J-S41036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    COTY W. WAMPOLE                            :
                                               :
                      Appellant                :       No. 71 MDA 2017

       Appeal from the Judgment of Sentence Entered December 2, 2016
                 In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0001569-2016


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

MEMORANDUM BY GANTMAN, P.J.:                           FILED AUGUST 15, 2017

        Appellant, Coty W. Wampole, appeals from the judgment of sentence

entered in the Berks County Court of Common Pleas, following his open

guilty plea to four counts of burglary.1 We affirm.

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

In March 2016, Appellant committed multiple burglaries in Amity Township

and Douglassville. During each burglary, Appellant entered a home without

the owner’s permission and took various items, including iPads, jewelry, a

laptop, a camera, a PlayStation 3, and cash. After the burglaries, Appellant

contacted the son of one of the victims with information about some of the


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1
    18 Pa.C.S.A. § 3502(a)(2).


_____________________________

*Retired Senior Judge assigned to the Superior Court.
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stolen items. An investigation into the burglaries led to Appellant’s arrest.

      On April 15, 2016, the Commonwealth charged Appellant with five

counts of burglary, two counts of criminal trespass, and one count each of

theft by unlawful taking or disposition and receiving stolen property.

Appellant entered an open guilty plea on December 2, 2016, to four counts

of burglary (count #1, count #3, count #4, and count #5 from the criminal

information), in exchange for the Commonwealth’s withdrawal of the

remaining charges against Appellant.      The court proceeded to sentencing

with the benefit of a pre-sentence investigation (“PSI”) report.     The court

imposed a term of eighteen (18) to thirty-six (36) months’ imprisonment at

count #4, a consecutive term of six (6) to twenty-four (24) months’

imprisonment at count #1, a consecutive term of three (3) years’ probation

at count #3, and a consecutive term of three (3) years’ probation at count

#5.   As a result, Appellant received an aggregate sentence of twenty-four

(24) to sixty (60) months’ imprisonment, followed by six (6) years’

probation.   When the court imposed Appellant’s sentence, it stated it had

considered the following: (1) the PSI report; (2) Appellant’s lack of criminal

history; (3) the sentencing guidelines; (4) Appellant’s acceptance of

responsibility; (5) the severity of the offenses; (6) the sentencing

recommendations by the Commonwealth and Appellant’s counsel; and (7)

Appellant’s rehabilitative needs.

      Appellant timely filed a post-sentence motion on December 12, 2016,

which asked the court to modify the sentence. Specifically, Appellant asked
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the court to resentence Appellant to a term of electronic monitoring in light

of the circumstances of the case and the relevant sentencing factors.

Alternatively, Appellant asked the court to impose all the sentences

concurrently.      The court denied Appellant’s post-sentence motion on

December 13, 2016. Appellant timely filed a notice of appeal on January 11,

2017.     That same day, the court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),

and Appellant timely complied on January 27, 2017.

        Appellant raises the following issues for our review:

           WHETHER APPELLANT’S SENTENCE OF 24 MONTHS—60
           MONTHS IN A STATE CORRECTIONAL INSTITUTION
           FOLLOWED BY SIX YEARS OF PROBATION WAS
           MANIFESTLY EXCESSIVE, CLEARLY UNREASONABLE, AND
           CONTRARY TO THE FUNDAMENTAL NORMS UNDERLYING
           THE SENTENCING CODE WHEN THE TRIAL COURT FAILED
           TO UTILIZE THE CORRECT OFFENSE GRAVITY SCORE FOR
           THE CRIME OF BURGLARY AT COUNT 4, THEREFORE
           IMPOSING    AN  AGGRAVATED SENTENCE WITHOUT
           STATING SUFFICIENT REASONS ON THE RECORD FOR THE
           UPWARD DEVIATION, IN VIOLATION OF 204 PA.CODE. §
           303.13?

           WHETHER THE [SENTENCING] COURT ERRED AND
           ABUSED ITS DISCRETION BY FAILING TO MEANINGFULLY
           CONSIDER THE FACTORS UNDER 42 PA.C.S.A. § 9721(B),
           INCLUDING 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 FOR [APPELLANT],” WHEN IT
           SENTENCED APPELLANT TO 24 MONTHS TO 60 MONTHS
           IN A STATE CORRECTIONAL INSTITUTION?

(Appellant’s Brief at 9).

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       For purposes of disposition, we combine Appellant’s issues. Appellant

argues the court used the wrong offense gravity score when it calculated the

guideline range for Appellant’s sentence at count #4. Appellant claims the

use of the wrong offense gravity score resulted in an aggravated range

sentence at count #4, without adequate explanation for the sentence on the

record. Appellant further complains 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 specifically contends the court failed to consider certain

mitigating factors, including Appellant’s lack of criminal history, age, and

unique circumstances. Appellant concludes the court’s errors resulted in a

sentence that is manifestly unreasonable and excessive, and this Court

should vacate the judgment of sentence and remand for resentencing. As

presented, Appellant challenges the discretionary aspects of his sentence.2

See Commonwealth v. Lutes, 793 A.2d 949, 964 (Pa.Super. 2002)


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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). “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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(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

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 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). Additionally, the failure to raise an issue in a court-

ordered Rule 1925(b) statement results in waiver of the issue on appeal.

Commonwealth v. Poncala, 915 A.2d 97, 100 (Pa.Super. 2006), appeal

denied, 594 Pa. 678, 932 A.2d 1287 (2007).


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      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

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).    “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).   An allegation that the sentencing court failed to consider certain

mitigating factors, absent more, does not raise a substantial question for our
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review.   Commonwealth v. Rhoades, 8 A.3d 912, 918-19 (Pa.Super.

2010), appeal denied, 611 Pa. 651, 25 A.3d 328 (2011), cert. denied, 565

U.S. 1263, 132 S.Ct. 1746, 182 L.Ed.2d 536 (2012). Nevertheless, a claim

that the trial court failed to consider the relevant sentencing criteria in 42

Pa.C.S.A. § 9721(b), presents a substantial question for our view.

Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa.Super. 2012), appeal

denied, 619 Pa. 690, 63 A.3d 776 (2013).

      Here, to the extent Appellant claims he received an aggravated range

sentence due to the court’s use of the incorrect offense gravity score at

count #4, Appellant failed to raise this issue at the sentence hearing, in a

post-sentence motion, or in his court-ordered Rule 1925(b) statement. See

Mann, supra; Poncala, supra. In fact, this issue appears for the first time

in Appellant’s appellate brief. Because Appellant failed to raise this claim in

the trial court, it is waived for purposes of our review. Id. With respect to

Appellant’s remaining discretionary aspects of sentencing claim, Appellant

properly preserved this issue in a timely filed post-sentence motion and Rule

2119(f) statement.   Further, Appellant’s assertions that the court failed to

consider the relevant Sentencing Code criteria, including certain mitigating

factors, appears to raise a substantial question as to the discretionary

aspects of his sentence. See Riggs, supra.

      Our standard of review of a challenge to the discretionary aspects of

sentencing is as follows:


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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. 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

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.”
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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 record belies Appellant’s contentions. The court had the

benefit of a PSI report at sentencing.         Therefore, we can presume it

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).        Additionally, the court

explained its reasons for Appellant’s sentence as follows:

         In the instant matter, the [c]ourt considered the relevant
         sentencing criteria, the circumstances of the offense, and
         the rehabilitative needs of [Appellant]. First, we stated,
         that we considered the sentencing guidelines, which the
         [Commonwealth] had previously read onto the record.
         Second, we reflected that the circumstances of the
         offense, which were unusual and occurring in a short
         period of time, must be balanced with the volume of
         offenses, the seriousness of the conduct, and the danger
         to Appellant and the community. Third, we considered
         that Appellant had taken responsibility for his actions.
         Fourth, we considered Appellant’s rehabilitative needs,
         which requires us to also…examine the severity of the
         offenses and a need not to diminish these actions in the
         eyes of the public.

                                 *    *    *

         After considering the aforementioned factors, which were
         explored by [Appellant’s] counsel during [the sentencing]
         hearing, we found that the seriousness of the offense
         justified the period of incarceration given. We clearly
         stated on the record…in sufficient detail that we found
         Appellant’s crime spree troubling due to the volume of
         first[-]degree felonies and the danger his actions posed to
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         the community.      Moreover, we considered Appellant’s
         rehabilitative needs, which we stated must be balanced
         with the seriousness of the offense. Balancing these two
         considerations, among many others, we found that though
         electronic monitoring was available, it was inappropriate.
         Therefore, with sufficient specificity, we considered the
         gravity of the offense, the victims, the community,
         Appellant’s rehabilitative needs, and the availability of
         alternative sentencing, when deciding the period of
         incarceration.

(See Trial Court Opinion, filed February 16, 2017, at 4-5) (internal citations

and quotation marks omitted).          We accept the court’s analysis.         See

Hyland, supra.      Therefore, Appellant is not entitled to relief on his

preserved   challenge     to   the   discretionary   aspects   of   his   sentence.

Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/15/2017




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