J-S81024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

EDWIN WHETSTONE

                            Appellant                   No. 693 EDA 2016


             Appeal from the Judgment of Sentence January 19, 2016
              In the Court of Common Pleas of Montgomery County
               Criminal Division at No(s): CP-46-CR-0003699-2015


BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY MOULTON, J.:                         FILED FEBRUARY 06, 2017

       Edwin Whetstone appeals from the January 19, 2016 judgment of

sentence entered in the Montgomery County of Common Pleas following his

conviction for retail theft.1 We affirm.

       On April 21, 2015, Whetstone was arrested for retail theft of a Giant

Food Store in the amount of $212.00. On August 24, 2015, he entered an

open guilty plea to one count of retail theft, graded as a third-degree felony.

The standard range as set forth in the Pennsylvania Sentencing Guidelines

was 6 to 16 months’ incarceration; however, on January 19, 2016, the trial

court sentenced Whetstone to 36½ months’ to 7 years’ incarceration.

____________________________________________


       *
           Former Justice specially assigned to the Superior Court.
       1
           18 Pa.C.S. § 3929(a)(1).
J-S81024-16



Whetstone filed a motion for modification of sentence, which the trial court

denied on February 5, 2016.

     On March 3, 2016, Whetstone timely filed a notice of appeal.        On

appeal, Whetstone argues that the trial court erred in sentencing him to

36½ months to 7 years without placing on the record adequate reasons for

departing from the guidelines.

     Whetstone challenges the discretionary aspects of his sentence.

“Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super. 2011). Before we may address such a challenge, we first

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
        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) (quoting

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)).

     Whetstone filed a timely notice of appeal and preserved his claim in a

timely post-sentence motion. Whetstone, however, failed to include in his

brief a concise statement of reasons relied upon for allowance of appeal

pursuant to Pennsylvania Rule of Appellate Procedure 2119(f).




                                   -2-
J-S81024-16


       When the Commonwealth raises an objection to appellant’s failure to

include the Rule 2119(f) statement, as it did here, we are precluded from

addressing the merits of appellant’s challenge to the discretionary aspects of

sentencing.2      See Commonwealth v. Batts, 125 A.3d 33, 44 n.9

(Pa.Super. 2015), app. granted, 135 A.3d 176 (Pa. 2016); see also

Commonwealth            v.   Minnich,    662     A.2d   21,   24   (Pa.Super.   1995).

Accordingly, Whetstone has waived his claim.

       Even if Whetstone had included a Rule 2119(f) statement and we were

to find a substantial question,3 we would conclude that the trial court did not

abuse its discretion.

       “Sentencing is a matter vested within the discretion of the trial court

and will not       be    disturbed absent      a manifest abuse       of discretion.”

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010).                      “An

abuse of discretion requires the trial court to have acted with manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
____________________________________________


       2
        Where the Commonwealth has not objected, an appellant’s failure to
include a Rule 2119(f) statement in his or her brief would not be fatal if the
presence of a substantial question can be readily ascertained from the brief.
Commonwealth v. Batts, 125 A.3d 33, 44 n.9 (Pa.Super. 2015), app.
granted, 135 A.3d 176 (Pa. 2016).
       3
         Whetstone’s claim that the trial court failed to provide adequate
reasons for sentencing him outside the Sentencing Guidelines raises a
substantial question. See Commonwealth v. Rodda, 723 A.2d 212, 214
(Pa.Super. 1999) (holding that assertion that trial court failed to sufficiently
state its reasons for imposing sentence outside sentencing guidelines raises
substantial question).



                                           -3-
J-S81024-16


support so as to be clearly erroneous.” Id. “A sentencing court need not

undertake a lengthy discourse for its reasons for imposing a sentence or

specifically reference the statute in question, but the record as a whole must

reflect the sentencing court’s consideration of the facts of the crime and

character of the offender.” Id. at 1283.

      Whetstone claims that the trial court failed to state any aggravating

factors for sentencing him outside the standard range. He argues that the

only reason the trial court provided was Whetstone’s prior record, which

does not constitute an aggravating factor because it already is considered in

the Sentencing Guidelines.

      Whetstone’s argument is without merit.      While a trial court may not

consider, as the sole reason for increasing a sentence, factors already

included within the Sentencing Guidelines, “[t]rial courts are permitted to

use prior conviction history and other factors already included in the

guidelines if[] they are used to supplement other extraneous sentencing

information.”    Commonwealth v. Shugars,            895 A.2d     1270, 1275

(Pa.Super. 2006) (emphasis in original) (quoting Commonwealth v.

Simpson, 829 A.2d 334, 339 (Pa.Super. 2003)).

      Here, in fashioning Whetstone’s sentence, the trial court considered

the protection of the public, Whetstone’s rehabilitative needs, and the

gravity of the offense. At the sentencing hearing, the trial court stated:

         THE COURT:          . . . In the present case, I have
         considered your age, the information about you that I read

                                     -4-
J-S81024-16


          in the Pre-Sentence Investigation [“PSI”]. There has been
          no disagreement with the facts.         They haven’t been
          contested. So I will take it for what it is worth in the PSI.
          And the facts as to your personal background and
          circumstances are not in dispute.

          After considering these factors, I find that there is an
          undue risk that during the period of probation or partial
          confinement, you will commit another crime.

          You are in need of correctional treatment that can be
          provided most effectively by your commitment to an
          institution.  A lesser sentence would depreciate the
          seriousness of your crime.

          I have looked at the standard range of 6 to 16, and I’m
          going to sentence you above the standard range. And I
          want to give you the reasons why. Not the least of which
          is this is your 67th arrest.

          You have had every opportunity to try to deal with your
          drug problem, but you continually, continually commit
          crime. You are a career criminal.

                                   ***
          You have a drug problem. You have been previously
          incarcerated on numerous occasions; am I correct?

          [WHETSTONE]:          Yes, I have.

          THE COURT:           Okay.      I just feel the guideline
          recommendations are inappropriate. Notwithstanding, you
          have a long -- horrific, long record of misdemeanors. And
          I believe there is [sic] some felonies in there; am I
          correct?

          [ADA]:                Several, Your Honor.

          THE COURT:            Several felonies. Yes, several is right.

          Therefore, this is my basis for going outside of the
          guidelines.

N.T., 1/19/16, at 9-10, 12-13. Besides considering Whetstone’s extensive

prior   criminal history, the    trial court considered the      information in



                                      -5-
J-S81024-16


Whetstone’s PSI,4 his continuous drug abuse, and the risk that he would

commit another crime.

       Thus, because Whetstone’s criminal record was not the sole factor in

sentencing him outside the Guidelines, we find no abuse of discretion.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/6/2017




____________________________________________


       4
         “Where pre-sentence reports exist, we . . . presume that the
sentencing judge was aware of relevant information regarding the
defendant’s character and weighed those considerations along with
mitigating statutory factors.” Commonwealth v. Macias, 968 A.2d 773,
778 (Pa.Super. 2009) (quoting Commonwealth v. Devers, 546 A.2d 12,
18 (Pa. 1988)).



                                           -6-
