J-S54023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

STEPHEN CLAYTON EDINGER

                            Appellant              No. 1874 WDA 2015


           Appeal from the Judgment of Sentence October 26, 2015
                 In the Court of Common Pleas of Erie County
             Criminal Division at No(s): CP-25-CR-0000997-2015


BEFORE: BENDER, P.J.E., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                FILED JULY 26, 2016

        Stephen Clayton Edinger appeals from the judgment of sentence

entered October 26, 2015 in the Erie County Court of Common Pleas, made

final by denial of post-sentence motions on October 28, 2015. The trial court

sentenced Edinger to a term of 6 to 12 years’ imprisonment with 237 days

credit, followed by 1 year of probation after his open guilty plea to

manufacturing a controlled substance and possession of drug paraphernalia.1

On appeal, Edinger argues the trial court imposed an excessive and

unreasonable sentence in failing to consider mitigating circumstances. For

the reasons set forth below, we affirm the judgment of sentence.


____________________________________________


1
    35 Pa.C.S. §§ 780-113(a)(30) and 780-113(a)(32), respectively.
J-S54023-16




       The trial court described the procedural history as follows:2


       On September 8, 2015, [Edinger] entered a guilty plea to
       possession with intent to deliver (“PWID”) and possession of
       drug paraphernalia, as part of a negotiated plea agreement. The
       remaining counts were nolle prossed. On October 26, 2015,
       [Edinger] was sentenced to the following:

          Count 5: 72 months to 144 months of incarceration with
          237 days credit, concurrent with any sentence(s) [Edinger]
          is currently serving; and

          Count 6: 12 months of state supervised probation,
          consecutive to Count 5 above.

       On October 28, 2015 [Edinger] filed a Motion for
       Reconsideration/Modification of Sentence, which was denied by
       Order dated October 28, 2015.

       On November 25, 2015, [Edinger] filed a Notice of Appeal and
       Concise Statement of Matters Complained of on Appeal, in which
       he argued his sentence is “manifestly excessive, clearly
       unreasonable and inconsistent with the objectives of the
       Sentencing Code,” pointing to various mitigating factors.

Trial Court Opinion, 2/13/2016 at 1 (footnote omitted).3

       The only issue in Edinger’s brief represents a challenge to the

discretionary     aspects    of   Edinger’s    sentence.4   “A   challenge   to   the
____________________________________________


2
  Edinger’s arrest stems from his own 9-1-1 call on January 24, 2015. Police
responded to the call and arrived on the scene, where Edinger was
incoherent. The location appeared to be a methamphetamine lab. N.T.,
8/17/2015 at 20-23.
3
  Edinger filed a concise statement of matters complained of on appeal
pursuant to Pa.R.A.P. 1925(b) on November 25, 2015.




                                           -2-
J-S54023-16




discretionary aspects of a sentence must be considered a petition for

permission to appeal, as the right to pursue such a claim is not absolute.”

Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa. Super. 2007 (citation

omitted). In order to reach the merits of such a claim, this Court must

determine:

      (1) Whether appellant has filed a timely notice of appeal; (2)
      whether the issue was properly preserved at sentencing or in a
      motion to reconsider and modify sentence; (3) whether
      appellant’s brief has a fatal defect; and (4) whether there is a
      substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code.

Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011)

(footnotes omitted). Here, Edinger filed a timely post-sentence motion

challenging the discretionary aspects of his sentence, as well as a timely

notice of appeal. Edinger’s Brief includes the requisite statement, pursuant

to Pa.R.A.P. 2119(f), setting forth the reasons relied upon for allowance of

appeal. Therefore, we may proceed to determine whether Edinger has set

forth a substantial question that his sentence is inappropriate under the

Sentencing Code. See Commonwealth v. Titus, 816 A.2d 251, 255 (Pa.

Super. 2003).

                       _______________________
(Footnote Continued)
4
 “Sentencing is a matter vested in the sound discretion of the judge, and
will not be disturbed on appeal absent a manifest abuse of discretion.”
Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation
omitted), appeal denied, 980 A.2d 607 (Pa. 2009).



                                            -3-
J-S54023-16




      Instantly, the trial court asserts Edinger’s claim that the trial court

failed to consider mitigating factors is insufficient to state a substantial

question. See Commonwealth v. McNabb, 819 A.2d 54, 57 (Pa. Super.

2003). However, we recognize a substantial question exists when an

appellant sets forth a “colorable argument that the sentence imposed is

either inconsistent with a specific provision of the Sentencing Code or is

contrary to the fundamental norms underlying the sentencing process.”

Commonwealth v. Bentura, 975 A.2d 1128, 1133 (Pa. Super. 2009).

Pursuant to Commonwealth v. Samuel, 102 A.3d 1001 (Pa. Super. 2014)

(a claim of an excessive sentence due to failure to consider mitigating

factors raises a substantial question), we find Edinger has raised a

substantial question.

      Although Edinger has raised a substantial question, our review

demonstrates his claims are not supported by the certified record. Edinger

argues that he deserves a mitigated sentence because he manufactured the

drugs for himself and clearly did not intend to distribute them, and because

his prior sexual offenses should have minimal bearing on this drug-related

case. Edinger’s Brief at 4-6. “[Edinger] argues his prior record score (“PRS”)

of five is due in large part to ‘several Statutory Sexual Assault convictions

from 2008 and 2009’ unrelated to the current offense and his prior

conviction for [possession with intent to distribute] was a result of a severe

drug addiction.” Trial Court Opinion, 1/13/2016 at 4. Implicitly, Edinger

                                    -4-
J-S54023-16




argues that because the crimes he has plead guilty to here are not sexual in

nature, his previous sexual offenses should have a minimal impact on his

sentence. Edinger claims neither the nature of his previous convictions nor

the personal nature of his drug activity were considered by the trial court in

its ultimate judgment of sentence.5 Edinger’s Brief at 5-6.

        With respect to his prior sexual offenses, the Pennsylvania Sentencing

Guideline used by the trial court is comprised of a Prior Record Score and

Offense Gravity Score. The Prior Record Score is based on the number of

prior    convictions    and    whether         past   convictions   were   felonies   or

misdemeanors, but does not distinguish between past convictions as drug,

sexual, or violent offenses. The Offense Gravity Score, however, does take

into account the nature of the crime. The Pennsylvania Sentencing Guideline

matrix does not require the trial court to take into consideration the natures

of Edinger’s previous offenses. Additionally, no other authority mandates this

consideration. Nevertheless, the trial court specifically stated to Edinger:

        Then I have to balance [your young age and guilty plea] with
        your criminal record, which starts in the adult system in 2003.
        And you have a variety of convictions at Clarion County,
        Armstrong County, Allegheny County, and Erie County, and
        those include separate sexual assault, statutory sexual assaults,
        convictions involving minors[,] and I recognize this is – the
____________________________________________


5
  We note here that Edinger’s sentence was at the bottom end of the
standard range for his Offense Gravity Score of 11 and Prior Record Score of
5, which is 6 to 7 ½ years’ imprisonment. See 204 Pa.Code § 303.16(a).



                                           -5-
J-S54023-16




      present offense is not of sexual nature. But it is concerning
      that you had the possession with intent to deliver heroin
      conviction for which you were sentenced in May of 2012, and I’m
      not sure what credit you got on that, but it appears you may
      have been on supervision at that sentence when [you]
      committed this offense.

N.T., 10/26/2015 at 10 (emphasis added).

      With respect to Edinger’s personal use of the drugs he manufactured,

the trial court told Edinger at his sentencing, “[h]eroin kills people every day

of the week somewhere, and you’re not too far removed from being

sentenced on that and now you’re involved in the manufacture of another

deadly substance which puts yourself and other people at risk.” Id. at 11.

In further explaining its decision, the trial court stated:

      [Edinger]’s argument that a mitigated range sentence is
      warranted because he was manufacturing the methamphetamine
      for his own personal use to support his addiction is also
      unpersuasive. While the Court accepts [Edinger]’s addictive
      conduct, which may serve to explain [Edinger]’s behavior, it
      does not justify it. The manufacturing of methamphetamine is a
      hazardous, dangerous undertaking. It does not just endanger
      the person making the drugs, but the surrounding area and the
      community at large.

Trial Court Opinion, 1/13/2016 at 4. Accordingly, the certified record belies

Edinger’s claim that the trial court failed to consider appropriate mitigating

factors.




                                      -6-
J-S54023-16




       Our review of the record demonstrates the trial court fulfilled its duty

in considering all the proper factors, and did not abuse its discretion in

sentencing Edinger to 6 to 12 years’ imprisonment.6

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/2016




____________________________________________


6
  Our review of the certified record leads us to express our concern about
the sufficiency of the guilty plea colloquy, which addressed only one of six
questions listed in the Comment to Pa.R.Crim.P. 590 (“Is the defendant
aware of the permissible range of sentences and/or fines for the offenses
charged?”). The trial court also incorrectly informed Edinger that his
maximum sentence for Count 5 was 10 years’ imprisonment pursuant to 35
Pa.C.S. § 780-113(f)(1.1). N.T., 9/8/2015 at 8. However, in accordance with
§ 780-115(a), Edinger’s actual maximum sentence was 20 years’
imprisonment. We remind the trial court, prosecution, and defense counsel
of the importance of having a complete colloquy and record thereof. The fact
that Edinger has not complained of the completeness of the guilty plea
colloquy does not alleviate our concern.



                                           -7-
