J-S16039-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

IRA D. HAMMOND,

                            Appellant                No. 1493 WDA 2016


          Appeal from the Judgment of Sentence September 15, 2016
               in the Court of Common Pleas of Fayette County
              Criminal Division at No.: CP-26-CR-0000010-2016


BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                   FILED MAY 5, 2017

        Appellant, Ira D. Hammond, appeals from the judgment of sentence

imposed following his negotiated guilty plea to involuntary manslaughter,1

recklessly endangering another person,2 disregard of traffic lane,3 driving

vehicle at safe speed,4 and careless driving.5    He claims his sentence was

excessive. For the reasons set forth below, we affirm.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 2504(a).
2
    18 Pa.C.S.A. § 2705.
3
    75 Pa.C.S.A. § 3309(1).
4
    75 Pa.C.S.A. § 3361.
5
    75 Pa.C.S.A. § 3714(a).
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      We derive the following recitation of facts from the transcript of the

guilty plea and sentencing hearings, the trial court‟s December 1, 2016

opinion and our independent review of the certified record. On August 29,

2014, while driving on State Route 281 in Markleysburg, Pennsylvania,

Appellant‟s van crossed into the lane of opposing traffic and struck a

motorcycle, resulting in the death of Kelly Oberdick-Palmer and serious

bodily injury to Loren Reibling. (See N.T. Guilty Plea Hearing, 7/29/16, at

4-6; see also N.T. Sentencing, 9/15/16, at 4).         Appellant admitted to

driving over the speed limit. (See N.T. Guilty Plea Hearing, at 7).

      On February 5, 2016, the Commonwealth filed a criminal information

charging Appellant with involuntary manslaughter, recklessly endangering

another person, disregarding a traffic lane, driving vehicle at safe speed, and

careless driving. (See Information, 2/05/16). On July 29, 2016, Appellant

entered a counseled, negotiated guilty plea to all five counts of the

information.   (See N.T. Guilty Plea, at 9).   In return for Appellant‟s guilty

plea, the Commonwealth agreed to a sentence of not less than six nor more

than twenty-three months of intermediate punishment if appropriate and

available.   (See id. at 3-4).    At the hearing, the trial court expressed

uncertainty with respect to house arrest “[b]ecause there is a death of a

human being[.]”     (Id. at 8).    On September 15, 2016, Appellant was

sentenced to a term of not less than six nor more than twenty-three months

of incarceration in Fayette County Prison for the involuntary manslaughter


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charge; no further penalties were imposed for the remaining charges.6 (See

N.T. Sentencing, at 6). Notably, the sentencing court had the benefit of a

pre-sentence investigation (PSI) report. (See id. at 7).

       Appellant timely filed a post-sentence motion for modification of

sentence on September 20, 2016. (See Post-Sentence Motion, 9/20/16, at

unnumbered pages 1-2).           The court denied the motion on September 26,

2016. (See Order, 9/26/16). Appellant timely filed a notice of appeal on

October 4, 2016.7

       On appeal, Appellant raises the following question for our review:

          Whether the Appellant‟s sentence was excessive[?]

(Appellant‟s Brief, at 7).

       Appellant challenges the discretionary aspects of his sentence.      Our

standard of review 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
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6
  We take judicial notice that, according to public records, Appellant was
released from Fayette County Prison upon serving his minimum sentence.
However, Appellant remains on parole and would be subject to re-
incarceration upon violation of imposed conditions.
7
  Pursuant to the court‟s order, Appellant filed a concise statement of errors
complained of on appeal on October 5, 2016. See Pa.R.A.P. 1925(b). The
trial court filed an opinion on December 1, 2016. See Pa.R.A.P. 1925(a).




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        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. Antidormi, 84 A.3d 736, 760 (Pa. Super. 2014), appeal

denied, 95 A.3d 275 (Pa. 2014) (citation omitted).

     A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274

(Pa. Super. 2004), appeal denied, 860 A.2d 122 (Pa. 2004). In situations

where a plea agreement specifies some but not all aspects of the sentence,

this Court will only allow an appeal as to those discretionary aspects of

sentencing   not   agreed   upon   during   the   negotiation   process.   See

Commonwealth v. Brown, 982 A.2d 1017, 1019 (Pa. Super. 2009), appeal

denied, 990 A.2d 726 (Pa. 2010).

     Here, Appellant entered into a negotiated guilty plea that specified the

length of his sentence, but not whether intermediate punishment would be

appropriate and available. Thus, Appellant has retained his right to petition

this Court for allowance of appeal with respect to the discretionary aspects

of his sentence. See id.

     Prior to reaching the merits of a discretionary sentencing issue:


        [We] must engage in a four-part analysis to determine: (1)
        whether the appeal is timely; (2) whether Appellant
        preserved his issue; (3) whether Appellant‟s brief includes
        a concise statement of the reasons relied upon for
        allowance of appeal with respect to the discretionary
        aspects of sentence; and (4) whether the concise

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        statement raises a substantial question that the sentence
        is appropriate under the sentencing code.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013), appeal

denied, 77 A.3d 1258 (Pa. 2013) (citation omitted).

     Instantly, Appellant properly preserved his claim by filing a timely

post-sentence motion and notice of appeal.       Appellant‟s brief does not

contain “a concise statement of the reasons relied upon for allowance of

appeal with respect to the discretionary aspects of a sentence,” however, the

Commonwealth failed to object to the omission.         See Pa.R.A.P. 2119(f).

Therefore, this Court “may ignore the omission and determine if there is a

substantial question that the sentence imposed was not appropriate[.]”

Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004) (citation

omitted).

     “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.”    Commonwealth v. Prisk, 13 A.3d

526, 533 (Pa. Super. 2011) (citation omitted).        Further, “[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. (citations and quotation marks

omitted).

     In the instant matter, Appellant challenges the discretionary aspects of

his sentence as “excessive” and “unreasonable.” (Appellant‟s Brief, at 11).

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However, he fails to reference a provision of the Sentencing Code or a

fundamental norm of the sentencing process which his sentence violates.

See Commonwealth v. Bromley, 862 A.2d 598, 604 (Pa. Super. 2004).

Accordingly, Appellant has failed to raise a substantial question.8

       Even if Appellant had raised a substantial question, the court did not

abuse its discretion in imposing his sentence. The trial court‟s sentence was

within the standard range of the Sentence Guidelines.            In fashioning

Appellant‟s sentence, the court placed on the record its reasoning for the

sentence. Specifically, the court noted that it had taken into consideration:

(1) the nature, seriousness, and gravity of the offense of involuntary

manslaughter; (2) the loss of life sustained by the victim; (3) the pre-

sentence investigation report; (4) Appellant‟s prior record; and (5) his

correctional treatment needs. (See N.T. Sentencing, at 6-7).

       Additionally, the sentencing court had the benefit of a PSI report.

“[W]here the sentencing court imposed a standard-range sentence with the

benefit of a pre-sentence report, we will not consider the sentence

excessive.”     Commonwealth v. Corley, 31 A.3d 293, 298 (Pa. Super.

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8
   Moreover, he fails to develop an argument or discuss any authority in
support of his claim. Therefore, it would be waived for that reason as well.
See, e.g., Commonwealth v. Johnson, 985 A.2d 915 (Pa. 2009)
(“[W]here an appellate brief fails to provide any discussion of a claim with
citation to the relevant authority or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived.”); Pa.R.A.P.
2119(a).



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2011); see also Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super.

2010) (“where a sentence is within the standard range of the guidelines,

Pennsylvania law views the sentence as appropriate under the Sentence

Code.”) (citation omitted). Under such circumstances, “we can assume the

sentencing    court   „was    aware     of   relevant   information   regarding   the

defendant‟s    character     and   weighed     those    considerations   along    with

mitigating    statutory    factors.‟”        Corley,    supra   at    298   (quoting

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

     Appellant failed to raise a substantial question that his sentence was

excessive.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/5/2017




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