J-S23005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

KENNETH WENDELL OLSWFSKI

                            Appellant                 No. 2684 EDA 2015


               Appeal from the Judgment of Sentence July 17, 2015
              In the Court of Common Pleas of Northampton County
               Criminal Division at No(s): CP-48-CR-0003162-2014


BEFORE: PANELLA, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                                FILED MAY 19, 2016

        Appellant, Kenneth Wendell Olswfski, appeals from the judgment of

sentence entered by the Honorable F.P. Kimberly J. McFadden, Northampton

County Court of Common Pleas. We affirm.

        The trial court summarized the relevant factual and procedural history

as follows.

        On January 20, 2011, Defendant was sentenced to four (4) to
        twenty-three (23) months on the charge of theft as a felony of
        the third degree, to be followed by four years of probation. On
        December 23, 2014, Defendant was sentenced to sixty (60)
        months of county intermediate punishment in the TCAP Program
        on the charge of robbery as a felony of the third degree.

        On July 17, 2015, Defendant was brought before the Court for a
        probation violation hearing. Defendant’s probation officer
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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      testified that Defendant failed to comply with drug and alcohol
      counseling, failed to comply with the TCAP Program
      requirements, failed to make regular payments on costs and
      restitution, and violated by getting new charges. Defendant’s
      probation on the theft and robbery charges was revoked and he
      was re-sentenced to eighteen (18) to thirty-six (36) months in
      state prison on each charge, to be run concurrently.

Trial Court Opinion, at 1.

      Olswfski filed a post-sentence motion for reconsideration, but the trial

court did not rule on it. This timely appeal followed.

      On appeal, Olswfski challenges the discretionary aspects of his

sentence and contends that the trial court imposed a manifestly excessive

sentence. Specifically, Olswfski argues that the trial court failed to

adequately consider certain mitigating factors and imposed a sentence

“based only upon the perceived seriousness of the offense to the exclusion

of all other relevant facts….” Appellant’s Brief, at 7. Moreover, Olswfski

asserts that the trial court erred in sentencing him to state prison, rather

than allowing him to remain in county prison and obtain work release, or in

the alternative, allowing him to enroll in the Drug Court Program or TCAP

Program. See id., at 8, 12-13.

      We   start   our   analysis   by   noting   that   “issues   challenging   the

discretionary aspects of a sentence must be raised in a post-sentence

motion or by presenting the claim to the trial court during the sentencing

proceedings.” Commonwealth v. Shugars, 895 A.2d 1270, 1273-1274

(Pa. Super. 2006) (citation omitted). Without such efforts, an objection to a

discretionary aspect of a sentence is waived. See id., at 1274. “When


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challenging the discretionary aspects of the sentence imposed, an appellant

must present a substantial question as to the inappropriateness of the

sentence.” Id. A “substantial question” as to the inappropriateness of the

sentence under the Sentencing Code 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.” Commonwealth v. Glass, 50 A.3d 720, 727 (Pa. Super. 2012)

(citations omitted). “An appellant must, pursuant to Pennsylvania Rule of

Appellate Procedure 2119(f), articulate the manner in which the sentence

violates either a specific provision of the sentencing scheme set forth in the

Sentencing Code or a particular fundamental norm underlying the sentencing

process.” Shugars, 895 A.2d at 1274 (citation and internal quotations

omitted).

       Here, Olswfski raised the issues presented on appeal in his post-

sentence motion. However, he failed to raise a substantial question subject

to our review. In his Rule 2119(f) statement,1 Olswfski does not challenge a

specific provision of the Sentencing Code or cite a particular fundamental



____________________________________________


1
  We acknowledge the Commonwealth’s objection to the form of Olswfski’s
Rule 2119(f) statement; however, we decline to find Olswfski’s arguments
waived simply because he failed to separate his Rule 2119(f) statement from
the remainder of his argument section.



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norm underlying the sentencing process that he believes was violated.

Instead, he merely asserts as follows.

      The court has imposed a manifestly excessive sentence without
      considering that Defendant was compliant with supervision until
      being involved in a serious car accident. The result of actions by
      the court is inconsistent with the sentencing code and contrary
      to the fundamental norms underlying the sentencing process.
      The sentence therefore cannot stand.

Appellant’s Brief, at 13.

      This bald assertion of excessiveness is insufficient to present a

substantial question. See Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa.

Super. 2012); Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super.

2010) (“As to what constitutes a substantial question, this Court does not

accept bald assertions of sentencing errors. An appellant must articulate the

reasons the sentencing court’s actions violated the sentencing code.”)

(citation omitted). Moreover, Olswfski’s assertion that the trial court erred by

failing to adequately consider certain mitigating factors, such as his prior

compliance with supervision, does not present a substantial question. See

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014)

(en banc). Finally, although Olswfski’s claim that the trial court erred by

sentencing him to serve his time in state prison, rather than in a county

facility, may have presented a substantial question, he failed to cite a

particular provision of the Sentencing Code for which he claims the trial

court violated. Consequently, Olswfski has failed to invoke our jurisdiction,

and we cannot review the merits of his sentencing claim. See Moury, 992


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A.2d at 170; Commonwealth v. Hartle, 894 A.2d 800, 806 (Pa. Super.

2006).

     Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/19/2016




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