J-S54024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

KENNETH LEE RYAN

                            Appellant                   No. 146 WDA 2017


             Appeal from the Judgment of Sentence January 9, 2017
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0001965-2016


BEFORE: OTT, J., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY MOULTON, J.:                          FILED OCTOBER 24, 2017

       Kenneth Lee Ryan appeals from the January 9, 2017 judgment of

sentence entered in the Erie County Court of Common Pleas following his

jury trial convictions for receiving stolen property and defiant trespass –

notice given by posting.1 We affirm.

       On November 15, 2016, a jury convicted Ryan of the aforementioned

charges. On January 9, 2017, the trial court sentenced Ryan to 2 to 7 years’

incarceration for the receiving stolen property conviction and a consecutive

45 to 90 days’ incarceration for the defiant trespass conviction. Ryan was

also ordered to pay restitution of $350.00 to the victims and $9,007.84 to

____________________________________________


       *
           Former Justice specially assigned to the Superior Court.
       1
           18 Pa.C.S. §§ 3925(a) and 3503(b)(1)(ii), respectively.
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State Farm Insurance.      On January 10, 2017, Ryan filed a motion for

modified and reduced sentence, which the trial court denied on January 11,

2017. On January 17, 2017, Ryan timely filed a notice of appeal.

     Ryan’s sole issue on appeal is “[w]hether [his] sentence is manifestly

excessive, clearly unreasonable, and inconsistent with the objectives of the

Sentencing Code[.]” Ryan’s Br. at 3.

     “Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super. 2011). Before we address such a challenge, we must first

determine:
          (1) whether the appeal is timely; (2) whether [the
          a]ppellant preserved his issue; (3) whether [the
          appellant’s brief includes a concise statement of the
          reasons relied upon for allowance of appeal with respect to
          the discretionary aspects of sentence; and (4) whether the
          concise statement raises a substantial question that the
          sentence is appropriate under the Sentencing Code.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)).

     Ryan filed a timely notice of appeal, preserved his discretionary

aspects of sentencing claim in his post-sentence motion, and included a

concise statement of the reasons relied upon for allowance of appeal

pursuant to Pennsylvania Rule of Appellate Procedure 2119(f).       We must

now determine whether Ryan’s issue raises a substantial question for our

review.



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      We evaluate whether a particular sentencing issue raises a substantial

question on a case-by-case basis.     Commonwealth v. Dunphy, 20 A.3d

1215, 1220 (Pa.Super. 2011).         A substantial question exists where a

defendant raises a “plausible argument that the sentence violates a

provision of the sentencing code or is contrary to the fundamental norms of

the sentencing process.” Commonwealth v. Dodge, 77 A.3d 1263, 1268

(Pa.Super. 2013) (quoting Commonwealth v. Naranjo, 55 A.3d 66, 72

(Pa. Super. 2012)). A claim that the sentence imposed was excessive and

unreasonable, when that sentence is above the aggravated range under the

Sentencing Guidelines, presents a substantial question for our review. See

Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa.Super. 2008) (finding

that appellant’s “contention that the [trial] court exceeded the recommended

range in the Sentencing Guidelines without an adequate basis raises a

substantial question for this Court to review”).

      We conclude that Ryan has raised a substantial question. Based on his

prior record score, Ryan’s sentence on the receiving stolen property

conviction is above the aggravated range. Accordingly, we review the merits

of his claim.

      “Sentencing is a matter vested within the discretion of the trial court

and will not    be   disturbed absent    a manifest abuse    of discretion.”

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010).




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      Ryan argues that “the trial court abused its discretion in sentencing

[him] to such a lengthy period of incarceration.” Ryan’s Br. at 6. According

to Ryan, the trial court failed to consider mitigating factors in his case and

“inappropriately factored in crimes for which [he] had been acquitted” based

on its statements about Ryan “stealing people’s stuff” and “stealing an RV.”

Id. at 7. We disagree.

      A review of the record shows that the trial court considered mitigating

factors in imposing sentence:

            All right. I’m going to do the following.

            First of all, I’ve considered the letters from [Ryan]’s
         family. And I simply offer in observation, [Ryan] has
         children who are going to be damaged by this. The letter
         recites he’s a great father, a hard worker.

            [Ryan] writes to me and says, “I’m going to do parole
         time. I have children.” My view of that is to the extent
         that these people’s lives are turned upside down, the place
         to look for who did that to him is [Ryan] to buy a mirror
         and look there. I’m not going to be moved one iota
         because this may have a terrible effect on your family.
         You did this to them. To the extent there is horror that’s
         going to be visited on them and pain and suffering, the
         only party responsible is you. So that’s my view of those
         requests for leniency.

                                      ...

            So let’s turn to the next thing. My view of [Ryan] is he
         has a [p]rior [r]ecord [s]core of 5. He’s what, forty some
         years of age by now, and he is irredeemably committed to
         criminal enterprises. He’s got a rap sheet that runs one,
         two, three and a half pages. Some of them are thefts,
         other ones show just an unwillingness to conform his
         conduct to the requirements of the law. We tell him he
         can’t drive, the hell with us, he drives anyway. He is going
         to do just what he wants to do. There is nothing in this


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         case that shows the slightest bit of remorse, simply a
         predatory behavior. His view of the world is you toil and
         sweat and earn bread, and I’ll eat it. It’s inconsistent with
         him walking among us.

            The Guidelines here for receiving stolen property. In
         the Court’s observation of [Ryan], the Guidelines are 12 to
         18 months in the standard range. In the aggravated
         range, 21 months.

            Here I’ve considered the Pennsylvania Sentencing Code
         and its various factors. I’ve got the benefit of a pre. I’ve
         considered the letters. I’ve presided over trial. I saw a
         defendant who -- and see a defendant here who has
         absolutely no remorse, and if circumstances permitted,
         would do it again. I don’t believe rehabilitation is possible.
         The goal of sentencing is twofold here, to punish and to
         incapacitate.

            In this case, noting the standard          range of the
         Guidelines, I’m going to go beyond them.      Because in my
         view I’ve considered the enormity of         effects of the
         Guidelines. The punishment isn’t enough      for the wanton
         behavior shown by [Ryan].

N.T., 1/9/17, at 15-17. The trial court’s statements show that it considered

mitigating factors but afforded them no weight. In addition, while Ryan is

correct that the trial court characterized him as “stealing people’s stuff” and

as having stolen an RV, the trial court understood that Ryan had been

convicted of receiving stolen property, not theft by unlawful taking:

             The jury’s verdict here acquitting him of certain charges
         simply reflects, in the Court’s view, not any belief in
         [Ryan]’s innocence, but just the requirement that the
         Commonwealth is required to prove that he was the
         person that actually took this RV off of the lot where it was
         stored. The real[i]ty is it was found in his possession a
         short time later hidden in a rural farm property. There is
         nothing in this verdict that calls into question to the
         slightest degree any of the -- any question about [Ryan]’s
         guilt.


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              I’m not going to sentence him for what he did do,[2] but
           I note that what he’s convicted of, having a stolen RV, is
           part and parcel of the receiving stolen property travel
           trailer he was convicted of in 2012 and closely akin to the
           snowmobile issue in 2000 -- again in 2012. He has a
           history of theft convictions, a trailer, criminal mischief and
           then a whole bunch of driving under -- under suspensions,
           et cetera. DUIs.

Id. at 9-10. The trial court’s statements show that the trial court did not

sentence Ryan for stealing the trailer, but instead sentenced Ryan in the

aggravated range based on Ryan’s conduct, the information contained in his

pre-sentence investigation report, and the other information presented at

the sentencing hearing.3

       Judgment of sentence affirmed.


____________________________________________


       2
       Based on the context, we presume that the trial court misspoke and
meant to say that it would “not sentence Ryan for what he did [not] do.”
       3
        In his brief, Ryan raises an undeveloped, three-sentence challenge to
the restitution imposed by the trial court. He did not raise this issue in his
Pennsylvania Rule of Appellate Procedure 1925(b) statement or his
statement of questions presented in his brief. Ryan appears to argue that
the trial court could not impose restitution because neither of the charges
“for which [he] was convicted . . . bear[] a claim for damages” and, thus,
“the restitution claimed was not a direct result of the crime.” Ryan’s Br. at 7
(quoting 18 Pa.C.S. § 1106(a)).

      Although this issue is non-waivable because it goes to the legality of
sentence, see Commonwealth v. Kinnan, 71 A.3d 983, 986 (Pa.Super.
2013), we conclude that Ryan’s limited argument is meritless. There is no
requirement that the Commonwealth affix “damages” in the criminal
information or even in its case-in-chief. See 18 Pa.C.S. § 1106(c)(4)(i) (“It
shall be the responsibility of the district attorneys of the respective counties
to make a recommendation to the court at or prior to the time of sentencing
as to the amount of restitution to be ordered.”).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/24/2017




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