Com. v. Carson, C. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHEALSE CARSON :
:
Appellant : No. 1014 MDA 2022
Appeal from the Judgment of Sentence Entered February 15, 2022
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0002283-2020
BEFORE: BOWES, J., STABILE, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED: AUGUST 1, 2023
Chealse Carson (“Carson”) appeals from the judgment of sentence
imposed following her conviction for, inter alia, aggravated assault.1 We
affirm.
The relevant factual and procedural history of this case is as follows. A
jury convicted Carson of, among other things, aggravated assault, arising
from an incident in which she stabbed her brother with a knife. See Trial
Court Opinion, 9/15/22, unnumbered at *1. Following Carson’s convictions,
the trial court ordered a pre-sentence investigation and deferred sentencing.
See N.T., 10/27/21, at 178. At the sentencing hearing, the trial court imposed
a standard-range sentence of sixteen to thirty-two months of imprisonment
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1 See 18 Pa.C.S.A. § 2702(a)(4).
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for the aggravated assault conviction. See N.T., 2/15/22, at 8.2 Carson filed
a counseled post-sentence motion, see Post-Sentence Motion, 2/23/22, and,
following her first attorney’s withdrawal, a pro se post-sentence motion. See
Motion to Withdraw, 3/31/22; see also Order, 4/1/22 (granting Carson’s first
attorney’s motion to withdraw); Pro Se Post-Sentence Motion, 6/2/22. The
trial court denied relief, see Order, 6/17/22, and Carson timely appealed.3
Both Carson and the trial court complied with Pa.R.A.P. 1925.4
Carson raises the following issue for our review:
Whether the trial court abused its discretion in sentencing
[Carson]?
Carson’s Brief at 1.
Our standard of review for challenges to the discretionary aspects of
sentencing is well-settled: “[S]entencing is vested in the discretion of the trial
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2 Carson additionally received one year of concurrent probation and a $100
fine for related convictions. See N.T., 2/15/22, at 8-9. These sentences are
not at issue in this appeal.
3 Carson’s notice of appeal is time-stamped July 18, 2022. July 17, 2022 fell
on a Sunday; accordingly, her July 18, 2022 notice of appeal is timely. See
Pa.R.A.P. 903(a) (providing that a notice of appeal shall be filed within thirty
days after entry of the order from which the appeal is taken); see also
Pa.R.Crim.P. 720(A)(2)(a) (requiring a defendant file her notice of appeal
within thirty days of the entry of the order deciding her post-sentence
motion); 1 Pa.C.S.A. § 1908 (excluding weekends from time computations).
4 The trial court appointed Carson’s present counsel on August 3, 2022,
following this Court’s July 27, 2022 order directing the trial court to determine
Carson’s eligibility for court-appointed counsel. See Order, 8/3/22. Carson’s
second attorney filed her Rule 1925(b) statement. See Rule 1925(b)
Statement, 8/9/22.
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court, and will not be disturbed absent a manifest abuse of that discretion[,
which] involves a sentence which was manifestly unreasonable, or which
resulted from partiality, prejudice, bias or ill will. It is more than just an error
in judgment.” Commonwealth v. Brown, 249 A.3d 1206, 1211 (Pa. Super.
2021).
Further, this Court has explained that challenges to the discretionary
aspects of sentencing are not appealable as of right, but, rather,
an appellant challenging the sentencing court’s discretion must
invoke this Court’s jurisdiction by (1) filing a timely notice of
appeal; (2) properly preserving the issue at sentencing or in a
motion to reconsider and modify the sentence; (3) complying with
Pa.R.A.P. 2119(f), which requires a separate section of the brief
setting forth “a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of a
sentence[;]” and (4) presenting a substantial question that the
sentence appealed from is not appropriate under the Sentencing
Code.
Commonwealth v. Padilla-Vargas, 204 A.3d 971, 975 (Pa. Super. 2019)
(citation omitted; brackets in original); see also 42 Pa.C.S.A. § 9781(b).
Regarding the requirement that an appellant raise a “substantial
question,” this Court has explained:
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.
Brown, 249 A.3d at 1211 (internal citation omitted). “The determination of
whether a particular issue raises a substantial question is to be evaluated on
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a case-by-case basis.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004).
This Court will not look beyond the Rule 2119(f) statement in
determining whether an appellant has presented a substantial question, and
bald assertions of sentencing errors do not suffice. See Commonwealth v.
Radecki, 180 A.3d 441, 468 (Pa. Super. 2018); see also Commonwealth
v. Barnes, 167 A.3d 110, 123 (Pa. Super. 2017). We are unable to discern
a substantial question where a Rule 2119(f) statement consists only of
boilerplate language of sentencing requirements without applying those
principles to the challenged sentence. See Commonwealth v. Gibbs, 981
A.2d 274, 283 (Pa. Super. 2009); see also Radecki, 180 A.3d at 468 (stating
that “[i]t is settled that this Court does not accept bald assertions of
sentencing errors”) (internal quotations, citations, and brackets omitted).
Before addressing the merits of Carson’s issues, we must discern
whether she has preserved her challenge to the discretionary aspects of her
sentence and properly invoked this Court’s jurisdiction. We note that Carson’s
Rule 2119(f) statement consists of the following: “The trial court in refusing
to consider all sections of the Sentencing Code is a substantial question
requiring discretionary review. 42 Pa.C.S.A. § 9781(b); Pa.R.A.P. 2119(f).”
Carson’s Brief at 3. Because Carson’s Rule 2119(f) statement contains only
boilerplate statutory citations, we conclude she has failed to raise a substantial
question regarding the discretionary aspects of her sentence. See Gibbs, 981
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A.2d at 283; see also Radecki, 180 A.3d at 468.5 Accordingly, we affirm her
judgment of sentence.
Judgment of sentence affirmed.
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5 The Commonwealth correctly argues Carson has failed to present a
substantial question for the same reason. See Commonwealth’s Brief at 10.
We further note that, even if Carson had raised a substantial question, her
counseled Rule 1925(b) statement mirrors her Rule 2119(f) statement, and
thus it is so vague that Carson would have waived her issue on this basis.
See Rule 1925(b) Statement, 8/9/22; Commonwealth v. Hansley, 24 A.3d
410, 415 (Pa. Super. 2011) (providing that “if a concise statement is too
vague, th[is C]ourt may find waiver”); Trial Court Opinion, 9/15/22,
unnumbered at *2 (concluding, “Because [Carson’s] concise statement fails
to identify the issue she wishes to raise with sufficient specificity, meaningful
review has been impaired and the issue is waived”); Commonwealth’s Brief at
10 (arguing for waiver based on a deficient Rule 1925(b) statement).
Lastly, we observe that the issue Carson ostensibly seeks to have
reviewed is her assertion that the trial court imposed its sentence to punish
her for taking her case to trial. See Carson’s Brief at 9. However, Carson
failed to preserve this issue at sentencing or in either of her post-sentence
motions, and has thereby waived the issue on these grounds as well. See
generally N.T., 2/15/22, at 8-10 (trial court imposing sentence without
objection); Post-Sentence Motion, 2/23/22 (moving for a sentence
modification without specifying any particular basis); Pro Se Post-Sentence
Motion, 6/2/22 (requesting a sentence modification for several reasons, but
not asserting that the trial court punished her for exercising her right to a
trial); Commonwealth’s Brief at 10 (arguing that Carson failed to preserve her
issue below); Padilla-Vargas, 204 A.3d at 975 (requiring that an appellant
preserve her challenge to the discretionary aspects of sentencing at the
sentencing hearing or in a post-sentence motion).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/01/2023
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