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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                  :
                                        :
RICARDO DONTE GRIFFIN,                  :          No. 1478 EDA 2016
                                        :
                          Appellant     :


             Appeal from the Judgment of Sentence, April 13, 2016,
              in the Court of Common Pleas of Montgomery County
                Criminal Division at No. CP-46-CR-0000784-2015


BEFORE: BOWES, J., DUBOW, J. AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED MAY 15, 2017

        Ricardo Donte Griffin appeals the judgment of sentence in which the

Court of Common Pleas of Bucks County, following an open guilty plea,

sentenced him to serve a term of 11½ to 23 months’ imprisonment for third-

degree felony retail theft1 followed by 2 years’ probation. Appellant was also

ordered to pay restitution of $4,300. We affirm.

        At appellant’s plea hearing, Richard H. Bradbury, Esq., Assistant

District Attorney for the Commonwealth, provided the factual basis for the

charge of retail theft:

             The facts that support the plea, Your Honor, are that
             between December 16th of 2014 and January 15 of
             2015, [appellant] was employed at T.J. Maxx, a store
             located in Abington, Montgomery County.         As a
             cashier, he was responsible for ringing transactions.

1
    18 Pa.C.S.A. § 3929(a)(4).
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            He under-rang several transactions to the tune of
            $4,300.

Notes of testimony, 4/29/15 at 6.     The Commonwealth did not prosecute

appellant on charges of theft by deception-false impression, retail theft,

unlawful use of a computer, and three counts of criminal conspiracy related

to these other charges.2

      At the sentencing hearing on April 13, 2016, the trial court denied

appellant’s request for work release. On April 21, 2016, appellant moved for

reconsideration of his sentence and requested work release so that he could

support his two children and help provide financial support for his

90-year-old grandfather. By order dated May 9, 2016, the trial court denied

appellant’s motion.

      Appellant raises the following issue for this court’s review: “Whether

the trial court erred in denying appellant’s challenge to the discretionary

aspects of sentencing in failing to make him eligible to participate in the

work release program[?]” (Appellant’s brief at 7 (capitalization omitted).)

            [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

2
   18 Pa.C.S.A. §§ 3922(a)(1), 3929(a)(1), 7611(a)(1), and 903(c),
respectively.


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            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.

Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)

(citation omitted).

            Challenges to the discretionary aspects of sentencing
            do not entitle an appellant to review as of right.
            Commonwealth v. Sierra, [752 A.2d 910, 912
            (Pa.Super. 2000)].       An appellant challenging the
            discretionary aspects of his sentence must invoke
            this Court’s jurisdiction by satisfying a four-part test:

                  [W]e 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).

Moury, 992 A.2d at 170 (citation omitted).

      Here, we begin our analysis by determining whether appellant has

complied with the procedural requirements of challenging the discretionary


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aspects of his sentence.    First, appellant timely filed his notice of appeal

pursuant to Pa.R.A.P. 902 and 903. Second, a review of the record reveals

that appellant raised, at both his sentencing hearing and in his motion for

reconsideration, the issue of whether he could participate in a work release

program.    Third, appellant’s brief includes a concise statement of the

reasons relied upon for allowance of appeal with respect to the discretionary

aspects of his sentence in conformance with Pa.R.A.P. 2119(f). Accordingly,

we must determine whether appellant has raised a substantial question.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.”    Commonwealth v. Griffin, 65 A.3d

932, 935 (Pa.Super. 2013), appeal denied, 76 A.3d 538 (Pa. 2013)

(citation omitted).   “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.” Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.Super. 2012),

appeal denied, 63 A.3d 774 (Pa. 2013) (citation omitted).

      Appellant argues that he raises a substantial question in that the trial

court declined to give reasons for denying his request for work release. This

court has previously held that a trial court’s failure to state adequate

reasons on the record for the sentence presents a substantial question for




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this court’s review.   Commonwealth v. Booze, 953 A.2d 1263, 1268

(Pa.Super. 2008).

      Turning to the merits of appellant’s claim that the trial court did not

state its reasons for the denial of the request for work release, this court

does not agree with appellant’s characterization of the trial court’s decision.

The record belies appellant’s claim that the trial court failed to state its

reasons for denying appellant work release. When appellant requested work

release, the trial court responded:

                 Not a chance. You don’t deserve it in my
            mind. That you don’t deserve.

            . . . . [B]y the way, I have to say one other thing.
            Do you who know who else you are impacting upon?
            This is what happens -- why the price of everything
            goes up. Because in the scheme of things, you look
            at an under-ringing crime and a lot of people go,
            well, what is the big deal, so he stole the stuff, he is
            going to pay it back. Yeah, right. But you got
            restitution you got to pay. And I am going to make
            sure that you pay it. That is going to be one of the
            conditions in this courtroom. But everybody kind of
            says, well, in the scheme of things, what is a little
            stealing.

                  You got your kids to worry about, you got your
            grandfather,    who    was     very   honest     and
            straightforward in here today. But you are hurting
            society. You can’t keep coming back, coming back,
            coming back, and skating. It is not happening. The
            buck stops here.

                  All right. Sir, based upon your present case, I
            have considered your age, the information that you
            have given me. And there is no dispute except for
            the sentencing guidelines there. And there has been
            a stipulation to what they really are. The facts as to


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            your personal background and circumstances, they
            are not in dispute. You have admitted your offense.
            You have pled guilty.

                  And after considering these factors, there is
            an undue risk that during the period of
            probation or partial confinement you will
            commit another crime. You are in need of
            correctional treatment, as I have stated. You
            have got to go to -- have commitment to an
            institution for that. A lesser sentence would
            depreciate the seriousness of your crime. I,
            therefore, find that a sentence to total
            confinement is proper.

Notes of testimony, 4/13/16 at 21-22 (emphasis added).

      The trial court clearly and emphatically explained why it denied

appellant’s request for work release.     The trial court listed in detail its

reasons why a sentence of total confinement was proper.            Appellant’s

contention has no merit.

      Appellant also contends that he has raised a substantial question

regarding the trial court’s decision to impose a sentence without adequately

considering rehabilitation and mitigating circumstances. Here, the trial court

imposed a standard range sentence after hearing testimony at the

sentencing hearing, reviewing the record, and reviewing the pre-sentence

investigation report.   “[W]here a sentence is within the standard range of

the guidelines, Pennsylvania law views the sentence as appropriate under

the Sentencing Code.” Moury, 992 A.2d at 171. Therefore, appellant does

not raise a substantial question with respect to whether the trial court




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adequately considered mitigating factors when it imposed a standard range

sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/15/2017




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