J-S48039-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JUNIUS P. LEISURE,

                            Appellant                 No. 302 MDA 2014


            Appeal from the Judgment of Sentence January 15, 2014
               in the Court of Common Pleas of Lancaster County
               Criminal Division at No.: CP-36-SA-0000320-2013


BEFORE: DONOHUE, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED SEPTEMBER 26, 2014

        Appellant, Junius P. Leisure, appeals from the judgment of sentence

imposed following his guilty plea to violation of driving while operating

privilege is suspended or revoked (DUS), 75 Pa.C.S.A. § 1543(a).1



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    Subsection 1543(a) provides:

                                       Except as provided in subsection
        (b), any person who drives a motor vehicle on any highway or
        trafficway of this Commonwealth after the commencement of a
        suspension, revocation or cancellation of the operating privilege
        and before the operating privilege has been restored is guilty of
        a summary offense and shall, upon conviction, be sentenced to
        pay a fine of $200.

75 Pa.C.S.A. § 1543(a).
J-S48039-14



Specifically, Appellant challenges the discretionary aspects of his sentence.

We affirm.

        Previously, Appellant had pleaded guilty to DUS before a magisterial



of $1,000, plus costs. Appellant filed a summary appeal and on January 15,

2014, the trial court accepted his guilty plea to violation of driving under

suspension.

Consequently, Appellant was subject to a fine of not less than $1,000 and a

term of imprisonment of not less than 30 days but not more than six

months.      See 75 Pa.C.S.A. § 6503(a.1).2      The trial court sentenced

Appellant to a term of incarceration of not less than sixty days nor more



request to give him time to obtain prescriptions for his medication, and to

attend to other business.




____________________________________________


2
    Sub-section 6503(a.1) provides:

              (a.1) Certain repeat offenses.
        sixth or subsequent offense under section 1543(a) shall be
        sentenced to pay a fine of not less than $1,000 and to
        imprisonment for not less than 30 days but not more than six
        months.

75 Pa.C.S.A. § 6503(a.1).




                                           -2-
J-S48039-14



       On February 12, 2014, Appellant filed a motion for reconsideration of

sentence, and on February 14, a timely notice of appeal.3

       Appellant raises one question for our review on appeal:

       Did the trial court abuse its discretion in imposing a minimum
       sixty-day sentence for driving under suspension, which sentence
       was clearly unreasonable under the circumstances of the case?



       Appellant    argues     that   the      minimum   sent

incarceration was unreasonable, because he gave a ride to a friend, (or

fellow employee),4 who was stranded; he has numerous physical and mental

disabilities; and is a source of care for a seriously disabled adult child. (See

Appellant




                                                                Commonwealth v.

Austin, 66 A.3d 798, 807 08 (Pa. Super. 2013), appeal denied, 77 A.3d

1258 (Pa. 2013) (citation omitted).

____________________________________________


3
  The trial court did not rule on the motion to reconsider. Appellant filed a
timely statement of errors on March 12, 2014, and the trial court filed an
Opinion Sur Appeal on April 11, 2014. See Pa.R.A.P. 1925(a), (b).
4
  (See Trial Court Opinion, 4/11/14, at 3 n.2) (noting that Appellant claimed
he was unemployed due to disability, while his counsel explained that the
incident occurred because his client was with his boss and a colleague and
Appellant volunteered to give his colleague a ride home).



                                            -3-
J-S48039-14


            Before [this Court may] reach the merits of [a challenge to
      the discretionary aspects of a sentence], we must engage in a
      four part analysis to determine: (1) whether the appeal is
      timely; (2) whether Appellant preserved his issue; (3) whether

      relied upon for allowance of appeal with respect to the
      discretionary aspects of sentence[, see Pa.R.A.P. 2119(f)]; and
      (4) whether the concise statement raises a substantial question
      that the sentence is appropriate under the sentencing code. . . .
      [I]f the appeal satisfies each of these four requirements, we will
      then proceed to decide the substantive merits of the case.

Id. at 808 (citation omitted).

      Here, Appellant filed a timely notice of appeal, and preserved his claim

that his sentence of confinement is excessive in the trial court. (See Motion

to Reconsider, 2/12/14, at unnumbered page 2, ¶ 6). He has also included

in his appellate brief a separate Rule 2119(f) statement. (See

Brief, at 8-9). Therefore, we proceed to determine whether Appellant has

presented a substantial question that his sentence is not appropriate under

the Sentencing Code. See Austin, supra at 808.

            The determination of what constitutes a substantial
      question must be evaluated on a case-by-case basis.          A
      substantial question exists only when the appellant advances a
                                                            ns 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. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013), appeal

denied, 76 A.3d 538 (Pa. 2013) (citations and quotation marks omitted).

      Here, Appellant, in his Rule 2119(f) statement, first claims that the



                                                         t 9) (referencing 42

                                    -4-
J-S48039-14




sentencing guidelines but the case involves circumstances where the



                    generic claim that a sentence is excessive does not raise a

                                                  Commonwealth v. Christine,

Opinion in Support of Affirmance, 78 A.3d 1, 10 (Pa. Super. 2013) (en banc)

(citing Commonwealth v. Harvard, 64 A.3d 690, 701 (Pa. Super. 2013),

appeal denied, 77 A.3d 636 (Pa. 2013)).

        Additionally, Appellant claims that the trial court focused solely on the

gravity of the offense.       (See

claim, Appellant cites Commonwealth v. Bauer, 604 A.2d 1098, 1101 (Pa.

                                                                                 See

Commonwealth v. Bauer, 618 A.2d 396 (Pa. 1993).



sentenced based solely on the seriousness of the offense and failed to

                                                                   Commonwealth

v.     Macias,   968   A.2d    773,    776     (Pa.   Super.   2009);   (see     also




[our    Supreme]    Court     from    reviewing   most    claims   challenging    the

discretionary aspects of sentencing, it is all the more crucial that defendants

receive at least one opportunity to receive appellate review of sentences that


                                         -5-
J-S48039-14


raise a substantial question unde                          Commonwealth v.

Mouzon, 812 A.2d 617, 626-27

Mouzon, this Court has held that an excessive sentence claim                in

conjunction with an assertion that the court failed to consider mitigating

factors   raises                              Commonwealth v. Raven, 2014

WL 3907103, *6 (Pa. Super. filed August 12, 2014) (citation omitted).



consider the merits of his claim.

                                    merit relief.

      Our standard of review of a sentencing challenge is well-settled:

              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. Glass, 50 A.3d 720, 727 (Pa. Super. 2012), appeal

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

                                                                      that the



statements at the summary appeal hearing.           (See N.T. Summary Appeal,

1/15/14, at 13-14).



                                                    See N.T. Summary Appeal,


                                        -6-
J-S48039-14



1/15/14, at 13). The court also noted that Appellant had an obligation to

everyone else in the Commonwealth not to drive if his operating privileges

are suspended. (See id. at 14). Th

conclusion that Appellant was not confronted with a medical or similar

emergency. (See id. at 2-13; see also Trial Ct. Op., at 5).

        Based on this record, we conclude that the trial court was aware of

               xplanation, his claim of multiple disabilities, and his assertion

that he helps to care for his disabled adult son. We also conclude that the

court gave due consideration to these asserted mitigating factors, (e.g.,

deferring the date to report for sentence), and did not abuse its discretion in



        Finally, we note that while Appellant makes a generalized claim that

                                                                    victims and



12),5

court ignored or misapplied the law, exercised its judgment for reasons of

partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable

             Glass, supra at 727 (citation omitted). Accordingly, we affirm

the judgment of sentence.
____________________________________________


5

on the




                                           -7-
J-S48039-14



     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/2014




                                 -8-
