J-S42022-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CHRISTOPHER ZANE GRAEFF

                            Appellant                No. 1784 WDA 2013


           Appeal from the Judgment of Sentence October 17, 2013
              In the Court of Common Pleas of Bedford County
             Criminal Division at No(s): CP-05-CR-0000404-2013


BEFORE: PANELLA, J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                          FILED AUGUST 04, 2014

        Appellant Christopher Graeff (“Appellant”) challenges as excessive the

trial court’s judgment of sentence following his guilty plea to one count of

simple assault,1 a misdemeanor of the second degree. After careful review,

we affirm.

        On September 16, 2013, Appellant pled guilty to a simple assault that

he perpetrated while intoxicated on August 12, 2013. See generally N.T.

9/9/2013.      On October 15, 2013, the trial court imposed a five (5) to

twenty-three (23) month sentence of incarceration, and a $2,000.00 fine.2

N.T. 10/15/2013, p. 22.         This sentence represented an upward deviation
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1
    18 Pa.C.S. § 2701(a).
2
  Misdemeanors of the second degree are punishable by up to two years of
imprisonment and fines of up to $5,000.00. See 18 Pa.C.S. §§ 1101, 1104.
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from Appellant’s sentencing guidelines, which gave a standard range of RS-

1, plus or minus 3.         The trial court further imposed intensive alcohol

supervision during Appellant’s parole period, including a requirement that

Appellant wear an alcohol-detection anklet. Id.

      On appeal, Appellant presents the following issues for our review:

      I.      WHETHER THE COURT ERRED AND ABUSED ITS
              DISCRETION WHEN IT IMPOSED       AN EXCESSIVE
              SENTENCE OF NOT LESS THAN FIVE (5) MONTHS NOR
              MORE THAN TWENTY-THREE (23) MONTHS AS THE
              APPELLANT’S PRIOR RECORD SCORE WAS ZERO (0)
              MAKING THE STANDARD RANGE RS TO ONE (1) PLUS OR
              MINUS THREE (3)?

      II.     WHETHER THE COURT ERRED AND ABUSED ITS
              DISCRETION WHEN IT REQUIRED APPELLANT TO WEAR A
              SCRAM BRACELET FOR THE ENTIRE PAROLE PERIOD AND
              PAY THE COST OF SAME?

Appellant’s Brief at 7.

      These    claims     raise   challenges   to   the   discretionary   aspects   of

Appellant’s sentence. “Challenges to the discretionary aspects of sentencing

do not entitle a petitioner to review as of right.” Commonwealth v. Allen,

24 A.3d 1058, 1064 (Pa.Super.2011). Before this Court can address such a

discretionary challenge, an appellant must comply with the following

requirements:

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test: (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)

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       whether there is a substantial question that the sentence
       appealed from is not appropriate under the Sentencing Code.

Allen, 24 A.3d at 1064.

       Appellant in the present case filed a timely notice of appeal, and

preserved his issues in a post-sentence motion.         Further, Appellant’s brief

includes a concise statement of the reasons relied upon for allowance of

appeal pursuant to Pa.R.A.P. 2119(f).             See Appellant Brief, p. 11.

Accordingly, we now determine whether Appellant has raised substantial

questions for review and, if so, proceed to a discussion of the merits of the

claims.   Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki, 522 A.2d 17

(Pa.1987).

       “A substantial question will be found where the defendant advances 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     which   underlie   the   sentencing    process.”    Commonwealth        v.

Christine, 78 A.3d 1, 10 (Pa.Super.2013) (internal citations omitted); see

also 42 Pa.C.S. § 9781(b). “We determine whether a particular case raises a

substantial question on a case-by-case basis.”          Id.       A bald or generic

assertion that a sentence is excessive does not, by itself, raise a substantial

question justifying this Court’s review of the merits of the underlying claim.

Id.;    see   also   Commonwealth        v.     Harvard,     64    A.3d   690,   701

(Pa.Super.2013).     Additionally, “an allegation that the sentencing court

failed to consider mitigating factors generally does not raise a substantial



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question for [appellate] review.” Commonwealth v. Rhoades, 8 A.3d 912,

918-919 (Pa.Super.2010); see also Commonwealth v. Moury, 992 A.2d

162 (Pa.Super.2010); Commonwealth v. Hanson, 856 A.2d 1254, 1257-

58 (Pa.Super.2004) (defendant’s contention that sentencing court failed to

consider mitigating factors in favor of lesser sentence did not present a

substantial question that the sentence was not appropriate under the

Sentencing Code); Commonwealth v. Urrutia, 653 A.2d 706, 710

(Pa.Super.1995) (“An allegation that a sentencing court ‘failed to consider’

or ‘did not adequately consider’ certain factors does not raise a substantial

question that the sentence was inappropriate.”).     However, “a substantial

question exists when a sentencing court imposed a sentence in the

aggravated range without considering mitigating factors.” Rhoades, 8 A.3d

at 919 n.12 (citing Commonwealth v. Felmlee, 828 A.2d 1105, 1107

(Pa.Super.2003) (emphasis in original).

      In his Pa.R.A.P. 2119(f) statement (“Rule 2119(f) statement”),

Appellant alleges that the sentence imposed for simple assault “was so

manifestly excessive as to constitute too severe a punishment.” Appellant’s

Brief, p. 11. In support of this claim, the Rule 2119(f) statement asserts:

      1. Appellant’s conduct did not demonstrate that he was likely to
         commit a new offense if not incarcerated;

      2. A sentence of total confinement was not appropriate given the
         facts of the instant matters;

      3. A sentence of total confinement was not necessary to
         vindicate the court’s authority;



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       4. Appellant cooperated with the Commonwealth as stated in
          testimony presented before the [c]ourt;

       5. Appellant complied with the conditions of his               bail
          demonstrating a modification of his past behavior; and

       6. Appellant demonstrated a reduced need for rehabilitation as
          he has been in recovery in a longstanding issue with
          controlled substances.

Appellant’s Brief, p. 11.          These assertions effectively allege that the

sentencing court erred by failing to properly consider alleged mitigating

factors and Appellant’s rehabilitative needs in fashioning a sentence that

deviated upward from the standard range of sentencing guidelines. As such,

the Rule 2119(f) statement raises a substantial question for our review.3

See Rhoades, supra.

       Our standard of review for discretionary aspects of sentencing claims

is as follows:

             If this Court grants appeal and reviews the sentence, the
       standard of review is well-settled: sentencing is vested in the
       discretion of the trial court, and will not be disturbed absent a
       manifest abuse of that discretion.        An abuse of discretion
       involves a sentence which was manifestly unreasonable, or
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3
  We further note that Appellant’s Brief makes the additional, separate
argument that the trial court failed to adequately explain its upward
deviation from the standard range of the sentencing guidelines.         See
Appellant’s Brief, pp. 12-16. While not expressly included in the Rule
2119(f) statement, we note that this separate claim is interrelated with the
mitigating factors issue contained in the statement, and could have provided
an independent substantial question for our review. See Commonwealth
v. Monohan, 860 A.2d 180, 182 (Pa.Super.2004) (a substantial question
exists where the sentencing court failed to provide sufficient reasons for
imposing a sentence outside of the guidelines).



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      which resulted from partiality, prejudice, bias or ill will.         It is
      more than just an error in judgment.

Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 (Pa.Super.2006)

(citations omitted).

      Our review of the record reveals that the lower court did not abuse its

discretion. Instead, the trial court imposed a sentence that was consistent

with the protection of the public, took into account the gravity of the offense

as it related to the impact on the life of the victim and on the community,

and considered the Appellant’s rehabilitative needs, as required by 42

Pa.C.S. § 9721(b). See 1925(a) Opinion, pp. 1-2; N.T. 10/15/2013, pp. 18-

23.

      Appellant’s claim that the trial court improperly and excessively

sentenced him beyond the sentencing guidelines’ standard range fails on the

merits. In deviating upward from the sentencing guidelines, the trial court

reviewed a pre-sentence investigation report, the sentencing guidelines, and

listened   to   the    victim’s    statement,   Appellant’s   statement,    and    the

statements of counsel.            See N.T. 10/15/2013, pp. 2-18.           The court

explained its upward deviation by stating that it considered Appellant’s

several recent alcohol-related convictions and domestic abuse incidents that

did not otherwise factor into Appellant’s prior record score and which created

recidivism concerns, the court’s serious concern with Appellant’s conduct in

staring down the victim during the plea hearing, the extent of the victim’s

injuries, and Appellant’s failure to take genuine responsibility for his actions.



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Id. at 20-22. These reasons adequately explained the trial court’s upward

deviation from the sentencing guidelines.

      Appellant’s second claim, that the trial court abused its discretion in

ordering    that   the    Appellant   must   wear   an    alcohol-detecting   anklet

throughout his parole period, also lacks merit.          Initially, the Rule 2119()

statement did not include this claim, expressly or otherwise, and we can find

it waived for this reason.      See Commonwealth v. Gibbs, 981 A.2d 274,

283 (Pa.Super.2009) (an inadequate Rule 2119(f) statement may constitute

waiver of claims).       Further, the claim fails on the merits.    When imposing

sentence, the Sentencing Code allows trial courts to include release

conditions “as may be reasonably related to the sentence.”            42 Pa.C.S. §

9755(d).     In addition to multiple specific enumerated conditions, the

Sentencing Code allows          the   court to   impose    “any    other   conditions

reasonably related to the rehabilitation of the defendant and not unduly

restrictive of his liberty or incompatible with his freedom of conscience.” 42

Pa.C.S. § 9754(c)(13).

      Here, the trial court coupled its requirement that Appellant wear an

alcohol-detecting anklet throughout the parole period with the requirement

that he complete out-patient drug and alcohol counseling. N.T. 10/15/2013.

P. 22.     While conceding that the requirement that he wear an alcohol-

detection anklet during the period of his parole does not restrict his liberty,

Appellant argues that the imposition of such a condition is an excessive

aspect of his sentence because it is not reasonably related to his

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rehabilitation and would cause undue financial hardship.      See Appellant’s

Brief, pp. 17-18. Appellant’s argument is unconvincing. Given Appellant’s

consistent involvement with alcohol and controlled substances, the alcohol-

detection anklet requirement, like the required drug and alcohol counseling,4

is reasonably related to Appellant’s rehabilitation.

       Given the foregoing, Appellant’s claims regarding the discretionary

aspects of his sentence fail on the merits.        Accordingly, we affirm the

judgment of sentence.

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/4/2014




____________________________________________


4
  We note Appellant has not challenged the requirement that he attend a
program of drug and alcohol counseling.



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