not raised at the sentencing hearing or raised in a motion to modify the sentence imposed at that hearing. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super.2003); Commonwealth v. Petaccio, 764 A.2d 582, 586 (Pa.Super.2000). "To reach the merits of a discretionary sentencing issue, we conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa. R.Crim.P. 1410 [now Rule 720]; (3) whether appellant's brief has a fatal defect, Pa. R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b)." Id. (citing Commonwealth v. Martin, 416 Pa.Super. 507, 611 A.2d 731, 735 (1992)).

¶ 8 In the present case, Appellant did not object to the court's alleged consideration of "improper factors" at sentencing or in his post-sentencing motion. See Petaccio, supra. Indeed, this issue was not raised until Appellant filed his court-ordered Rule 1925(b) statement. Accordingly, Appellant has waived his third issue and argument with respect to the court's consideration of improper factors at sentencing.3 See id.; Pa.R.Crim.P. 720.

¶ 9 Those issues Appellant properly preserved in his post-sentencing motion and his Rule 1925(b) statement also raise challenges to the discretionary aspects of his sentence. Pennsylvania law makes clear that an appellant's challenge to the discretionary aspects of his sentence is not reviewable as a matter of right. Commonwealth v. Hunter, 768 A.2d 1136 (Pa.Super.2001), appeal denied, 568 Pa. 695, 796 A.2d 979 (2001); Commonwealth v. Darden, 366 Pa.Super. 597, 531 A.2d 1144, 1146 (1987). When appealing the discretionary aspects of a sentence, an appellant must invoke the appellate court's jurisdiction by including in his brief a separate concise statement demonstrating that there is a substantial question as to the appropriateness of the sentence under the Sentencing Code. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987); 42 Pa.C.S.A. § 9781(b); Commonwealth v. Eby, 784 A.2d 204 (Pa.Super.2001). "The requirement that an appellant separately set forth the reasons relied upon for allowance of appeal `furthers the purpose evident in the Sentencing Code as a whole of limiting any challenges to the trial court's evaluation of the multitude of factors impinging on the sentencing decision to exceptional cases.'" Commonwealth v. Williams, 386 Pa.Super. 322, 562 A.2d 1385, 1387 (1989) (en banc) (emphasis in original).

¶ 10 If an appellant fails to comply with Pa.R.A.P. 2119(f) and the Commonwealth does not object, the reviewing Court may overlook the omission if the presence or absence of a substantial question can easily be determined from the appellant's brief. Commonwealth v. Saranchak, 544 Pa. 158, 675 A.2d 268 (1996), cert. denied, 519 U.S. 1061, 117 S.Ct. 695, 136 L.Ed.2d 617 (1997). However, if the appellant fails to comply with Pa.R.A.P. 2119(f) and the Commonwealth objects, the issue is waived for purposes of review. Id.; Commonwealth v. Archer, 722 A.2d 203 (Pa.Super.1998).

¶ 11 In the instant case, Rule 2119(f) and Tuladziecki apply. Appellant failed to include a separate Rule 2119(f) statement in his brief, immediately preceding the argument section. See id. Because Appellant neglected to include a Rule 2119(f) statement and the Commonwealth made a proper objection in its brief, we could deem Appellant's challenge waived. See Saranchak, supra; Hunter, supra; Archer, supra.

¶ 12 We note, however, that in his appeal Appellant raises only challenges to the discretionary aspects of his sentence. Appellant has set forth a statement of his sentencing challenges immediately preceding the argument section of his brief. Although not properly designated as a Rule 2119(f) statement, it is sufficient for us to examine whether Appellant has identified a colorable claim regarding the appropriateness of his sentence under the Sentencing Code. See Mouzon, supra. Thus, we decline to put form over substance and will proceed to determine whether Appellant has raised a substantial question.

¶ 13 As a matter of law, not every issue concerning the discretionary aspects of sentencing raises a substantial question. The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. Commonwealth v. Losch, 369 Pa.Super. 192, 535 A.2d 115, 119 n. 7 (1987). In this regard, our Supreme Court recently restated:

To demonstrate that a substantial question exists, a party must articulate reasons why a particular sentence raises doubts that the trial court did not properly consider [the] general guidelines provided by the legislature.

Mouzon, supra at 426, 812 A.2d at 622. Appellant need raise only a colorable argument that the decision of the sentencing court was either inconsistent with a specific provision of the Sentencing Code or inappropriate under the Sentencing Code as a whole; that is, contrary to the...

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