Com. v. Sierra, K. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KRISTALYNN N. SIERRA
Appellant No. 1568 MDA 2015
Appeal from the Judgment of Sentence June 12, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0002114-2015
BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY MUNDY, J.: FILED JULY 11, 2016
Appellant, Kristalynn N. Sierra, appeals from the June 12, 2015,
aggregate judgment of sentence of one to two years’ imprisonment imposed
after entering an open guilty plea to one count each of escape and criminal
mischief.1 After careful review, we affirm.
The trial court has set forth the relevant factual history as follows.
Appellant had a prior docket and had been
sentenced to a probationary sentence. While in
between residences, Appellant stayed with an ex-
boyfriend. He attempted to rape her after which she
cut off her ankle monitor. She had previously been
accepted into the Mental Health Program, but was
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 5121(a) and 3304(a)(2).
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kicked out of it due to her escape charges and was
revoked on her prior docket.
Appellant was picked up after cutting her ankle
monitor by her Probation Officer, Maria Slabonik.
Slabonik testified that the day she picked up
Appellant was “pure hell.” Per Slabonik, Appellant
fought them in the ambulance; at the hospital she
spit on and punched a security guard. Further,
Appellant seemed to recall doing all of this the
following day, despite being off her medications and
taking synthetic marijuana.
Appellant does suffer from a variety of mental
health disorders, bipolar disorder, ADHD and
schizoaffective disorder. While she was incarcerated
awaiting her revocation, she did participate in
several classes at Dauphin County Prison and was
working towards getting her GED.
She was specifically ordered to be incarcerated
at Muncy for drug, alcohol and most importantly,
mental health counseling.
Trial Court Opinion, 10/26/15, at 2-3 (citations omitted).
On May 26, 2015, Appellant entered an open guilty plea in the trial
court following a plea colloquy. On June 12, 2015, the trial court sentenced
Appellant to an aggregate term of one to two years’ imprisonment. 2 On
June 22, 2015, Appellant filed a timely post-sentence motion, and on August
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2
Appellant’s sentence is consecutive to the revocation sentence imposed at
docket CP-22-CR-6328-2013 which Appellant has not challenged in the
instant appeal.
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13, 2015, Appellant’s motion was denied. On September 14, 2015,
Appellant filed a timely notice of appeal.3
On appeal, Appellant raises the following issue for our review.
Whether the trial court abused its discretion when it
denied Appellant’s post-sentence motion to modify
sentence where the sentence imposed is excessive in
light of the gravity of the offense, the Appellant’s
rehabilitative needs, and what is necessary to
protect the public?
Appellant’s Brief at 5.
Appellant’s sole issue on appeal pertains to the discretionary aspects
of her sentence.4 “There is no absolute right to appeal when challenging the
discretionary aspect of a sentence.” Commonwealth v. Tobin, 89 A.3d
663, 666 (Pa. Super. 2014) (citation omitted). When an appellant makes an
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3
We observe that the 30th day fell on Saturday, September 12, 2015. When
computing the 30-day filing period “[if] the last day of any such period shall
fall on Saturday or Sunday … such day shall be omitted from the
computation.” 1 Pa.C.S.A. § 1908. Therefore, the 30th day for Appellant to
file a timely notice of appeal was on Monday, September 14, 2015. As a
result, we deem her appeal timely filed. We also note that Appellant and the
trial court have complied with Pennsylvania Rule of Appellate Procedure
1925.
4
Generally, our cases state that “by entering a guilty plea, the defendant
waives [her] right to challenge on direct appeal all nonjurisdictional defects
except the legality of the sentence and the validity of the plea.”
Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa. Super. 2013) (citation
omitted), appeal denied, 87 A.3d 319 (Pa. 2014). However, our cases also
hold that the entry of an open guilty plea does not waive the discretionary
aspects of the sentence “because there was no agreement as to the
sentence Appellant would receive.” Commonwealth v. Hill, 66 A.3d 365,
367 (Pa. Super. 2013) (citation omitted).
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argument pertaining to the discretionary aspects of the sentence, this Court
considers such an argument to be a petition for permission to appeal.
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014)
(en banc) (citation omitted), appeal denied, 104 A.3d 1 (Pa. 2014). “[A]n
[a]ppeal is permitted only after this Court determines that there is a
substantial question that the sentence was not appropriate under the
sentencing code.” Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.
Super. 2013) (en banc) (internal quotation marks and citation omitted).
Prior to reaching the merits of a discretionary aspects of sentencing
issue, this Court is required to conduct a four-part analysis to determine
whether a petition for permission to appeal should be granted.
Commonwealth v. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014)
(citation omitted), appeal denied, 99 A.3d 925 (Pa. 2014). Specifically, we
must determine the following.
(1) [W]hether appellant has filed a timely notice of
appeal, Pa.R.A.P. 902, 903; (2) whether the issue
was properly preserved at sentencing or in a motion
to reconsider and modify sentence, 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.A.] § 9781(b).
Id. (citation omitted).
Instantly, Appellant filed a timely post-sentence motion and notice of
appeal. Also, Appellant’s brief includes a Rule 2119(f) statement.
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Appellant’s Brief at 8. We therefore proceed to address whether Appellant
has raised a substantial question for our review.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Edwards, 71 A.3d
323, 330 (Pa. Super. 2013) (citations omitted), appeal denied, 81 A.3d 75
(Pa. 2013). “A substantial question exists only when the appellant advances
a colorable argument that the sentencing judge’s actions were either: (1)
inconsistent with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.” Id.
(citations omitted).
Instantly, Appellant asserts her sentence is “excessive and
unreasonable in light of the gravity of the offense, Appellant’s rehabilitative
needs, and what is necessary to protect the public.” Appellant’s Brief at 14.
Specifically, Appellant acknowledges her drug and alcohol abuse and asserts
she would be able to continue the programs she has utilized to try and
rehabilitate herself. Id. Appellant also argues that she “was able to
maintain a job while she was on probation, and allowing her to continue her
employment, as well as finish her GED, and … [to] take care of her mother
will make Appellant a more productive member of society.” Id. at 15.
This Court has long recognized that “an allegation that a sentencing
court … did not adequately consider certain factors does not raise a
substantial question that the sentence was inappropriate.” Commonwealth
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v. Johnson, 961 A.2d 877, 880 (Pa. Super. 2008), appeal denied, 968 A.2d
1280 (Pa. 2009); see also Commonwealth v. Bullock, 868 A.2d 516, 529
(Pa. Super. 2005), affirmed, 913 A.2d 207 (Pa. 2006), cert. denied, 550
U.S. 941 (2007). This Court has held that an argument that the trial court
failed to consider certain mitigating factors in favor of a lesser sentence does
not present a substantial question appropriate for our review.
Commonwealth v. Ratushny, 17 A.3d 1269, 1273 (Pa. Super. 2011);
accord Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010).
Consequently, Appellant has failed to a raise a substantial question for our
review. See Edwards, supra.
Based on the foregoing, we conclude the trial court did not abuse its
discretion in sentencing Appellant. Therefore, we affirm the June 12, 2015
judgment of sentence.
Judgment of sentence affirmed.
Judge Dubow joins the memorandum.
President Judge Emeritus Stevens concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/11/2016
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