Com. v. Mincy, C. ( 2018 )

J-A05015-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES MINCY :
:
Appellant : No. 2214 EDA 2016
Appeal from the Judgment of Sentence June 22, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007703-2015
BEFORE: DUBOW, J., MURRAY, J., and STEVENS*, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED MARCH 15, 2018
Appellant, Charles Mincy, appeals from the Judgment of Sentence
entered in the Philadelphia County Court of Common Pleas following his
guilty plea to Aggravated Assault, Possession of a Firearm Prohibited
(“VUFA”), Firearms Not to be Carried Without a License, and Possession of
an Instrument of Crime.1 Appellant challenges the discretionary aspects of
his sentence. After careful review, we find that Appellant failed to raise a
substantial question that his sentence was not appropriate under the
Sentencing Code as required to invoke this Court’s jurisdiction to review the
discretionary aspects of Appellant’s sentence. Therefore, we affirm.
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118 Pa.C.S. § 2702(a); 18 Pa.C.S. § 6105(a); 18 Pa.C.S. § 6106(a); 18
Pa.C.S. § 907(a), respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
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The facts are unnecessary for our disposition. On April 21, 2016, the
court sentenced Appellant to 6 to 12 years’ incarceration for Aggravated
Assault followed by 10 years consecutive probation for VUFA § 6105. The
court did not impose any further penalty for the remaining charges.2
On April 26, 2016, the Commonwealth and Appellant filed Motions for
Reconsideration of Sentence. On April 27, 2016, the court vacated its April
21st sentence. Following a Sentencing Hearing, on June 22, 2016, the court
denied the Motions for Reconsideration and reinstated Appellant’s original
sentences.
This appeal followed. Appellant and the trial court complied with
Pa.R.A.P. 1925.
____________________________________________
2 At the sentencing hearing, the court noted that there were ten mitigating
factors. N.T. Sentencing Hr’g, 4/21/16, at 53. The court stated that “the
most telling mitigator is [Appellant’s] medical and physical condition. The
defense attorney provided voluminous information that supports the fact
that the defense attorney was not just puffing in trying to put-trying to gain
sympathy from the [c]ourt about [Appellant’s] condition. It’s pretty clear
that he has a variety of very serious medical conditions that the [c]ourt took
into consideration.” Id. at 53-54. Counsel for Appellant requested that the
court recommend that Appellant serve his sentence at SCI Waymart because
“SCI Waymart deals with people who are elderly and have serious medical
issues.” Id. at 55. The court stated it would make a recommendation that
Appellant go to SCI Waymart “in light of his severe physical condition and
medical history.” Id. at 56. Following the June 22nd hearing, the court
ordered that Appellant was to receive “immediate medical treatment” for his
medical conditions. N.T. Sentencing Hr’g, 6/22/16, at 10.
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Appellant presents the following issue for our review: “Did the court
err in sentencing Appellant to 6 to 12 years[’] incarceration for aggravated
assault which although was below the mitigated guideline range did not take
into account the gravity of Appellant’s illness as the court failed to read
Appellant’s medical records prior to sentencing?” Appellant’s Brief at 7.
Appellant challenges the discretionary aspects of his sentence.
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Griffin, 65 A.3d 932,
935 (Pa. Super. 2013). Accordingly, an appellant must properly invoke this
court’s jurisdiction in order to seek review on the merits by showing that:
(1) the appellant preserved the issue either by raising it at the time of
sentencing or in a post-sentence motion; (2) the appellant filed a timely
notice of appeal; (3) the appellant set forth a concise statement of reasons
relied upon for the allowance of his appeal pursuant to Pa.R.A.P. 2119(f);
and (4) the appellant raises a substantial question for our review.
Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011)
(citation and footnotes omitted). See also Pa.R.A.P. 2119(f).
Here, Appellant met the first three elements by filing a timely Notice of
Appeal, properly preserving the issue in his Post-Sentence Motion for
Reconsideration of Sentence, and including a statement in his Brief which
conforms with Pa.R.A.P. 2119(f). See Appellant’s Brief at 11.
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Accordingly, we ascertain whether Appellant has raised a substantial
question. See Griffin, 65 A.3d at 935. An appellant raises a “substantial
question” when he “sets forth a plausible argument that the sentence
violates a provision of the sentencing code or is contrary to the fundamental
norms of the sentencing process.” Commonwealth v. Crump, 995 A.2d
1280, 1282 (Pa. Super. 2010). This Court has no jurisdiction where an
appellant’s Rule 2119(f) Statement fails to “raise a substantial question as to
whether the trial judge, in imposing sentence, violated a specific provision of
the Sentencing Code or contravened a ‘fundamental norm’ of the sentencing
process.” Commonwealth v. Coulverson, 34 A.3d 135, 142 (Pa. Super.
2011) (citations omitted). Further, an appellant “must provide a separate
statement specifying where the sentence falls in the sentencing guidelines,
what provision of the sentencing code has been violated, what fundamental
norm the sentence violates, and the manner in which it violates the norm.”
Commonwealth v. Dodge, 77 A.3d 1263, 1269 (Pa. Super. 2013) (citation
omitted).
A claim that the sentencing court failed to consider mitigating factors
does not present a substantial question appropriate for our review.
Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013). See
also Commonwealth v. Griffin, 804 A.2d 1, 9 (Pa. Super. 2002) (citing
Commonwealth v. Williams, 562 A.2d 1385, 1388 (Pa. Super. 1989) (en
banc) (concluding that an allegation that the sentencing court did not
adequately consider various factors is, in effect, a request that this Court
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substitute its judgment for that of the lower court in fashioning a defendant's
sentence)).
In the instant case, Appellant avers that although his sentence for
aggravated assault was below the mitigated guideline range, the court erred
in that it did not take into consideration his severe medical needs because
the court failed to read his medical records prior to sentencing. Appellant’s
contention does not set forth a “plausible argument that the sentence
violates a provision of the sentencing code or is contrary to the fundamental
norms of the sentencing process.” Crump, 995 A.2d at 1282. Moreover,
Appellant does not inform us of “what provision of the sentencing code has
been violated, what fundamental norm the sentence violates, and the
manner in which it violated the norm.” Dodge, 77 A.3d at 1269. Appellant
has failed to raise a substantial question as to his sentence, and therefore
failed to invoke the jurisdiction of this Court.
Because Appellant has failed to raise a substantial question, we will
not address the merits of Appellant’s sentencing claim.
Judgment of Sentence Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/15/18
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