J-S42023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ERIC RHOADS

                            Appellant                 No. 125 MDA 2017


             Appeal from the Judgment of Sentence February 1, 2017
                 In the Court of Common Pleas of Clinton County
               Criminal Division at No(s): CP-18-CR-0000400-2016


BEFORE: OLSON, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

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

       Eric Rhoads appeals from the February 1, 2017 judgment of sentence

entered in the Clinton County Court of Common Pleas following his plea of

nolo contendere to one count each of stalking and theft by unlawful taking –

movable property.1 We affirm.

       On November 3, 2016, Rhoads entered a plea of nolo contendere to

the above charges. On December 5, 2016, the trial court sentenced Rhoads

to a term of 11½ to 24 months’ incarceration on the stalking conviction and

a consecutive term of 60 months’ probation for the theft conviction.     The

trial court also imposed a $1,000 fine. On February 1, 2017, the trial court

entered an amended sentencing order, correcting a typographical error.

____________________________________________


       1   18 Pa.C.S. §§ 2709.1(a)(1) and 3921(a), respectively.
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     Rhoads raises the following issue on appeal:

        Whether the court abused its discretion in sentencing
        [Rhoads] to essentially the maximum of the minimum
        sentence on a stalking charge and the maximum available
        period of probation on the theft charge resulting in an
        aggregate sentence of eleven and one-half (11 ½) to
        twenty-four (24) months minus one (1) day and five (5)
        years consecutive probation.

Rhoads’ Br. at 9 (unnecessary capitalization omitted).

     An appeal from the discretionary aspects of sentencing is not

guaranteed as a matter of right.     Commonwealth v. Mastromarino, 2

A.3d 581, 585 (Pa.Super. 2010).     Before addressing such a challenge, we

must determine:
        (1) whether the appeal is timely; (2) whether [the]
        [a]ppellant preserved his [or her] issue; (3) whether [the]
        [a]ppellant’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 [S]entencing [C]ode.

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

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

see Pa.R.A.P. 2119(f).

     Here, Rhoads filed a timely notice of appeal, preserved his claim in a

timely post-sentence motion, and included in his brief a concise statement of

reasons for allowance of appeal under Rule 2119(f).          We must now

determine whether he has raised a substantial question that his sentence is

inappropriate under the Sentencing Code.




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       We evaluate whether a particular issue raises a substantial question on

a case-by-case basis.       Commonwealth v. Dunphy, 20 A.3d 1215, 1220

(Pa.Super. 2011). A substantial question exists where an appellant raises a

“plausible argument that the sentence violates a provision of the sentencing

code or is contrary to the fundamental norms of the sentencing process.”

Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa.Super. 2013) (quoting

Commonwealth v. Naranjo, 53 A.2d 66, 72 (Pa. 2002)).

       In his Rule 2119(f) statement, Rhoads contends that his minimum

sentence for the stalking conviction and the length of his probation sentence

for the theft conviction are excessive and argues that the trial court did not

consider and/or adequately consider “numerous factors.” Rhoads’ Br. at 7.2

“[A]n excessiveness claim in conjunction with an assertion that the court did

not adequately consider a mitigating factor may present a substantial


____________________________________________


       2Rhoads does not identify which factors he believes the trial court
failed to consider in his Rule 2119(f) statement.         “Generally, a bald
excessiveness claim does not raise a substantial question.” Commonwealth
v. Zeigler, 112 A.3d 656, 662 (Pa.Super. 2015). However, elsewhere in his
brief, Rhoads identifies the factors he contends the trial court did not
consider, including: his age, that he was readily employable, that he had
not been involved with the criminal justice system since 2007, that he had
been incarcerated for five months by the time of sentencing, that the trial
court placed undue weight on his past violation of a protection from abuse
order where the victim withdrew similar charges, and that the trial court
placed great weight on its belief that Rhoads is a danger to society even
though his prior record consisted primarily of driving under the influence
offenses, and there was no allegation that alcohol was involved in the instant
offenses. See Rhoads’ Br. at 14, 16.



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question,”   Commonwealth v. Zeigler, 112 A.3d 656, 662 (Pa.Super.

2015), as does “[a]n averment that the trial court failed to consider relevant

sentencing criteria, including the protection of the public, the gravity of the

underlying offense and the rehabilitative needs of [the a]ppellant, as 42

P[a].C.S.[ ] § 9721(b) requires[,]” Commonwealth v. Derry, 150 A.3d

987, 992 (Pa.Super. 2016) (quoting Commonwealth v. Riggs, 63 A.3d

780, 786 (Pa. Super. 2012)) (some alterations in original). Accordingly, we

conclude that Rhoads has raised a substantial question for our review.

      “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

support so as to be clearly erroneous.” Id. The Sentencing Code requires a

trial court to impose a sentence 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. § 9721(b); see Commonwealth v. Walls, 926 A.2d

957, 962 (Pa. 2007).

      At the time of sentencing, the trial court stated:

            Mr. Rhoads is before this Court for sentencing as
         previously referenced to two counts of the information,
         stalking and theft by unlawful taking, both misdemeanors
         of the first degree, I believe. The only agreement in this

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       case is that [Rhoads] will be permitted to serve his
       minimum sentence locally.      The Court will honor that
       portion of the agreement. The Court has reviewed the
       sentencing guidelines. They were previously referenced.
       They were referenced correctly. I’m not going to repeat
       those. Also reviewed the Pre-Sentence Investigation, and
       listened very closely to the victim impact statement that
       was provided today by [the victim], as well as the
       statement that was included with the presentence.

          Mr. Rhoads has been in the criminal system since 2001.
       He’s had numerous DUI offenses and various assault
       offenses. The violation of the Protection from Abuse Order
       was mentioned today. I place an extreme amount of
       weight on that violation. It is clear to this Court that Mr.
       Rhoads does not have the ability to take no for an answer
       when it comes to this relationship. He’s 38 years old, he’s
       single, has one child, he’s unemployed but does possess a
       high school diploma. It’s clear to this Court that he has a
       significant issue with alcohol. Apparently he sees himself
       as a loaner [sic]. Since he’s been incarcerated, he has not
       attended any groups and he doesn’t socialize. That’s
       another red flag for the Court. To date he’s been in the
       Intermediate Punishment Program. He served time at the
       county level. He’s been placed in the State Intermediate
       Punishment [(“SIP”)] program, and he’s currently subject
       to a 36 month probation tail from his SIP sentence.

           The Court is extremely concerned over [Rhoads’]
       behavior. It is clear to the Court that [Rhoads] has not
       been deterred in any manner from his criminal behavior.
       Nothing that’s been done in the past has worked. The
       Court accepts the victim’s position that she is fearful for
       her life. The Court understands her position, and also
       believes that she’s somewhat in danger. The Court finds
       that Mr. Rhoads is likely to again engage in criminal
       behavior and that he is definitely a threat to [the victim],
       and more than likely a threat to society, in general.
       Probation and partial confinement are not options under
       the circumstances. The Court will not consider a time
       served sentence as requested by counsel today. The Court
       believes that an extensive period of incarceration and
       supervision are necessary and appropriate under the
       circumstances.


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N.T., 12/5/16, at 9-11.

      The trial court considered 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 Rhoads’ rehabilitative needs.         See 42 Pa.C.S. § 9721(b).

Further, “[w]here 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)). Therefore, we conclude that the trial court did not abuse its

discretion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2017




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