J-S05011-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DESIREE L. TIPPING                         :
                                               :
                       Appellant               :   No. 891 WDA 2018

             Appeal from the Judgment of Sentence March 21, 2018
                 In the Court of Common Pleas of Potter County
              Criminal Division at No(s): CP-53-CR-0000147-2016


BEFORE:      PANELLA, P.J., NICHOLS, J., and STRASSBURGER*, J.

MEMORANDUM BY PANELLA, P.J.:                           FILED AUGUST 23, 2019

        Desiree L. Tipping appeals from the judgment of sentence entered in

the Potter County Court of Common Pleas following her guilty plea to providing

heroin laced with fentanyl resulting in the victim’s death. Tipping challenges

the discretionary aspects of her sentence. We affirm.

        In exchange for her plea, the Commonwealth nolle prossed additional

charges and agreed to a minimum sentence of 60 months or less. The trial

court sentenced Tipping to 60 to 120 months’ imprisonment pursuant to this

agreement. On March 26, 2018, Tipping filed a motion for reconsideration of

sentence, which the court denied. This appeal follows.




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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      On appeal, Tipping raises several challenges to the discretionary aspects

of her sentence. Specifically, Tipping argues that the trial court failed to

articulate individualized reasons to support the sentence imposed and that the

sentence is manifestly excessive sentence in light of the plea agreement. See

Appellant’s Brief, at 4, 19.

      “Generally, a plea of guilty amounts to a waiver of all defects and

defenses except those concerning the jurisdiction of the court, the legality of

the sentence, and the validity of the guilty plea.” See Commonwealth v.

Reichle, 589 A.2d 1140, 1141 (Pa. Super. 1991). “The determination of

whether discretionary aspects of sentencing may be challenged after a guilty

plea is entered depends upon the actual terms of the plea bargain, specifically,

to   what   degree    a   sentence   agreement    has   been   reached.”   See

Commonwealth v. Dalberto, 648 A.2d 16, 18.

       Where the plea agreement provides specific penalties, an appeal from

a discretionary sentence will not stand; however, where the plea agreement

provides for no sentencing restrictions, the entry of a guilty plea will not

preclude a challenge to the discretionary aspects of sentencing. See id., at

20. When the plea agreement falls somewhere between a negotiated plea and

an open plea, we must determine the effect of the hybrid plea agreement on

the right to challenge the discretionary aspects of his sentence. See id., at

21. Therefore, Tipping may only challenge the discretionary aspects of the




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sentence that were not the subject of her agreement with the Commonwealth.

See id.

      Furthermore, “[c]hallenges to the discretionary aspects of sentencing

do not entitle an appellant to review as of right.” Commonwealth v. Moury,

992 A.2d 162, 170 (Pa. Super. 2010) (citation omitted).

      Rather, an appellant challenging the sentencing court’s discretion
      must invoke this Court’s jurisdiction by (1) filing a timely notice of
      appeal; (2) properly preserving the issue at sentencing or in a
      motion to reconsider and modify the sentence; (3) complying with
      Pa.R.A.P. 2119(f), which requires a separate section of the brief
      setting forth “a concise statement of the reasons relied upon for
      allowance of appeal with respect to the discretionary aspects of a
      sentence[;]” and (4) presenting a substantial question that the
      sentence appealed from is not appropriate under the Sentencing
      Code, 42 Pa.C.S.[A.] § 9781(b).

Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en

banc) (citation omitted).

      Tipping has complied with the technical requirements to present her

challenge to the discretionary aspects of her sentence. We therefore assess

whether she has raised a substantial question.

      Initially, we note that Tipping received a sentence in compliance with

her guilty plea. Tipping pled guilty to a single count of drug delivery resulting

in death in exchange for the Commonwealth dropping her charges of

possession with intent to deliver heroin and criminal use of a communication




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facility.1 See Plea Agreement, 2/5/18, at 1-2. Further, the Commonwealth

made a binding recommendation that the “minimum [] not exceed 60 months’

incarceration[.]” Id., at 2. The PSI revealed that 60 months fell at the lower

end of the standard range sentences. Tipping indicated that she understood

the agreed-upon sentence, and that she was voluntarily, knowingly, and

intelligently pleading guilty. See Guilty Plea, 2/5/18 at 1-3.

        In her first challenge, Tipping contends that the terms of the plea

agreement shifts the sentencing guidelines. Specifically, Tipping contends

that, because 60 months is the newly agreed upon maximum minimum

sentence, 60 months essentially becomes an aggravated-range sentence.

Neither case law nor the record is cited in support of this contention. Moreover,

even if we assume this argument raises a substantial question, we conclude

it conflicts with law as set forth in Dalberto. Tipping’s argument does not

merit any relief.

        Next, Tipping claims that the sentencing court failed to consider

mitigating factors, such as her crime free background, cooperation with

authorities, or status as a mother, at sentencing. Once again, even if we

determine this argument raises a substantial question, we discern no abuse

of discretion in the court’s decision not to impose a minimum sentence of less

than sixty months.


____________________________________________


1   35 Pa.C.S.A. § 780-113(A)(30) and 18 Pa.C.S.A. § 7512(a), respectively.


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      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. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015) “Where

the sentencing court had the benefit of a presentence investigation report

(‘PSI’), 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.” Commonwealth v. Moury, 992 A.2d 162,

171   (Pa.   Super.   2010)   (internal   citations   and   quotations   omitted).

Additionally, this court may not reweigh factors considered by the sentencing

court to arrive at a different conclusion. See Commonwealth v. Walls, 592

Pa. 557, 573, 926 A.2d 957, 966 (2007).

      The record does not support Tipping’s argument. Tipping presented

multiple character witnesses at sentencing, all testifying to her status as a

single mother and crime free history. Additionally, sentencing court had the

aid of a PSI. The court expressly considered these potentially mitigating

factors yet refused to weight them heavily. See N.T., Sentencing, 6/21/18 at

32. This court may not reweigh factors for the sentencing court. As such, we

find that the sentencing court did not abuse its discretion.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/23/2019




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