J-S29032-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
GLENN R. FOSTER                             :
                                            :
                            Appellant       :
                                            :     No. 1573 WDA 2015

           Appeal from the Judgment of Sentence September 10, 2015
        in the Court of Common Pleas of Mercer County Criminal Division
                        at No(s): CP-43-CR-0001427-2011

BEFORE: BENDER, P.J.E., PANELLA, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JUNE 17, 2016

        Appellant, Glenn R. Foster, appeals from the judgment of sentence

following an open plea of guilty to theft by unlawful taking,1 graded as a

first-degree misdemeanor. Appellant challenges the discretionary aspects of

his sentence. We affirm.

        The facts that led to his plea are unnecessary for our disposition. A

presentence investigation was requested. N.T. Guilty Plea Hr’g, 12/4/12, at

14.      Appellant absconded and was eventually apprehended.          At the

September 10, 2015 sentencing hearing, the court acknowledged reviewing2



*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3921(a).
2
 The court sentenced numerous defendants that day. Prior to sentencing
Appellant, the court informed all of the defendants of their post-sentence
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Appellant’s   file,   presentence   investigation   report,   and    other   relevant

documents.     N.T. Sentencing Hr’g, 9/10/15, at 6.           The court specifically

acknowledged Appellant’s advanced age, medical issues including cancer,

extensive criminal history, which included twenty-three prior convictions,

and failure to appear for his presentence investigation and sentencing

hearing. Id. at 8-10. The court then sentenced Appellant to sixteen to sixty

months’ imprisonment.

      On September 21, 2015, Appellant filed a motion to modify sentence,

which reasoned that his sentence was manifestly excessive and the court

failed to consider his “substantial medical issues.” Mot. to Modify Sentence,

9/21/15, at 1-2.       The court denied it the same day.            Appellant timely

appealed.     On October 13, 2015, the court ordered Appellant to file a

Pa.R.A.P. 1925(b) statement within twenty-one days.             Appellant untimely

filed a Rule 1925(b) statement on November 25, 2015, which challenged his

sentence as excessive. The court filed a Rule 1925(a) decision.

      Appellant raises the following issue on appeal:

         Did the sentence [sic] court abuse its discretion by
         imposing a sentence of not less than sixteen (16) nor more
         than sixty (60) months for the offense of theft by unlawful
         taking, a misdemeanor of the first degree, in that said
         sentence is manifestly excessive in length and not
         specifically tailored to the rehabilitative needs of the
         Appellant or the ends of justice and society?


rights and noted it reviewed every defendant’s file.          N.T. Sentencing Hr’g,
9/10/15, at 2-4, 6.




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Appellant’s Brief at 4.

      In support of his issue, Appellant argues that he pleaded guilty to theft

by unlawful taking, a first-degree misdemeanor. He points out that with an

offense gravity score of three and with his prior record score of five, the

sentencing guidelines called for six to sixteen months’ imprisonment.

Appellant notes that his minimum sentence of sixteen months’ imprisonment

is at the upper end of the sentencing guidelines.         He asserts he has

numerous medical issues and is remorseful. We conclude Appellant is not

due relief.

      As a prefatory matter, we acknowledge that Appellant filed his Rule

1925(b) statement late.     We decline to find waiver, however, and elect to

address his issue. See Commonwealth v. Burton, 973 A.2d 428, 432-33

(Pa. Super. 2009) (en banc) (holding untimely filing of Rule 1925(b)

statement by counsel is per se ineffective assistance of counsel).

      This Court has stated that

              [c]hallenges to the discretionary aspects of
              sentencing do not entitle an appellant to appellate
              review as of right. Prior to reaching the merits of a
              discretionary sentencing issue:

                [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


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              (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).

         Objections to the discretionary aspects of a sentence are
         generally waived if they are not raised at the sentencing
         hearing or raised in a motion to modify the sentence
         imposed at that hearing.

Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa. Super. 2006) (some

citations and punctuation omitted).

         [T]he Rule 2119(f) statement must specify where the
         sentence falls in relation to the sentencing guidelines and
         what particular provision of the Code is violated (e.g., the
         sentence is outside the guidelines and the court did not
         offer any reasons either on the record or in writing, or
         double-counted factors already considered). Similarly, the
         Rule 2119(f) statement must specify what fundamental
         norm the sentence violates and the manner in which it
         violates that norm . . . .

Commonwealth v. Googins, 748 A.2d 721, 727 (Pa. Super. 2000) (en

banc).   “Our inquiry must focus on the reasons for which the appeal is

sought, in contrast to the facts underlying the appeal, which are necessary

only to decide the appeal on the merits.”      Id. at 727.   “A claim that a

sentence is manifestly excessive such that it constitutes too severe a

punishment raises a substantial question.”    Commonwealth v. Kelly, 33

A.3d 638, 640 (Pa. Super. 2011) (citation omitted).

     Instantly, Appellant timely appealed, preserved the issue in the post-

sentence motion, and included a Pa.R.A.P. 2119(f) statement in the brief.




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See Evans, 901 A.2d at 533. We reproduce the entirety of Appellant’s Rule

2119(f) statement below:

            Appellant believes that a substantial question is
         involved concerning the legality of his sentence because
         the sentence [sic] court erred in imposing a sentence of
         not less than sixteen (16) nor more than sixty (60) months
         of the offense theft by unlawful taking, in that the
         sentence was manifestly excessive in length and not
         specifically tailored to the rehabilitative needs of the
         [A]ppellant or the ends of justice and society.

Appellant’s Brief at 8. Appellant failed to indicate where his sentence fell in

the sentencing guidelines.      See Googins, 748 A.2d at 727.           Appellant,

however, has asserted that his sentence was excessive and overly severe

under the circumstances.       We conclude Appellant has raised a substantial

question. See Kelly, 33 A.3d at 640; see also Evans, 901 A.2d at 533-34.

Accordingly, we examine the merits.

      This Court has stated,

         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. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation

omitted).

            In making a reasonableness determination, a court
         should consider four factors:



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            (1) The nature and circumstances of the offense and
            the history and characteristics of the defendant.

            (2) The opportunity of the sentencing court to
            observe the defendant, including any presentence
            investigation.

            (3) The findings upon which the sentence was based.

            (4) The guidelines promulgated by the commission.

         42 Pa.C.S. § 9781(d)(1)-(4). A sentence may be found
         unreasonable if it fails to properly account for these four
         statutory factors.      A sentence may also be found
         unreasonable if the “sentence was imposed without
         express or implicit consideration by the sentencing court of
         the general standards applicable to sentencing.” These
         general standards mandate that a sentencing court impose
         a sentence “consistent with the protection of the public,
         the gravity of the offense as it relates to the impact on the
         life of the victim and on the community, and the
         rehabilitative needs of the defendant.” 42 Pa.C.S. §
         9721(b).

Id. at 190-91 (citation omitted).

      “When a sentencing court has reviewed a presentence investigation

report, we presume that the court properly considered and weighed all

relevant factors in fashioning the defendant’s sentence.” Commonwealth

v. Baker, 72 A.3d 652, 663 (Pa. Super. 2013) (citation omitted).         As our

Supreme Court explained:

         A pre-sentence report constitutes the record and speaks
         for itself. In order to dispel any lingering doubt as to our
         intention of engaging in an effort of legal purification, we
         state clearly that sentencers are under no compulsion to
         employ checklists or any extended or systematic
         definitions of their punishment procedure. Having been
         fully informed by the pre-sentence report, the sentencing
         court’s discretion should not be disturbed.          This is


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         particularly true, we repeat, in those circumstances where
         it can be demonstrated that the judge had any degree of
         awareness of the sentencing considerations, and there we
         will presume also that the weighing process took place in a
         meaningful fashion. It would be foolish, indeed, to take
         the position that if a court is in possession of the facts, it
         will fail to apply them to the case at hand.

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).

      Instantly, the sentencing guidelines recommend a minimum sentence

of between six to sixteen months’ imprisonment given Appellant’s prior

record score and the statutory maximum sentence for a first-degree

misdemeanor is sixty months’ imprisonment.           See 18 Pa.C.S. § 106.

Appellant’s minimum sentence falls within the upper range of the sentencing

guidelines and his maximum sentence is the statutory limit. The trial court

indicated it evaluated the presentence investigation report, Appellant’s

twenty-three prior convictions, cancer, age, and Appellant’s failure to appear

for his presentence investigation and sentencing. N.T. Sentencing Hr’g at 2-

4, 8-10. Thus, we presume the court properly considered and weighed all

the relevant factors in sentencing Appellant. See Devers, 546 A.2d at 18;

Baker, 72 A.3d at 663. We therefore discern no basis to disturb the court’s

sentence, see Sheller, 961 A.2d at 190, and affirm the judgment of

sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/17/2016




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