J-A24024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ERIC D. MACAFEE                            :
                                               :
                                               :   No. 3276 EDA 2018

        Appeal from the Judgment of Sentence Entered October 11, 2018
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0007049-2017


BEFORE:      BENDER, P.J.E., DUBOW, J., and COLINS, J.*

MEMORANDUM BY DUBOW, J.:                            FILED NOVEMBER 07, 2019

        Appellant, Eric D. MacAfee, appeals from the October 11, 2018

Judgment of Sentence entered in the Montgomery County Court of Common

Pleas following his guilty plea to one count of Sexual Abuse of Children

(Dissemination of Photographs, Videotapes, Computer Depictions, and

Films).1 On appeal, Appellant challenges the discretionary aspects of his

sentence. After careful review, we affirm.

        The relevant facts and procedural history are as follows. On June 7,

2018, Appellant entered a guilty plea to the above charge. In exchange, the

Commonwealth nolle prossed five counts of Sexual Abuse of Children (Child
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*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. § 6312(c).
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Pornography).2 The trial court ordered a pre-sentence investigation (“PSI”)

report, a probation and parole intervention (“PPI”) evaluation report, sexually

violent predator assessment, and psychosexual risk assessment.

        On October 11, 2018, the trial court sentenced Appellant to an

aggravated range sentence of 30 to 60 months of imprisonment, followed by

5 years of probation. Appellant filed a Post-Sentence Motion, which the trial

court denied.

        Appellant filed a timely Notice of Appeal. Both Appellant and the trial

court complied with Pa.R.A.P. 1925.

        Appellant raises the following issue on appeal: “Did the sentencing court

abuse its discretion when it sentenced [A]ppellant in the aggravated range

based exclusively upon charges that had been nolle prossed while ignoring a

number of mitigating factors?” Appellant’s Br. at 2.

        Appellant challenges the discretionary aspects of his sentence. His Brief

presents two arguments: (1) that the trial court abused its discretion when it

sentenced Appellant in the aggravated range based exclusively upon charges

that had been nolle prossed; and (2) that the trial court abused its discretion

when it sentenced Appellant in the aggravated range while ignoring a number

of mitigating factors.

        Challenges to the discretionary aspects of sentence are not appealable

as of right. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super.

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2   18 Pa.C.S. § 6312(d).

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2015). Rather, an appellant challenging the sentencing court’s discretion must

invoke this Court’s jurisdiction by (1) filing a timely notice of appeal; (2)

properly preserving the issue at sentencing or in a post-sentence motion; (3)

complying with Pa.R.A.P. 2119(f), which requires a separate section of the

brief setting forth a concise statement of the reasons relied upon for allowance

of appeal with respect to the discretionary aspects of a sentence; and (4)

presenting a substantial question that the sentence appealed from is not

appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b). Id.

         To properly preserve an issue challenging the discretionary aspects of

sentencing, a defendant must object and request a remedy at sentencing, or

raise the challenge in a post-sentence motion. Commonwealth v. McAfee,

849 A.2d 270, 275 (Pa. Super. 2004). The Pennsylvania Rules of Criminal

Procedure specifically caution defendants that, when filing post-sentence

motions, “[a]ll requests for relief from the trial court shall be stated with

specificity     and    particularity[.]”     Pa.R.Crim.P.    720(B)(1)(a).    See

Commonwealth v. Tejada, 107 A.3d 788, 798-99 (Pa. Super. 2015) (noting

that the trial court must be given the opportunity to reconsider its sentence

either     at   sentencing   or   in   a    post-sentence   motion).   See,   e.g.,

Commonwealth v. Mann, 820 A.2d 788, 793-94 (Pa. Super. 2003)

(concluding that the defendant waived his discretionary aspects of sentencing

claim regarding the sentencing court’s failure to state the reasons for his

sentence on the record where the defendant’s post-sentence motion only




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argued that his sentence was unduly severe and that the trial court abused its

discretion under the sentencing code).

       Appellant’s first argument is waived. He did not raise the issue as stated

here—that his sentence was based on the nolle prossed charges—at

sentencing. Further, in his Post-Sentence Motion for Reconsideration,

Appellant challenged his sentence as follows: “[i]n sentencing [Appellant],

[t]he [c]ourt failed to consider: [t]he fugitive of justice detainer issued by

Ocean County New Jersey[;] [t]he extreme contrition displayed by [Appellant;

and] Primary Cilia Dysplasia, the medical condition that has plagued

[Appellant] since birth.” Motion for Reconsideration, filed 10/18/18, at 2. His

Post-Sentence Motion did not mention the issue he now raises before us. Thus,

Appellant failed to preserve the issue at sentencing or a post-sentence motion.

Accordingly, the issue is waived.3

       Appellant did, however, properly preserve his second argument—that

the trial court abused its discretion when it sentenced Appellant in the

aggravated range while ignoring a number of mitigating factors—by raising it

in his post-sentence motion and including a statement pursuant to Pa.R.A.P.

2119(f) in his Brief. See Appellant’s Br. at 6. Thus, we proceed to address

whether Appellant presents a substantial question.




____________________________________________


3We note that Appellant raised the issue in his Pa.R.A.P. 1925(b) Statement
and the Court addressed the issue, in the alternative. However, this does not
cure waiver. Mann, 820 A.2d at 794.

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      Whether a substantial question has been raised regarding discretionary

sentencing is determined on a case-by-case basis. Commonwealth v.

Moury, 992 A.2d 162, 170 (Pa. Super. 2010). “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. (citation and quotation omitted).

      Claims that the sentencing court did not adequately consider mitigating

factors generally do not raise a substantial question. Commonwealth v.

Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013). However, a substantial question

is raised where an appellant alleges, such as in this case, that the sentencing

court imposed a sentence in the aggravated range without adequately

considering mitigating circumstances. See Moury, 992 A.2d at 171. Thus, we

proceed to review the merits of Appellant’s contention that his aggravated

range sentence was excessive and an abuse of the court’s discretion.

      Sentencing is a matter vested in the sound discretion of the sentencing

court, and a sentence will not be disturbed on appeal without a manifest abuse

of that discretion. Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa.

Super. 2003). To constitute an abuse of discretion, the sentence must either

exceed the statutory limits or be manifestly excessive; it is not shown merely

by an error in judgment by the court. Id. Rather, the appellant must

demonstrate, by reference to the record, that the sentencing court ignored or




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misapplied the law, exercised its judgment for reasons of partiality, prejudice,

bias or ill will, or arrived at a manifestly unreasonable decision. Id.

      Sentencing in Pennsylvania is individualized, and requires the trial court

to fashion a sentence “that is 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[.]”

Commonwealth v. Baker, 72 A.3d 652, 663 (Pa. Super. 2013) (quoting 42

Pa.C.S. § 9721(b)) (internal quotation marks omitted). “The trial court must

also consider the sentencing guidelines adopted by the Pennsylvania

Commission on Sentencing.” Id. Where the trial court reviewed the PSI

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

relevant factors in fashioning [Appellant’s] sentence.” Id.

      After a careful review of the parties’ arguments and the record, we

conclude that this issue warrants no relief. The trial court detailed its extensive

consideration of Appellant’s PSI report, PPI evaluation, the severity of the

crime, and Appellant’s character in fashioning Appellant’s individualized

sentence. Trial Ct. Op., dated 3/26/19, at 7-8. Based on these factors, it

determined that “[Appellant’s] conduct warrant[ed] a sentence in the

aggravated range[.]” N.T. Sentencing, 10/11/18, at 42. Thus, we conclude

Appellant’s sentence did not violate the fundamental norms underlying the

sentencing process and find no abuse of discretion in the trial court’s sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/19




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