Com. v. McClinton, R. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICKY MCCLINTON :
:
Appellant : No. 1960 EDA 2017
Appeal from the Judgment of Sentence, May 24, 2017,
In the Court of Common Pleas of Lehigh County,
Criminal Division at No(s): CP-39-CR-0001147-2017,
CP-39-CR-0005035-2016.
BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED JULY 13, 2018
Ricky McClinton appeals from the judgment of sentence imposed
following his guilty plea to charges of possession with intent to deliver a
controlled substance and resisting arrest.1 He challenges the discretionary
aspect of his sentence. We affirm the judgment of sentence.
The facts underlying McClinton’s sentence are largely irrelevant as the
challenge is to the sentence itself. On April 27, 2017 McClinton, while on
parole, was charged with and pled guilty to the aforementioned crimes, and
the associated plea deal required the sentences for each charge to not exceed
the standard range within the Sentencing Guidelines. He was sentenced to a
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1
35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 5104, respectively.
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term of imprisonment between fourteen and thirty-six months on the charge
of possession with intent to deliver, and six to eighteen months on the charge
of resisting arrest. The sentences were ordered to run consecutively. A
Gagnon II hearing for McClinton’s parole violation on an unrelated previous
case was also held on the same date, and he was remanded to a correctional
facility to serve the balance of the six-month sentence previously imposed.
McClinton would be eligible for parole after serving one-third of the balance of
his total sentence. Trial Court Opinion, 8/1/17, at 1-2.
McClinton challenges the length of the sentence imposed by the trial
court. He claims the sentence is excessive and constitutes an abuse of
discretion. We have long held that there is no absolute right to appeal when
challenging the discretionary aspect of a sentence. Commonwealth v.
Crump, 995 A.3d 1058, 1064 (Pa. Super. 2011). Criminal defendants must
petition for allowance to appeal pursuant to 42 Pa.C.S.A. § 978. As such we
must conduct a four-part analysis before the merits of a discretionary
sentence challenge can be addressed. Commonwealth v. Mourey, 992 A.2d
162, 170 (Pa. Super. 2010). Under this analysis, we must determine: 1)
whether appellant has filed a timely notice of appeal; 2) whether the issue
was properly preserved at sentencing or in a motion to reconsider and modify
sentence; 3) whether the appellant’s brief contained a 2119(f) statement; and
4) whether there is a substantial question that the sentence appealed from is
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inappropriate under the Sentencing Code. Id; Commonwealth v. Hanson,
856 A.2d 1254 (Pa. Super. 2004).
McClinton’s appeal was timely2 and his challenge was preserved in a
post-sentence motion. His brief also contained a statement pursuant to
2119(f) challenging the discretionary aspect of his sentence. See McClinton’s
Brief at 11. McClinton has satisfied the first three parts of the analysis, so we
turn to the fourth part to determine whether he has raised a substantial
question.
Whether a substantial question has been raised regarding discretionary
sentencing is determined on a case-by-case basis. Commonwealth v.
Brown, 741 A.2d 726, 735 (Pa. Super. 1999). A substantial question exists,
and an appeal will be granted, “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.McClinton’s 2119(f) statement reads:
Mr. McClinton is requesting the review of his sentence based
upon his belief that the Trial Court abused its discretion
when it imposed a harsh and excessive punishment contrary
to the fundamental norms of the Sentencing Guidelines. He
believes that the Court failed to consider or to adequately
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2
This appeal was granted although McClinton included both docket numbers
in a single notice of appeal. We will not quash this appeal based on the
violation of this procedure, although each docket number should be
contained in its own notice of appeal. See generally Commonwealth v.
Walker, 2018 WL 2448643 (Pa. June 1, 2018); Pa.R.A.P. 341(a).
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consider appropriate sentencing factors or mitigating factors
as required as part of the individualized sentencing process.
The Court ignored legitimate mitigating factors in
contravention of its duty and as required pursuant to the
sentencing code. Commonwealth v. Raven, 2014 Pa.
Super. 186. 97 A.3d 1244. 1253 (Pa. Super. 2014),
(additional citations omitted) and, Commonwealth v.
Swope, 2015 Pa. Super. 196, 123 A.3d 333 (Pa. Super.
2015.)
McClinton’s Brief at 11.
McClinton’s argument advances a claim that mitigating factors were not
considered by the trial judge during his sentencing and, therefore, the trial
judge abused her discretion in imposing the sentence. This Court has
consistently held that a claim of inadequate consideration of mitigating factors
does not raise a substantial question for appellate review. Commonwealth
v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013); Commonwealth v.
Downing, 990 A.2d 788, 794 (Pa. Super. 2010). Accordingly, we conclude
that McClinton’s argument regarding the trial court’s failure to consider
mitigating factors does not raise a substantial question and is not proper for
appellate review.
Even if a substantial question were raised, McClinton’s underlying
argument is without merit and the trial court’s judgment of sentence would
still be affirmed. Our standard of review of a sentencing challenge is well
settled:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion. In this
context, an abuse of discretion is not shown merely by an
error in judgment. Rather, the appellant must establish, by
reference to the record, that the sentencing court ignored
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or misapplied the law, exercised its judgment for reasons of
partiality, prejudice, bias, or ill-will, or arrived at a
manifestly unreasonable decision.
Commonwealth v. Booze, 953 A.2d 1263, 1278-79 (Pa. Super. 2008). This
Court gives great weight to the decision of the sentencing judge, as the
sentencing judge is in the most advantageous position to weigh various factors
such as “the nature of the crime and the defendant’s displays of remorse,
defiance, or indifference.” Commonwealth v. Fries, 523 A.2d 1134, 1135
(Pa. Super. 1987). The sentencing court must consider the protection of the
public, the gravity of the offense as it relates to the impact on the life of the
victim and on the community, and the rehabilitative needs of the defendant
when considering an appropriate sentence. 42 Pa.C.S.A. §9721(b). This Court
cannot reweigh sentencing factors and impose its own judgment in the place
of the sentencing court. Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007).
Here, McClinton’s sentences for both charges are within the sentencing
guidelines, and as such the sentence is presumed reasonable and the burden
is on him to demonstrate that application of the guidelines was clearly
unreasonable. Commonwealth v. Ventura, 975 A.2d 1128, 1134 (Pa.
Super. 2009). McClinton’s claim that the sentencing court failed to properly
consider mitigating factors cannot defeat this presumption, and his argument
falls short of demonstrating that application of the guidelines was clearly
unreasonable. Additionally, Commonwealth v. Devers states that where a
pre-sentence report exists, as it does in the case sub judice, there is a
presumption that the sentencing court was aware of and adequately
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considered the information, including mitigating factors. 546 A.2d 12 (Pa.
1988). McClinton’s sentence was eminently reasonable in light of record. He
was arrested for the charges at hand less than a month after he was placed
on supervision for a previous drug charge. The sentencing court also indicated
that McClinton was disrespectful, “smug,” and unremorseful. N.T., 5/24/17,
at 8. In light of his attitude and the gravity of the charges, McClinton’s
aggregate sentence of 26 to 54 months is reasonable and well within the
sentencing guidelines. We discern no manifest abuse of discretion,
misapplication of law, or bias in this case.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/13/2018
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