J-S18006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                           OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

RYAN PAUL

                          Appellant                 No. 709 WDA 2017


     Appeal from the Judgment of Sentence imposed January 20, 2017
         In the Court of Common Pleas of Westmoreland County
             Criminal Division at No: CP-65-CR-0002118-2014


BEFORE: STABILE, J., MUSMANNO, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.:                          FILED JULY 16, 2018

     Appellant, Ryan Paul, appeals from the judgment of sentence the Court

of Common Pleas of Westmoreland County imposed on January 20, 2017. On

appeal, Appellant challenges the discretionary aspects of his sentence. Upon

review, we affirm.

     The underlying facts are undisputed.     Briefly, Appellant attacked his

victim in a parking lot near a bar. While wrestling with the victim, Appellant

retrieved his knife from his pocket, and stabbed the victim in the neck. The

stabbing resulted in a severed lymph node and a severed artery, requiring

surgery.   Three days after the assault, the victim was released from the

hospital. Approximately ten days after the assault, during a follow-up visit,

the victim suffered another artery rupture, requiring another immediate

surgery.
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       A jury acquitted Appellant of attempted homicide, but found him guilty

of aggravated assault. The trial court sentenced Appellant to seven to twenty

years’ incarceration.         Appellant    timely filed a   post-sentence   motion

challenging, inter alia, the imposition of an aggravated range sentence. The

trial court denied the motion. This appeal followed.

       Preliminarily, we address the most recent claim raised by Appellant. In

his reply brief, Appellant argues that the sentencing court abused its discretion

in imposing the deadly weapons enhancement.1 No relief is due.

       At the time of sentencing, the Commonwealth stated on the record that

it was seeking the application of the “Deadly Weapon Use” (DWU)

enhancement.        Counsel for Appellant did not appear surprised by the

Commonwealth’s request nor did he dispute its applicability. The same is true

of the sentencing court. Based on the information provided to the sentencing

court, which included the unchallenged applicability of the DWU enhancement,

the court sentenced Appellant to 84 months to 240 months’ imprisonment.2

       After sentencing, but before the expiration of the deadline for filing post-

sentence motions, Appellant retained new counsel (instant counsel).           New

counsel filed a post-sentence motion challenging Appellant’s “aggravated”

range sentence. Nowhere did Appellant explain what he understood to be an
____________________________________________


1This Court has held that a challenge to the application of the deadly weapon
enhancement implicates the discretionary aspects of sentencing.
Commonwealth v. Kneller, 999 A.2d 608, 613 (Pa. Super. 2010) (en banc).

2 The mitigated/standard/aggravated sentences for DWU sentences applicable
to Appellant (OGS 11, Level 5) are, respectively, 42, 52-74, and 84 months.

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“aggravated” range sentence.           Similarly, Appellant’s subsequent Pa.R.A.P.

1925(b) statement and Appellant’s own appellate brief to this Court do not

mention anywhere the application of a deadly weapons enhancement. Indeed,

in all filings, Appellant generally complained of the imposition of an

“aggravated” range sentence, but never stated that it was the result of the

application of a deadly weapon enhancement. Appellant eventually realized

that “aggravated” sentence in the instant case meant an aggravated DWU

sentence.      The realization, however, came about only following the

Commonwealth’s filing of its appellate brief. Upon realizing what “aggravated”

meant here, Appellant filed a reply brief in which he raised a challenge to the

application of the deadly weapon enhancement.            The challenge, however,

cannot be addressed. Indeed, it is well-established that claims raised for the

first time on appeal are waived. See, e.g., Pa.R.A.P. 302(b). The claim is,

therefore, waived.

       In his appellate brief, Appellant challenges the discretionary aspects of

his sentence. Specifically, he argues the sentence is too harsh because the

trial court: (1) failed to consider certain mitigating factors; (2) impermissibly

considered charges for which Appellant was not convicted, and crimes with

which he was not charged; and (3) failed to consider the facts pertaining to

the crimes of which he was convicted and his rehabilitative needs.3

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3 In the third issue, as developed in the argument section, Appellant
essentially rehashes the first two issues. Regarding the rehabilitative needs,



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        “In reviewing a challenge to the discretionary aspects of sentencing, we

evaluate the court’s decision under an abuse of discretion standard.

Additionally, this Court’s review of the discretionary aspects of a sentence is

confined by the statutory mandates of 42 Pa.C.S.[A]. § 9781(c) and (d).”

Commonwealth v. Dodge, 77 A.3d 1263, 1274 (Pa. Super. 2013) (quotation

marks and citations omitted).4
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Appellant claims that the trial court did not consider them. However, he failed
to explain what needs the trial court should have considered. The claim is
waived. Commonwealth v. Plante, 914 A.2d 916, 924 (Pa. Super. 2006)
(citation omitted). “We have repeatedly held that failure to develop an
argument with citation to, and analysis of, relevant authority waives the issue
on review.”).

4   Section 9781(c) directs:

        The appellate court shall vacate the sentence and remand the case
        to the sentencing court with instructions if it finds:

        (1) the sentencing court purported to sentence within the
        sentencing guidelines but applied the guidelines erroneously;

        (2)    the sentencing court sentenced within the sentencing
        guidelines but the case involves circumstances where the
        application of the guidelines would be clearly unreasonable; or

        (3) the sentencing court sentenced outside the sentencing
        guidelines and the sentence is unreasonable.

        In all other cases the appellate court shall affirm the sentence
        imposed by the sentencing court.

42 Pa.C.S.A. § 9781(c).

Section 9781(d) directs that the appellate court, in reviewing the record, shall
have regard for:



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       Our standard of review for challenges to the discretionary aspects of a

sentence is well settled.          We apply an abuse of discretion standard.

Additionally, because challenges to the discretionary aspects do not entitle an

appellant to appellate review as of right, an appellant challenging the

discretionary aspects of his sentence must invoke this Court’s jurisdiction by

satisfying a four-part test to determine: 1) whether the appellant has filed a

timely notice of appeal; (2) whether the issue was properly preserved at

sentencing or in a motion to reconsider and modify sentence; (3) whether the

appellant’s brief has a fatal defect; and (4) whether there is a substantial

question that the sentence appealed from is not appropriate under the

Sentencing Code. See Commonwealth v. Moury, 992 A.2d 162, 169-70

(Pa. Super. 2010).

       For purposes of our review, we accept that Appellant has met all

requirements of the above test.



____________________________________________




       (1) The nature and circumstances of the offense and the history
       and characteristics of the defendant.

       (2) The opportunity of the sentencing court to observe the
       defendant, including any presentence investigation.

       (3) The findings upon which the sentence was based.

       (4) The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(d).


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      Appellant contends that the sentencing court failed to consider the

following mitigating factors: “[Appellant] had a prior record score of ‘zero,’

and [Appellant]’s encounters with law enforcement were as a result of a drug

addiction stemming from injuries sustained in active duty with the military,

and exacerbated by the VA’s refusal to provide necessary follow-up treatment

upon [Appellant]’s discharge.” Appellant’s Rule 1925(b) Statement at 2.

      The record belies the allegation. At sentencing, in relevant part, the

sentencing court stated:

      We thank you for your service, Mr. Paul, to your country. It’s
      unfortunate you had injuries and you were on medication and then
      you turned to heroin. That happens unfortunately frequently,
      even to young men and wom[e]n who have sports injuries and
      they’re treated with prescription pain medication and they become
      addicted. That is a problem. That’s not a problem that certainly
      I can address today. It’s a problem that we have as a society to
      address.

      However, you had opportunities. You were in drug treatment just
      prior to this happening. At the time of this incident you had the
      opportunity for treatment. You had just been released from
      rehab.

      I’m looking at the guidelines, and I have certainly considered the
      guidelines, I have considered the presentence report[.] The fact
      that you have a prior record score of zero makes the guidelines a
      certain level. However, this incident occurred in April of 2014 and
      in January, February and March of 2014 you had six arrests. []

                                     ....

      What also troubles me in this case is that [victim] didn’t know you.
      He happened to go into a bar in April of 2014 with his girlfriend
      for a drink, came out and then he is attacked by you in the parking
      lot. It wasn’t a fight. This man was just walking to his vehicle.
      You attacked him and he could have died. I agree with [the
      Assistant District Attorney] we could have been talking about that.

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         Your life has changed, your parents’ lives have changed, your
         children’s lives have changed but this man could have died.
         [Victim]’s life is changed forever also because he suffers chronic
         numbness and pain. He has over $70,000.00 in medical bills. He
         was in the ICU for three days when this occurred, and ten days
         later he was back in having surgery and another three days in the
         hospital. His life is changed forever and you know you have to be
         responsible for that, Mr. Paul.

         I believe you are sincere that you’re sincere in your desire to turn
         your life around and sincere in the love of your family. Why
         shouldn’t you be? They are a loving family. I’m sure that you want
         to be involved with your children, but there has to be responsibility
         for your actions.

N.T. Sentencing, 1/20/17 at 21-24.

         Thus, contrary to Appellant’s allegation, the sentencing court considered

the mitigating factors Appellant claims were not considered by the sentencing

court.     The sentencing court, however, weighed them not as favorably as

urged by Appellant. Dissatisfaction with the way the sentencing court treated

these considerations, however, fails to establish that the sentencing court

abused its discretion.5




____________________________________________


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




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       Next, Appellant argues that the sentencing court improperly considered

charges for which he was acquitted (attempted murder) or never charged

(homicide). Once again, the record belies the allegation.6

       The sentencing court addressed the claim as follows:

       The [sentencing court] did not state that [Appellant] intended to
       kill the victim, but merely recognized that the victim’s injuries
       were life threatening, which was supported by the record.
       [Victim] testified that he suffered from a severed lymph node and
       severed artery. Soon after he was released from hospital, [victim]
       suffered from another artery rupture and was forced to undergo a
       second surgery because an additional bleed in the jugular vein
       existed that required cauterization. [Victim] noted that the area
       of his wound is still numb and it is tender to the touch. Doctors
       informed [victim] that the stab wound was at least three inches
       deep. The parties also stipulated to testimony from [victim]’s
       doctors who would have testified that [victim]’s wounds were life-
       threatening.     The [c]ourt recognizes its duty in considering
       guidelines when sentencing, but notes that the severity of the
       crime and its brutal impact on the victim necessitated a sentence
       in the aggravated range.

Trial Court Opinion, 4/11/17, at 11-12.

       A review of the record supports the sentencing court’s analysis and

conclusions. Thus, in light of the foregoing, we conclude the trial court did

not abuse its discretion in fashioning Appellant’s sentence.



____________________________________________


6 Appellant’s claim appears to be grounded on statements the court made at
the time of sentencing, which, read in isolation, would seem to suggest that
the sentencing court thought the victim in the instant case had died as result
of the Appellant’s actions. The Commonwealth immediately brought the error
to the attention of the sentencing court, and the court rectified the error
immediately on the record. The record, as a whole, unequivocally shows that
the sentencing court was fully aware of Appellant’s charges, convictions, and
acquittals.

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      Judgment of sentence affirmed.

      President Judge Emeritus Ford Elliott did not participate in the

consideration or decision of this case.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/16/2018




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