J-S09036-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    ADRIAN SIMON REID                          :
                                               :
                      Appellant                :       No. 858 MDA 2017

             Appeal from the Judgment of Sentence March 23, 2017
              In the Court of Common Pleas of Lackawanna County
              Criminal Division at No(s): CP-35-CR-0002697-2016


BEFORE:      GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

MEMORANDUM BY GANTMAN, P.J.:                             FILED APRIL 10, 2018

        Appellant, Adrian Simon Reid, appeals from the judgment of sentence

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

open guilty plea to disorderly conduct.1 We affirm.

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

           [The] charges stemmed from a June 9, 2016, incident at
           the WalMart in Dickson City, Lackawanna County,
           Pennsylvania, where [Appellant] cashed two fraudulent
           checks made payable to him from Marywood University as
           part of a larger check cashing scheme.

           On January 27, 2017, [Appellant] entered an [open] guilty
           plea to one (1) count of [d]isorderly [c]onduct and the
           remaining charges were nolle prossed. Prior to entering
           his guilty plea, [Appellant] executed a lengthy written plea
           colloquy form in which [he] indicated his awareness of the
____________________________________________


1   18 Pa.C.S.A. § 5503(a)(4).


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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         maximum penalties he was facing, the elements of the
         crimes charged, his satisfaction with counsel, and the
         terms of the plea agreement. Moreover, [the court] also
         conducted an on the record inquiry into…whether
         [Appellant] was entering a knowing, voluntary, and
         intelligent plea.   After receiving satisfactory responses
         from [Appellant], [the court] accepted the guilty plea.

         On March 23, 2017, [the court] sentenced [Appellant] to
         three (3) to twelve (12) months’ confinement, consecutive
         to the unrelated sentence he was serving under [docket
         number 2670-2015] for [p]ossession with [i]ntent to
         [d]eliver.

         On April 3, 2017, [Appellant timely] filed a [m]otion for
         [r]econsideration of [s]entence, which [the court] denied
         on April 19, 2017.

(Trial Court Opinion, filed July 19, 2017, at 1-2) (internal citations omitted).

      Appellant timely filed a notice of appeal on May 19, 2017. On May 22,

2017, the court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b); Appellant timely

complied on June 12, 2017.

      Appellant raises the following issue for our review:

         WHETHER THE SENTENCING COURT ABUSED ITS
         DISCRETION   IN  SENTENCING…APPELLANT   TO   [A]
         SENTENCE OF THREE (3) TO TWELVE (12) MONTHS[’]
         INCARCERATION, TO BE SERVED CONSECUTIVE TO A
         PERIOD OF INCARCERATION OF EIGHT (8) TO TWENTY-
         THREE      (23)     [MONTHS’     INCARCERATION]
         THAT…APPELLANT WAS SERVING IN AN UNRELATED
         MATTER…?

(Appellant’s Brief at 8).

      Appellant argues the trial court failed to state its reasons on the record

for sentencing Appellant in the aggravated range of the sentencing

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guidelines.    Appellant further complains the trial court did not state its

reasons for imposing the sentence consecutive to one Appellant was serving

in an unrelated case.        Appellant submits the court failed to consider the

relevant criteria contained in the Sentencing Code, which resulted in a

sentence that is inconsistent with the protection of the public, the gravity of

the offense as it relates to the impact on the community, and Appellant’s

rehabilitative needs.       Appellant concludes this Court should vacate his

judgment of sentence. As presented, Appellant challenges the discretionary

aspects of his sentence.2 See Commonwealth v. Cartrette, 83 A.3d 1031

(Pa.Super. 2013) (en banc) (explaining claim sentencing court failed to

follow Section 9721(b) factors pertains to discretionary sentencing matters);

Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595 (Pa.Super. 2010)

(explaining challenge to imposition of consecutive sentences implicates

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

____________________________________________


2 “[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) (emphasis in original). “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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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).

Additionally, “[a]s a general rule, any issues not raised in a [Rule] 1925(b)

statement will be deemed waived.”      Commonwealth v. Castillo, 585 Pa.

395, 403, 888 A.2d 775, 780 (2005) (quoting Commonwealth v. Lord,

553 Pa. 415, 420, 719 A.2d 306, 309 (1998)).

        When appealing the discretionary aspects of a sentence, an appellant

must 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, 812 A.2d 617 (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 challenges to the trial

court’s evaluation of the multitude of factors impinging on the sentencing


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decision to exceptional cases.”       Commonwealth v. Phillips, 946 A.2d

103, 112 (Pa.Super. 2008), 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) (internal

quotation marks omitted).

      “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 912-13.         A challenge to the

consecutive imposition of a sentence to one a defendant was already serving

does not ordinarily raise a substantial question. Commonwealth v. Marts,

889 A.2d 608 (Pa.Super. 2005).

      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.


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

denied, 586 Pa. 723, 890 A.2d 1057 (2005).

     Here, Appellant preserved his challenge to the court’s imposition of a

consecutive sentence in a timely filed post-sentence motion, a Rule 1925(b)

statement, and a Rule 2119(f) statement.        Appellant’s challenge to the

court’s imposition of the sentence in this case to be served consecutively to

the one Appellant was serving in a different case, however, does not raise a

substantial question.   See Evans, supra; Marts, supra.        To the extent

Appellant argues the court did not state its reasons on the record for the

aggravated range sentence, Appellant failed to preserve this specific claim in

his timely filed post-sentence or in his Rule 1925(b) statement. Thus, that

portion of Appellant’s sentencing issue is waived.      See Evans, supra;

Castillo, supra. Accordingly, we affirm.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/10/2018




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