Com. v. Hunter, B. ( 2017 )


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  • J-S92033-16
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
    :          PENNSYLVANIA
    Appellee               :
    :
    v.                     :
    :
    BRANDON DEMON HUNTER,                    :
    :
    Appellant              :     No. 858 WDA 2016
    Appeal from the Judgment of Sentence September 21, 2015
    in the Court of Common Pleas of Erie County,
    Criminal Division, at No(s): CP-25-CR-0002215-2014
    BEFORE:     SHOGAN, MOULTON, and STRASSBURGER, JJ.*
    MEMORANDUM BY STRASSBURGER, J.:              FILED FEBRUARY 10, 2017
    Brandon Demon Hunter (Appellant) appeals from the judgment of
    sentence imposed after he pled guilty to firearm not to be carried without a
    license. Upon review, we affirm.
    The trial court summarized the factual history underlying Appellant’s
    guilty plea as follows.
    On July 8, 2015, Appellant appeared before the Honorable
    Ernest J. DiSantis, Jr., and pled guilty to the aforementioned
    offense. In exchange, the Commonwealth [nolle prossed] the
    remaining counts.
    On September 21, 2015, Appellant appeared before the
    Honorable Shad Connelly and was sentenced to a term of 18 to
    36 months’ incarceration, consecutive to his sentence at Docket
    No. [CP-25-CR-0002216-2014]. All credit for time served was
    applied to Docket No. 2216 of 2014. On October 1, 2015,
    Appellant filed a motion for modification of sentence, which was
    denied by Judge Connelly on October 2, 2015.
    *Retired Senior Judge assigned to the Superior Court.
    J-S92033-16
    On January 21, 2016, Appellant filed a pro se filing, which
    [the trial c]ourt treated as a PCRA petition. PCRA counsel was
    appointed, [and] subsequently filed a supplemental PCRA
    petition. On May 18, 2016, [the trial court] granted PCRA relief,
    only as it related to reinstating his direct appellate rights nunc
    pro tunc.
    Appellant filed a timely notice of appeal nunc pro tunc on
    June 15, 2016. In response, [trial court] directed Appellant to
    file a concise statement of matters complained of on appeal
    [(CSECA)]. Appellant timely complied on July 8, 2016[.]
    Trial   Court   Opinion    7/25/2016,   at    1-2   (citations   and   unnecessary
    capitalization omitted).
    On appeal, 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.   An appellant
    challenging the discretionary aspects of     his [or her] sentence
    must invoke this Court’s jurisdiction by     satisfying a four-part
    test:
    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. 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.[] § 9781(b).
    Commonwealth v. Griffin, 
    65 A.3d 932
    , 935 (Pa. Super. 2013) (some
    citations omitted).
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    J-S92033-16
    Instantly, Appellant timely filed a post-sentence motion in which he
    requested a modification of his sentence, as well as a notice of appeal.
    Additionally, Appellant included a 2119(f) statement in his brief, and raised
    the following issues: (1) “[T]he sentencing scheme was compromised in that
    the sentencing court failed to afford due weight and consideration to
    mitigating factors presented by [A]ppellant[,]” and (2) “[T]he [trial court]
    failed to proffer a legally sufficient statement on the record in support of the
    imposition of a consecutive sentence.” Appellant’s Brief at 4. We must now
    determine whether Appellant has raised a substantial question for our
    review.
    Initially, we find Appellant’s issue concerning the alleged inadequate
    contemporaneous statement offered by the trial court, waived for failure to
    include it in his concise statement of errors complained of on appeal. It is
    well-settled that “[i]ssues not raised in the lower court are waived and
    cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). See also
    Commonwealth v. Poncala, 
    915 A.2d 97
    , 100 (Pa. Super. 2006) (“[A]s a
    general rule, the failure to raise an issue in an ordered Rule 1925(b)
    statement results in the waiver of that issue on appeal.”).
    Our Pennsylvania Rules of Appellate Procedure and our case law
    set forth the well-established requirements for preserving a
    claim for appellate review. “Issues not raised in the lower court
    are waived and cannot be raised for the first time on appeal.”
    Pa.R.A.P. 302(a). This requirement bars an appellant from
    raising “a new and different theory of relief” for the first time on
    -3-
    J-S92033-16
    appeal. Commonwealth v. York, [] 
    465 A.2d 1028
    , 1032 ([Pa.
    Super.] 1983).
    Similarly, our Supreme Court has made it clear that “[a]ny
    issues not raised in a [Rule] 1925(b) statement will be deemed
    waived.” Commonwealth v. Castillo, [] 
    888 A.2d 775
    , 780
    ([Pa.] 2005) (citation and quotation omitted). See also
    Pa.R.A.P.1925(b)(4)(vii) (“Issues not included in the Statement
    ... are waived.”).
    Commonwealth v. Phillips, 
    141 A.3d 512
    , 522 (Pa. Super. 2016).
    Consequently, we now consider Appellant’s remaining arguments.
    Upon review, we find Appellant’s issue that the “[trial] court failed to afford
    due     weight   and   consideration   to    mitigating   factors   presented   by
    [A]ppellant[,]” Appellant’s brief at 4, does not raise a substantial question
    for our review. Commonwealth v. Disalvo, 
    70 A.3d 900
    , 903 (Pa. Super.
    2013) (“[T]his Court has held on numerous occasions that a claim of
    inadequate consideration of mitigating factors does not raise a substantial
    question for our review.”) (quoting Commonwealth v. Downing, 
    990 A.2d 788
    , 794 (Pa. Super. 2010)); Commonwealth v. Zirkle, 
    107 A.3d 127
    , 133
    (Pa. Super. 2014) (“[W]e have held that a claim that a court did not weigh
    the factors as an appellant wishes does not raise a substantial question.”).1
    1
    As recognized by this Court in Commonwealth v. Dodge,
    [w]e are, of course, mindful that it is apparent that this Court’s
    determination of whether an appellant has presented a
    substantial question in various cases has been less than a model
    of clarity and consistency[.]     Compare Commonwealth v.
    Montalvo, [
    641 A.2d 1176
    , 1186 (Pa. Super 1994)] (“allegation
    that the sentencing court ‘failed to consider’ or ‘did not
    -4-
    J-S92033-16
    Moreover, the sentencing court had the benefit of a pre-sentence
    investigation report (PSI). “Where the sentencing court had the benefit of a
    [PSI], we can assume the sentencing court ‘was aware of relevant
    information   regarding   the   defendant’s   character   and   weighed    those
    considerations along with mitigating statutory factors.’” Commonwealth v.
    Griffin, 
    65 A.3d 932
    , 937 (Pa. Super. 2013) (quoting Commonwealth v.
    Devers, 
    546 A.2d 12
    , 18 (Pa. 1988)).
    adequately consider’ facts of record” does not present
    substantial question); Commonwealth v. Rivera, [
    637 A.2d 1015
    , 1016 (Pa. Super. 1994)] (same); Commonwealth v.
    Nixon, 
    718 A.2d 311
    , 315 (Pa. Super. 1998), overruled on other
    grounds by Commonwealth v. Mouzon, [
    812 A.2d 617
     (Pa.
    2002)] (“ordinarily, allegations that a sentencing court ‘failed to
    consider’ or ‘did not adequately consider’ various factors” does
    not raise a substantial question)[.] … with Commonwealth v.
    Boyer, 
    856 A.2d 149
    , 151–152 (Pa. Super. 2004) (finding
    substantial question where defendant argued “that his sentence
    was manifestly excessive and that the court erred by considering
    only the serious nature of the offenses and failing to consider
    mitigating factors such as his age (19) at sentencing, his
    rehabilitative needs, his limited education, his years of drug
    dependency, and his family dysfunction.”); Commonwealth v.
    Perry, 
    883 A.2d 599
    , 602 (Pa. Super. 2005) (failure to consider
    mitigating factors and excessive sentence raised substantial
    question); Commonwealth v. Ventura, 
    975 A.2d 1128
    , 1133
    (Pa. Super. 2009) (“Ventura further asserts that the trial court
    imposed his sentence based solely on the seriousness of the
    offense and failed to consider all relevant factors, which has also
    been found to raise a substantial question.”); Commonwealth
    v. Downing, 
    990 A.2d 788
    , 793 (Pa. Super. 2010) (failure to
    consider rehabilitative needs and the protection of society in
    fashioning a sentence raises a substantial question).
    Dodge, 
    77 A.3d 1263
    , n.8 (Pa. Super. 2013).
    -5-
    J-S92033-16
    Lastly, we acknowledge that Appellant attempts to argue that the trial
    court    erred   in   ordering   his   sentences   to   run   consecutively   versus
    concurrently. Appellant’s Brief at 2. To the extent this issue was properly
    preserved and adequately argued, we find that Appellant has again failed to
    raise a substantial question for our review. It is well-settled that a
    claim of excessive sentence, premised on the trial court’s
    imposition of consecutive sentences [], does not raise a
    substantial question for our review. See Commonwealth v.
    Pass, 
    914 A.2d 442
    , 446 (Pa. Super. 2006) (setting forth long-
    standing precedent that any challenge to the exercise of
    discretion enjoyed by a trial court in imposing a sentence either
    consecutively or concurrently fails to raise a substantial
    question)[.]
    Commonwealth v. Ahmad, 
    961 A.2d 884
    , n.7 (Pa. Super. 2008).
    Accordingly, we affirm the judgment of sentence.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/10/2017
    -6-