J-S40029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

FREEDLE LYNCH

                            Appellant                    No. 3374 EDA 2015


          Appeal from the Judgment of Sentence September 29, 2015
                In the Court of Common Pleas of Bucks County
             Criminal Division at No(s): CP-09-CR-0004415-2015


BEFORE: BOWES, J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.:                                   FILED JULY 06, 2016

        Appellant, Freedle Lynch, appeals from the September 29, 2015

aggregate judgment of sentence of 18 to 36 months’ imprisonment, imposed

following an open guilty plea to retail theft, resisting arrest, and false

identification to law enforcement authorities.1         After careful review, we

affirm.

        The relevant facts as gleaned from the certified record are as follows.

On June 30, 2015, Appellant was arrested following a shoplifting incident at

a Walmart in Levittown, Pennsylvania.          Trial Court Opinion, 1/12/16, at 1.

Walmart employees observed Appellant concealing merchandise in Walmart

shopping bags and then exiting the store without paying for the items. Id.
____________________________________________


1
    18 Pa.C.S.A. §§ 3929(a)(1), 5104, and 4914(a).
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Walmart employees identified themselves and Appellant dropped the

merchandise and fled.          Id.     Police arrived, and after a brief struggle

handcuffed Appellant.          Id. at 2.       The police conducted a search and

discovered Appellant was concealing several Walmart watches on his person.

Id.

       On September 29, 2015, Appellant entered an open guilty plea to the

aforementioned crimes.          Appellant was sentenced that same day to an

aggregate sentence of 18 to 36 months’ imprisonment.2                    Later on

September 29, 2015, Appellant filed a motion to reconsider his sentence.

On October 23, 2015, Appellant’s motion was denied.             On November 6,

2015, Appellant filed a timely notice of appeal.3

       On appeal, Appellant raises the following issue for our review.

              Did the trial court abuse its discretion when it
              sentenced [Appellant] in the aggravated range of the
              guidelines where the [trial] court ignored mitigating
              evidence, such as his extremely poor health, his wife
              sought to speak on his behalf, he accepted
              responsibility by pleading guilty, he exhibited good
              conduct, and the [trial] court otherwise relied on
              inadequate and unproven concerns?

Appellant’s Brief at 4.

____________________________________________


2
  Specifically, Appellant was sentenced to 18 to 36 months’ imprisonment for
retail theft. No further penalty was imposed on the remaining counts.
3
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.




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       Appellant’s sole issue on appeal pertains to the discretionary aspects

of his sentence.4

              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 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. Gonzalez, 109 A.3d 711, 726 (Pa. Super. 2015),

quoting Commonwealth v. Hoch, 936 A.2d 515, 517-518 (Pa. Super.

2007). “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

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)

____________________________________________


4
  Generally, our cases state that “by entering a guilty plea, the defendant
waives his 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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(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 motion for reconsideration of his

sentence, and a timely notice of appeal. Also, Appellant’s brief includes a

Rule 2119(f) statement. Appellant’s Brief at 10-11. We therefore proceed

to address whether Appellant has raised a substantial question for our

review.


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      “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 the trial court “ignored mitigating factors,

and failed to state sufficient reasons that were not already contemplated in

the sentencing recommendation for sentencing outside the standard range.”

Appellant’s Brief at 14.   This Court has held that “a claim that the [trial]

court erred by imposing an aggravated range sentence without consideration

of mitigating circumstances raises a substantial question.” Commonwealth

v. Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003) (en banc) (citation

omitted). We therefore proceed to review the merits of Appellant’s claim.

      At the outset we note that the trial court agrees with Appellant that he

was sentenced in the aggravated range. Trial Court Opinion, 1/12/16, at 3.

At sentencing, the trial court noted that the standard sentencing guideline

range is 6 to 16 months, and 19 months in the aggravated range.           N.T.,

9/29/15, at 17.    In its Rule 1925(a) opinion, the trial court explained its

reasoning for sentencing Appellant in the aggravated range as follows.


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          Contrary to [Appellant]’s assertion, th[e trial c]ourt
          stated its reasons for imposing a sentence in the
          aggravated range of the sentencing guidelines. Prior
          to imposing sentence th[e trial c]ourt stated,

                THE COURT: I take the sentencing guidelines
                into consideration.       I also take into
                consideration the lengthy, lengthy prior
                criminal history with multiple felony offenses
                that have resulted in this [Appellant] being
                incarcerated for substantial periods beginning
                in 1978 and continuing consistently from 1978
                through...

                THE DEFENDANT: Excuse me your [H]onor.

                                       ***

                THE COURT: Based on the extensive and
                repeated criminal history that has only been
                abated as a result of his incarceration and
                removal from the street, [this Court fashioned
                sentence].

          From the above recitation, it is clear that th[e trial
          c]ourt placed adequate reasons on the record for
          imposing an aggravated range sentence. This was
          the [Appellant]’s eighth felony conviction. He has
          been consistently committing criminal offenses for a
          period of thirty-eight years. His criminal activity
          ceases only when incarcerated.           Based on his
          criminal history, it is clear that the factors set forth
          in 42 Pa.C.S. § 9721(b) - i.e. the protection of the
          public, the gravity of the offense as it relates to the
          impact on the victim and the community, the
          defendant’s rehabilitative needs, and the sentencing
          guidelines, warranted the sentence imposed.

                [Appellant]’s assertion that th[e trial c]ourt
          abused its discretion in light of the mitigating
          evidence presented is likewise without merit. The
          evidence [Appellant] relies upon - i.e. his age, his
          family and his health does nothing to mitigate
          [Appellant]’s conduct. He has continued to commit

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              crime throughout his lifetime despite the needs of his
              family. His self-reported medical condition has not
              prevented him from working when he chooses to do
              so. He has disregarded the needs of his family for
              thirty-eight years and cannot now rely on them to
              mitigate his continued criminal conduct.

Trial Court Opinion, 1/12/16, at 3 (footnotes omitted).

      Upon careful review, we conclude the trial court did not abuse its

discretion.    The foregoing clearly demonstrates that the trial court was

aware of, and considered, all of the mitigating circumstances. The trial court

acknowledged it was going beyond the standard sentencing guideline

recommendations by imposing a sentence in the aggravated range and

noted its reasons for doing so on the record.        N.T., 9/29/15, at 13-16.

Accordingly, we conclude that the trial court considered the mitigating

factors but determined they were outweighed by Appellant’s extensive

criminal history and inability to reform his conduct. See Commonwealth v.

Bowen, 975 A.2d 1120, 1127 (Pa. Super. 2009) (holding Appellant’s

“recidivist history” was a permissible factor “in imposing an aggravated-

range sentence[]”). Therefore, the trial court did not abuse its discretion in

sentencing Appellant in this case. See Gonzalez, supra.

      Based on the foregoing, we conclude the trial court did not abuse its

discretion in sentencing Appellant. Therefore, we affirm the September 29,

2015 judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2016




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