J-S58038-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                      Appellee                 :
                                               :
                 v.                            :
                                               :
    JEFF DEPOE                                 :
                                               :
                      Appellant                :       No. 376 MDA 2017

            Appeal from the Judgment of Sentence January 13, 2017
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0002947-2015


BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.:                        FILED NOVEMBER 21, 2017

        Appellant, Jeff Depoe, appeals from the judgment of sentence entered

in the Lancaster County Court of Common Pleas, following his open guilty

plea to driving under the influence—general impairment (“DUI”) and driving

while operating privilege is suspended or revoked.1 We affirm.

        The relevant facts and procedural history of this case are as follows.

On June 6, 2015, Officer Arnold initiated a traffic stop after he observed

Appellant driving erratically.          Due to the belief that Appellant was

intoxicated, police administered three field sobriety tests, which Appellant

failed.   A search of Appellant’s name in the police database also revealed

that Appellant’s license was suspended.            Police arrested Appellant and
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1   75 Pa.C.S.A. §§ 3802(a)(1) and 1543(b)(1), respectively.
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transported him to the police station.           At the station, Officer Covey read

Appellant PennDOT’s DL-26 form, which lists the potential enhanced

penalties for failure to submit to a breath test.           Appellant subsequently

refused to consent to a breath test and signed the DL-26 form.                 The

Commonwealth charged Appellant on July 9, 2015, with DUI—general

impairment graded as a first-degree misdemeanor2 and driving while

operating privilege is suspended or revoked.               On October 24, 2016,

Appellant entered an open guilty plea to both charges, and the court

deferred sentencing pending the preparation of a pre-sentence investigation

(“PSI”) report.

       On January 13, 2017, the court sentenced Appellant to ninety (90)

days’ imprisonment for the driving while operating privilege is suspended or

revoked conviction, and a consecutive term of two (2) to five (5) years’

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2 The Commonwealth graded the DUI—general impairment charge as a first-
degree misdemeanor due to Appellant’s refusal to submit to a breath test.
See 75 Pa.C.S.A. § 3803(b)(4) (explaining person who violates Section
3802(a)(1) and refuses breath test commits first-degree misdemeanor). As
such, Appellant faced an increased penalty of up to five years’ imprisonment.
See 18 Pa.C.S.A. § 1104 (explaining person who commits first-degree
misdemeanor faces sentence of not more than five years). Significantly, this
Court has determined that enhanced penalties for failure to submit to a
breath test do not run afoul of the United States Supreme Court’s decision in
Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160, 195 L.Ed.2d
560 (2016). See Commonwealth v. Giron, 155 A.3d 635, 640 n.13
(2017) (explaining enhanced penalties based on refusal to consent to breath
test do not violate Constitution). Thus, Appellant faced a sentence of up to
five years’ imprisonment if convicted of the DUI—general impairment
charge.



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imprisonment for the DUI—general impairment conviction.            Appellant’s

sentence for the DUI conviction was above the aggravated range of the

sentencing guidelines. The court explained it had considered the following

when it imposed Appellant’s sentence: (1) Appellant’s age and maturity; (2)

Appellant’s education level; (3) Appellant’s significant work history; (4)

Appellant’s significant prior criminal history, including numerous DUI

convictions; (5) the sentencing guidelines; (6) Appellant’s character; and (7)

statements made by Appellant and counsel. On January 23, 2017, Appellant

filed a post-sentence motion for reconsideration of sentence, which the court

denied on January 25, 2017.     Appellant timely filed a notice of appeal on

February 24, 2017. On February 27, 2017, the court ordered Appellant to

file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). After the court granted an extension of time, Appellant

filed his Rule 1925(b) statement on March 24, 2017.

      Appellant raises the following issue for our review:

         DID THE TRIAL COURT ABUSE ITS DISCRETION BY
         SENTENCING [APPELLANT] SEVEN MONTHS BEYOND THE
         AGGRAVATED RANGE OF THE SENTENCING GUIDELINES,
         WHERE IT INCORRECTLY STATED THAT IT WAS IMPOSING
         AN AGGRAVATED RANGE SENTENCE, FAILED TO
         CONSIDER THE REHABILITATIVE NEEDS OF…APPELLANT
         AND FAILED TO ADEQUATELY CONSIDER AN ALTERNATIVE
         SENTENCING    PROGRAM   THAT   [APPELLANT]  WAS
         QUALIFIED FOR?

(Appellant’ Brief at 5).

      Appellant argues the court failed to provide adequate explanation on


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the record for its imposition of a sentence above the aggravated range of the

sentence guidelines for his DUI conviction.           Appellant maintains the court

failed to consider several mitigating factors, including Appellant struggles

with addiction, difficult family circumstances, and eligibility for an alternative

sentencing program. Appellant also avers the court improperly focused on

Appellant’s prior criminal history.            Appellant further submits the court

demonstrated its unawareness of the applicable sentencing guidelines when

it erroneously stated Appellant’s sentence was an aggravated range

sentence. Appellant concludes his sentence is manifestly excessive, and this

Court should vacate and remand for resentencing. As presented, Appellant

challenges the discretionary aspects of his sentence.3 See Commonwealth

v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating claim that sentence is

manifestly excessive challenges discretionary aspects of sentencing).

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

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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 guilty plea included
no negotiated sentence.



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aspect of sentencing issue:

         We 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. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013), appeal

denied, 621 Pa. 682, 76 A.3d 538 (2013) (quoting Commonwealth v.

Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal denied, 589 Pa. 727,

909 A.2d 303 (2006)). Generally, objections to the discretionary aspects of

a sentence are waived if they are not raised at the sentencing hearing or

raised in a motion to modify the sentence imposed at that hearing.

Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super. 2003), appeal

denied, 574 Pa. 759, 831 A.2d 599 (2003).

      When appealing the discretionary aspects of a sentence, an appellant

must also invoke the appellate court’s jurisdiction by including in his brief a

separate concise statement demonstrating that there is a substantial

question as to the appropriateness of the sentence under the Sentencing

Code. Commonwealth v. Mouzon, 571 Pa. 419, 425-26, 812 A.2d 617,

621-22 (2002); Pa.R.A.P. 2119(f).       “The requirement that an appellant

separately set forth the reasons relied upon for allowance of appeal ‘furthers

the purpose evident in the Sentencing Code as a whole of limiting any


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challenges to the trial court’s evaluation of the multitude of factors impinging

on the sentencing decision to exceptional cases.’”           Commonwealth v.

Phillips, 946 A.2d 103, 112 (Pa.Super. 2008), appeal denied, 600 Pa. 745,

964 A.2d 895 (2009), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174

L.Ed.2d 240 (2009) (quoting Commonwealth v. Williams, 562 A.2d 1385,

1387    (Pa.Super.   1989)    (en   banc)   (emphasis   in    original)).   “The

determination of what constitutes a substantial question must be evaluated

on a case-by-case basis.” Commonwealth v. Anderson, 830 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)). Significantly, a claim that the sentencing

court imposed a sentence outside the guidelines without stating adequate

reasons on the record presents a substantial question. Commonwealth v.

Robinson, 931 A.2d 15, 26 (Pa.Super. 2007) (en banc).

       Here, Appellant properly preserved his discretionary aspects of

sentencing claim in his post-sentence motion, Rule 1925(b) statement, and

Rule 2119(f) statement.      Additionally, his claim that the court imposed a

sentence above the aggravated range of the sentencing guidelines without


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adequate explanation on the record appears to raise a substantial question

as to the discretionary aspects of his sentence. See id.

      Our standard of review of a challenge to 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) (quoting Commonwealth v.

Rodda, 723 A.2d 212, 214 (Pa.Super. 1999) (en banc)).

      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 on the community, and the

rehabilitative needs of the defendant.”       42 Pa.C.S.A. § 9721(b).        “[T]he

court shall make as part of the record, and disclose in open court at the time

of sentencing, a statement of the reason or reasons for the sentence

imposed.”   Id.   Nevertheless, “[a] sentencing court need not undertake a

lengthy discourse for its reasons for imposing a sentence or specifically

reference the statute in question….” Commonwealth v. Crump, 995 A.2d


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1280, 1283 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475

(2010). Rather, the record as a whole must reflect the sentencing court’s

consideration of the facts of the case and the defendant’s character. Id. “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).

       Instantly, the court had the benefit of a PSI report at sentencing.

Therefore, we can presume the court considered the relevant factors when it

sentenced Appellant. See Tirado, supra at 368 (holding where sentencing

court had benefit of PSI, law presumes court was aware of and weighed

relevant information regarding defendant’s character and mitigating factors).

The court also thoroughly explained its reasons for Appellant’s sentence as

follows:

           Here, the [c]ourt did not abuse its discretion when it
           sentenced [Appellant].        At the sentencing hearing,
           [Appellant] faced a possible maximum sentence of up to
           [five (5)] years’ confinement for [the DUI conviction] and
           ninety (90) days for [the driving while operating privilege
           is suspended or revoked conviction]. However, after being
           informed by [Appellant’s PSI report] and sentencing
           guidelines,    statements      by  [Appellant]  and     the
           Commonwealth, the court sentenced [Appellant] to [two
           (2) to five (5)] years’ confinement.

           In its opinion, the [c]ourt specifically noted that
           [Appellant] is 48 years of age, indicating sufficient
           maturity to understand the significance of his acts.

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          [Appellant] has his GED which indicates he is intelligent
          enough to understand his acts. He is able to read, write,
          and understand the English language. [Appellant] does
          have significant work history, which indicates he is capable
          of following directions. [Appellant] also has significant
          prior criminal history including six previous arrests for
          drunk driving, this being his seventh such offense since
          1993.     Additionally, there are convictions for simple
          assault, misdemeanor disorderly conduct, furnishing
          intoxicants to minors, and recklessly endangering [another
          person]. Moreover, since being on supervision, there were
          twelve (12) different occasions when [Appellant] violated
          the terms of his supervision.         These circumstances
          demonstrate that the [c]ourt did not sentence [Appellant]
          to a manifestly excessive or clearly unreasonable sentence.
          As such, the claims of error are without merit.

(See Trial Court Opinion, filed May 4, 2017, at 3-4).4 The record supports

the court’s reasoning.        Therefore, Appellant’s sentencing challenge fails.

See Hyland, supra. Accordingly, we affirm the judgment of sentence.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2017


____________________________________________


4Appellant’s sentence of two (2) to five (5) years’ imprisonment for his first-
degree misdemeanor DUI—general impairment conviction was within the
applicable statutory limits. See 75 Pa.C.S.A. § 3803(b)(4); 18 Pa.C.S.A. §
1104.



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