J-S43003-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    BHARGAVE CHOWDARY PALETI                   :
                                               :
                       Appellant               :      No. 1784 MDA 2018

       Appeal from the Judgment of Sentence Entered September 4, 2018
             In the Court of Common Pleas of Lackawanna County
              Criminal Division at No(s): CP-35-CR-0001383-2017


BEFORE:      GANTMAN, P.J.E., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY GANTMAN, P.J.E.:                       FILED OCTOBER 23, 2019

        Appellant, Bhargave Chowdary Paleti, appeals from the judgment of

sentence entered in the Lackawanna County Court of Common Pleas, following

his negotiated guilty plea to two counts of disorderly conduct.1 We affirm.

        In its opinion, the trial court sets forth most of the relevant facts and

procedural history of this case. Therefore, we have no need to restate them.

Procedurally, we add the court ordered Appellant on October 31, 2018, to file

a concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b).

Appellant complied on November 26, 2018.2


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1   18 Pa.C.S.A. §§ 5503(a)(1) and (a)(4).

2Appellant filed his Rule 1925(b) statement out of time. Nevertheless, this
Court may address the merits of a criminal appeal, where a defendant files an


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* Former Justice specially assigned to the Superior Court.
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       Appellant raises one issue for our review:

          DID THE TRIAL COURT ERR AND ABUSE ITS DISCRETION
          BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE IN THE
          AGGRAVATED RANGE OF THE PENNSYLVANIA SENTENCING
          GUIDELINES, BY FAILING TO CONSIDER MITIGATING
          FACTORS PRESENT IN THE RECORD AND, THEREFORE,
          FAILED TO CONSIDER THE RELEVANT SENTENCING
          CRITERIA OF THE PENNSYLVANIA SENTENCING CODE,
          INCLUDING     THE    PERSONAL     CHARACTERISTICS
          OF…APPELLANT, HIS REHABILITATIVE NEEDS AND THE
          NEED FOR PROTECTION OF THE PUBLIC?

(Appellant’s Brief at 5).

       Appellant argues the sentencing court failed to consider several

mitigating factors, including: his lack of a prior criminal record; his age; his

compliance with conditions of house arrest during this case; his education; his

employment as a physician; and his acceptance of responsibility for the

conduct    underlying     the   convictions.     Appellant   concludes   the   court

unreasonably and/or incorrectly applied the Sentencing Guidelines when it

imposed an aggravated range sentence. As presented, Appellant challenges

the discretionary aspects of his sentence.        See Commonwealth v. Cruz-

Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676

A.2d 1195 (1996) (stating allegation court ignored mitigating factors

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untimely Rule 1925(b) statement, if the trial court had adequate opportunity
and chose to prepare an opinion addressing the issue(s) raised on appeal.
Here, the trial court issued an opinion addressing Appellant’s complaints.
Therefore, we decline to consider Appellant’s issues waived.            See
Commonwealth v. Burton, 973 A.2d 428, 433 (Pa.Super. 2008) (en banc)
(allowing for immediate review under these circumstances).



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challenges discretionary aspects of sentencing).3

         Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910

(Pa.Super. 2000). Prior to reaching the merits of a discretionary sentencing

issue:

           [W]e conduct a four-part analysis to determine: (1) 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 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, 42
           Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted). See

also Pa.R.A.P. 302(a) (explaining general rule that issues not raised before

trial court are waived and cannot be raised for first time on appeal).

         “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.”            Commonwealth v. Anderson, 830



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3  “[W]hile a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of his…sentence other than
to argue that the sentence is illegal or that the sentencing court did not have
jurisdiction, open plea agreements are an exception in which a defendant will
not be precluded from appealing the discretionary aspects of the sentence.”
Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa.Super. 2005). “An
‘open’ plea agreement is one in which there is no negotiated sentence.” Id.
at 363 n.1. Here, Appellant’s plea was “open” as to his sentence, so he can
challenge the discretionary aspects of his sentence.

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A.2d 1013, 1018 (Pa.Super. 2003). 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.” Sierra, supra at 913 (quoting Commonwealth v. Brown, 741

A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567 Pa. 755, 790

A.2d 1013 (2001)). A substantial question exists where an appellant alleges

the sentencing court erred by imposing an aggravated range sentence without

consideration of mitigating circumstances. Commonwealth v. Felmlee, 828

A.2d 1105, 1107 (Pa.Super. 2003) (en banc).

      Our standard of review concerning the discretionary aspects of

sentencing is as follows:

         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. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal

denied, 586 Pa. 723, 890 A.2d 1057 (2005). Pursuant to Section 9721(b),

“the court shall follow the general principle 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


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on the community, and the rehabilitative needs of the defendant.”             42

Pa.C.S.A. § 9721(b).     The record as a whole must reflect the sentencing

court’s consideration of the facts of the case and the defendant’s character.

Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.Super. 2010), appeal

denied, 608 Pa. 661, 13 A.3d 475 (2010). “In particular, the court should

refer to the defendant’s prior criminal record, his age, personal characteristics

and his potential for rehabilitation.” Commonwealth v. Griffin, 804 A.2d 1,

10 (Pa.Super. 2002), appeal denied, 582 Pa. 671, 868 A.2d 1198 (2005), cert

denied, 545 U.S. 1148, 125 S.Ct. 2984, 162 L.Ed.2d 902 (2005).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Michael J.

Barrasse, we conclude Appellant’s issue merits no relief.        The trial court

opinion comprehensively discusses and properly disposes of the question

presented.    (See Trial Court Opinion, filed January 30, 2019, at 11-15)

(finding: in his post-sentence motion, Appellant merely listed mitigating

factors and requested credit for house arrest time and reduction in sentence;

Appellant did not challenge unreasonableness or excessiveness of sentence or

propriety of aggravated range sentence; thus, Appellant failed to preserve

discretionary aspects claim; moreover, even if Appellant had preserved claim,

he is not entitled to relief; court considered Sentencing Guidelines and all

Section 9721(b) sentencing factors; court acquired thorough familiarity with

Appellant, severity of underlying facts, Appellant’s character, escalating


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nature of his actions, and dynamic of Appellant’s and Victim’s marriage; court

considered Victim’s impact statement and Appellant’s voluntary withdrawal

from Lackawanna County Domestic Violence Court Program; record is silent

on whether Appellant sought or completed any further rehabilitation/mental

health counseling; Appellant demonstrated he did not appreciate seriousness

of his conduct; if placed immediately on probation Appellant would present

greater risk of further offenses against Victim). The record supports the trial

court’s rationale. See Hyland, supra. Accordingly, we affirm on the basis of

the trial court opinion.

      Judgment of sentence affirmed.

      Judge Dubow joins this memorandum.

      President Judge Emeritus Stevens concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/23/2019




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