Com. v. Workman, R., Jr. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
RICHARD REESE WORKMAN, JR :
:
Appellant : No. 1096 MDA 2021
Appeal from the Judgment of Sentence Entered March 8, 2021
In the Court of Common Pleas of Northumberland County
Criminal Division at CP-49-CR-0001190-2020
BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY MURRAY, J.: FILED MARCH 31, 2022
Richard Reese Workman, Jr. (Appellant) appeals from the judgment of
sentence imposed after he pled guilty to one count each of recklessly
endangering another person, flight to avoid apprehension, possession of a
controlled substance, and possession of a small amount of marijuana.1
Appellant challenges the discretionary aspects of his sentence. We affirm.
Appellant entered an open guilty plea to the above charges on December
14, 2020. The trial court deferred sentencing for the preparation of a
presentence investigation (PSI) report. On March 8, 2021, the trial court
sentenced Appellant to an aggregate 1½ - 4 years in prison, with credit for
203 days of time served (comprised of 1-2 years at Count 5 for recklessly
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2705, 5126(a); 35 P.S. §§ 780-113(a)(16), (a)(31).
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endangering another person; 6 months – 2 years at Count 3 for flight to avoid
prosecution, consecutive to Count 5; 6 – 12 months at Count 7 for possession
of a controlled substance, concurrent to Count 5; and costs and fines at Count
6 for possession of a small amount of marijuana). See N.T., 3/8/21, at 3-4.
Appellant filed a timely post-sentence motion, which the court denied
by operation of law. See Order, 7/13/21; see also Pa.R.Crim.P.
720(B)(3)(b). Appellant timely appealed. Both Appellant and the trial court
have complied with Pennsylvania Rule of Appellate Procedure 1925.
Appellant presents two issues for review:
a. [Did the trial court fail] to adequately weigh the standards set
forth in 42 Pa.C.S.A. § 9721(b) when imposing an excessive
aggregate sentence of eighteen (18) to forty-eight (48)
months’ state imprisonment for a guilty plea to the aforesaid
charge(s)[?]
b. [Did the trial court abuse its discretion when it] improperly
failed without explanation to provide reason(s) for not
considering the least restrictive sentencing alternative(s)
encompassed within the [PSI] Report prepared by the
Northumberland County PA Adult Probation Office in
accordance with 42 Pa.C.S.A. § 9721(b); which recommended
a standard range sentence of three (3) to fourteen (14)
months’ imprisonment for a guilty plea to each of one (1) count
of Recklessly Endangering Another Person under 18 Pa.C.S.A.
§ 2705 and one (1) count of Possession of a Controlled
Substance under 35 P[.S.] § 780-113(a)(16) to be run
concurrent with each other in combination with a probation
level (RS-6) sentence for a guilty plea to one (1) count of Flight
to Avoid Apprehension under 18 Pa.C.S.A. § 5126(a) and a fine
for one (1) count of Possession of a Small Amount of Marijuana
under 35 P[.S.] § 780-113(a)(31), all with [Appellant]
receiving credit of two-hundred-three (203) days for time
served with eligibility for immediate parole in this case[?]
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Appellant’s Brief at 8-9 (emphasis omitted).2
Appellant challenges the discretionary aspects of his sentence.3 “The
right to appellate review of the discretionary aspects of a sentence is not
absolute[.]” Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super.
2014). Rather, where an appellant challenges the discretionary aspects of a
sentence, the appeal should be considered a petition for allowance of appeal.
Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa. Super. 2007).
Pertinently:
An appellant challenging the discretionary aspects of his 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.A. § 9781(b).
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2 The Commonwealth has not filed a reply brief.
3 We have explained:
Generally, upon the entry of a guilty plea, a defendant waives all
claims and defenses other than those sounding in the jurisdiction
of the court, the validity of the plea, and what has been termed
the “legality” of the sentence imposed. However, where a
defendant pleads guilty without any agreement as to sentence,
(i.e. an open plea), the defendant retains the right to petition this
Court for allowance of appeal with respect to the discretionary
aspects of sentencing….
Commonwealth v. Heaster, 171 A.3d 268, 271 (Pa. Super. 2017) (citations
omitted). Because Appellant entered an open plea, his claim challenging the
discretionary aspects of sentencing is not waived.
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Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citing
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006)).
Appellant has timely filed a notice of appeal and preserved his
sentencing claim in a post-sentence motion. See Post-Sentence Motion,
3/12/21. Also, he included in his brief the requisite concise statement of
reasons relied upon for appeal pursuant to Pa.R.A.P. 2119(f). Appellant’s Brief
at 13. We therefore examine whether Appellant has raised a substantial
question.
“We examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists.” Commonwealth v. Ahmad, 961
A.2d 884, 886-87 (Pa. Super. 2008). Allowance of appeal will be permitted
only when the appellate court determines there is a substantial question that
the sentence is not appropriate under the Sentencing Code. Commonwealth
v. Hartle, 894 A.2d 800, 805 (Pa. Super. 2006). “A substantial question
exists where an appellant sets forth a plausible argument that the sentence
violates a particular provision of the Sentencing Code or is contrary to the
fundamental norms underlying the sentencing process.” Id.In his Pa.R.A.P. 2119(f) statement, Appellant asserts the trial court
“improperly failed without explanation to provide reason(s) for not considering
the least restrictive sentencing alternative(s) encompassed within the [PSI]
Report,” which recommended that the sentences run concurrently.
Appellant’s Brief at 13. Further, he argues the court failed to “adequately
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weigh the standards set forth in 42 Pa.C.S.A. [§] 9721(b) when imposing an
excessive aggregate sentence” of 1½ - 4 years in prison. Id. at 15. This
Court has held that a defendant raises a “substantial question by alleging that
the sentencing court did not sufficiently state its reasons for the sentence.”
Commonwealth v. McNabb, 819 A.2d 54, 56 (Pa. Super. 2003). We
therefore review Appellant’s substantive argument.
[T]he proper standard of review when considering whether to
affirm the sentencing court’s determination is an abuse of
discretion .... [A]n abuse of discretion is more than a mere error
of judgment; thus, a sentencing court will not have abused its
discretion unless the record discloses that the judgment exercised
was manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will. In more expansive terms, our Court recently
offered: An abuse of discretion may not be found merely because
an appellate court might have reached a different conclusion, but
requires a result of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so as to be clearly
erroneous.
The rationale behind such broad discretion and the concomitantly
deferential standard of appellate review is that the sentencing
court is in the best position to determine the proper penalty for a
particular offense based upon an evaluation of the individual
circumstances before it.
Moury, 992 A.2d at 169–70 (citation omitted).
A sentencing court is statutorily required to disclose in open court the
reasons for the sentence imposed. See 42 Pa.C.S.A. § 9721(b) (“In every
case in which the court imposes a sentence for a felony or misdemeanor, ...
the court shall make as a part of the record, and disclose in open court at the
time of sentencing, a statement of the reasons for the sentence imposed.”).
However, the court “is not required to parrot the words of the Sentencing
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Code, stating every factor that must be considered under Section 9712(b)[.]”
Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa. Super. 2014). The
sentencing court “can satisfy this disclosure requirement by indicating, on the
record, that he has been informed by a [PSI].” Commonwealth v. Egan,
679 A.2d 237, 239 (Pa. Super. 1996).
Here, our review discloses that although the trial court did not “place on
the record” its reasons for imposing Appellant’s sentence, it referred to the
PSI, stating, “I’m going to sentence [Appellant] according to the
recommendation through the [PSI] … .” N.T., 3/8/21, at 3. Because the court
relied upon the PSI and sentenced Appellant within the guidelines, it did not
abuse its discretion. Egan, supra at 239; see also Commonwealth v.
Fowler, 893 A.2d 758, 766 (Pa. Super. 2006) (rejecting claim that the court
abused its discretion by imposing the sentence without stating adequate
reasons on the record, and holding that “[s]ince the sentencing court had and
considered a [PSI], this fact alone was adequate to support the sentence[.]”).
No relief is due.4
Judgment of sentence affirmed.
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4 We could also deny relief because Appellant’s conclusory argument is
undeveloped and fails to cite legal authority to support his sentencing claim.
See Pa.R.A.P. 2119 (the argument section shall include a “discussion and
citation of authorities as are deemed pertinent”). Although we could dismiss
on this basis, we decline to do so. See Pa.R.A.P. 2101.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/31/2022
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