J-S12008-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    CASPER LESHUN EDWARDS                      :
                                               :   No. 629 MDA 2017
                       Appellant               :

             Appeal from the Judgment of Sentence March 20, 2017
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0001979-2007


BEFORE: LAZARUS, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                                  FILED MAY 04, 2018


        Casper Leshun Edwards appeals from the judgment of sentence entered

in the Court of Common Pleas of Dauphin County. On appeal, Edwards claims

that the sentencing court abused its discretion when it sentenced him to three

to six years’ incarceration in a state correctional facility and a consecutive

term of six years’ probation for a probation violation. We affirm.

        On September 15, 2018, Edwards entered in a plea of nolo contendere

to two counts of aggravated indecent assault1 (person less than 13 years old)

and two counts of unlawful contact with minors/sexual offenses.2 On January



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1   18 Pa.C.S. § 3125 (a)(7).

2   18 Pa.C.S. § 3125 (a)(1).
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22, 2009, the sentencing court sentenced Edwards to two to five years’

incarceration to be served consecutively to a term of five years’ probation.

        The sentencing court also ordered as special conditions that Edwards

have no contact with the victims, undergo and cooperate with a Megan’s Law

Evaluation, follow all rules and conditions for sex offenders, including

restrictions on contact with minors, follow restrictions on computer and phone

use, and successfully complete any recommended sex offender counseling

which may include therapeutic polygraph tests.

        On March 20, 2017, Edwards appeared before the trial court for a

revocation hearing. At the hearing, John Allen Welsh, a psychotherapist with

the Commonwealth Clinical Group, testified that he worked with Edwards for

several years. Welsh testified that in May 2015, Edwards was unsuccessfully

discharged, for the first time, due to six consecutive unexcused absences from

his therapy sessions that were missed for various reasons.      However, the

Dauphin County Office of Probation provided funding for Edwards to return to

treatment on June 11, 2015, and remain in compliance with the sentencing

court’s special conditions.

        In November 2016, Edwards began to miss approximately one-third of

his weekly therapy sessions, and he did not provide a reason for the absences

to his therapists.   Although Edwards claims that he missed the therapy

sessions because he had a stroke in September 2016, he provided no evidence

of medical treatment for the missed sessions in November and December of

2016.     Edwards was unsuccessfully discharged, for the second time, on

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December 20, 2016 due to his absences.           Additionally, Edwards had not

completed a therapeutic polygraph test since June 2015 because of his

absences from therapy. The sentencing court found Edwards to be in violation

of the conditions of his probation, revoked his prior sentences, and

resentenced him to three to six years’ incarceration and a consecutive term

of six years’ of probation.

       On March 30, 2017, Edwards filed a timely motion to modify sentence

pursuant to Pa.R.Crim.P. 720. On April 6, 2017, Edwards filed a timely notice

of appeal.3    On May 1, 2017, Edwards filed a concise statement of errors

complained of on appeal pursuant to Pa.R.C.P. 1925(b).

       Edwards raises one issue for our review:

       Whether the trial court abused its discretion when it denied
       [Edwards’] petition to modify sentence where [Edwards’]
       aggregate sentence of 3 to 6 years’ followed by 6 years’ of state
       probation was excessive in light of lack of other probation
       violations and [Edwards’] rehabilitative needs?

Brief of Appellant, at 6.



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3 Due to Edwards filing a notice of appeal before the sentencing court issued
a decision on his motion to modify sentence, on May 19, 2017, this Court
directed Edwards to show cause why the instant appeal should not be
dismissed as premature pursuant to Pa.R.Crim.P. 720 (no direct appeal may
be filed while post-sentence motion is pending). On May 22, 2017, Edwards
responded to the show-cause order, stating that because his appeal followed
the revocation of probation, the appeal is governed by Pa.R.Crim.P 708(E)
(filing of motion to modify sentence after revocation of probation will not toll
30-day appeal period). On June 2, 2017, this Court vacated the show-cause
order and Edwards’ appeal is considered timely.

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      Edwards challenges the discretionary aspects of his sentence. Before

this court can address such a challenge, Edwards must comply with the

following four-part test:

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

Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011).

      Instantly, Edwards filed a timely notice of appeal and preserved his

issues in a motion to modify sentence. Additionally, Edwards’ brief includes a

statement of reasons relied on for allowance of appeal with respect to the

discretionary aspects of his sentence pursuant to Pa.R.A.P 2119(f).        See

Appellant’s Brief at 9.     We must now determine whether Edwards’ claim

presents a substantial question.

      Whether a challenge to a sentence amounts to a substantial question is

determined on a case-by-case basis. A substantial question exists only when

the appellant advances a plausible argument that the sentencing judge’s

actions were either inconsistent with a specific provision of the Sentencing

Code or were contrary to the fundamental norms which underlie the

sentencing process. Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super.

2011).




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      When imposing a sentence, the sentencing court must follow the general

principles that the sentence imposed should call for “confinement 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.” 42 Pa.C.S.A § 9721(b).

      A claim that the sentencing court failed to consider the defendant’s

rehabilitative needs, and that the sentence was manifestly excessive, does not

raise a substantial question. Commonwealth v. Coolbaugh, 770 A.2d 788,

793 (Pa. Super. 2001).      However, a defendant may raise a substantial

question where he claims that the sentence is manifestly excessive such that

it constitutes too severe a punishment if he articulates the manner in which

the sentence is inconsistent with the Sentencing Code, or is contrary to its

norms. Commonwealth v. Mouzon, 812 A.2d 617, 624-25 (Pa. 2002).

      Additionally,

      In determining whether a substantial question exists, this court
      does not examine the merits of whether the sentence is actually
      excessive.    Rather, we look to whether the appellant has
      forwarded a plausible argument that the sentence, when it is
      within the guideline ranges, is clearly unreasonable.
      Concomitantly, the substantial question determination does not
      require the court to decide the merits of whether the sentence is
      clearly unreasonable.

Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013).

      Here, Edwards asserts that the sentence imposed by the sentencing

court is manifestly excessive such that it constitutes too severe a punishment

in light of his rehabilitative needs.    However, Edwards submitted his Rule


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2119(f) statement without including an argument supporting his claim, and

only set forth pronouncements of conclusions of law. See Commonwealth

v. Kelly, 33 A.3d 683, 640 (Pa. Super. 2011) (where appellant’s brief is devoid

of argument on claim that sentence is manifestly excessive such that it

constitutes    too    severe    punishment,      claim   is   waived).   See   also

Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000), quoting

Commonwealth v. Martin, 727 A.2d 1136, 1143 (Pa. Super. 1999) (when

Rule 2119(f) statement “contains incantations of statutory provisions and

pronouncements of conclusions of law” it is inadequate). Therefore, Edwards

did not raise a substantial question so as to permit review of the discretionary

aspects of his sentence.4

       Judgment of sentence affirmed.




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4 Even if Edwards had raised a substantial question, the sentencing court did
not abuse its discretion when it sentenced Edwards, and therefore, the
judgment of sentence would still be affirmed. The sentencing court is granted
broad discretion, as it is in the best position to determine the proper penalty
for the offense. Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2017).
Additionally, Edwards did not establish that the sentencing court arrived at a
manifestly unreasonable decision because the sentencing court considered his
lack of prior violations and all rehabilitative factors during sentencing. The
sentencing court concluded that Edwards did not take his probation seriously
when he failed to attend four consecutive therapy sessions, and missed thirty-
three percent of his total therapy sessions. N.T. Resentencing, 3/20/17, at
17.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/2018




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