J-S47041-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MICHAEL B. LINDGREN

                            Appellant                 No. 509 EDA 2014


        Appeal from the Judgment of Sentence of November 27, 2013
           In the Court of Common Pleas of Northampton County
             Criminal Division at No.: CP-48-CR-0003904-2012


BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                        FILED SEPTEMBER 08, 2014

       Michael Lindgren appeals the November 27, 2013 judgment of



1925(a) opinion, and we affirm.

       On August 23, 2013, Lindgren appeared before the trial court with the

intent to plead guilty but mentally ill to one count of third-degree murder

(18 Pa.C.S. § 2502(c)) and one count of aggravated assault              causing

serious bodily injury (18 Pa.C.S. § 2702(a)(1)). Before accepting the plea,

the trial court conducted a hearing to determine, pursuant to 18 Pa.C.S. §

314(b),1 whether Lindgren in fact was mentally ill, and not criminally insane.
____________________________________________


1
       Section 314(b) provides as follows:

       (b) Plea of guilty but mentally ill. A person who waives his
       right to trial may plead guilty but mentally ill. No plea of guilty
(Footnote Continued Next Page)
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At the conclusion of the hearing, the trial court determined that Lindgren

suffered from a mental illness at the time of the commission of his crimes.2

The trial court then conducted a comprehensive guilty but mentally ill plea

colloquy with Lindgren.        During the hearing, the assistant district attorney

summarized the facts underlying the plea as follows:

      On August 21, 2012 in the early evening hours City of
      Bethlehem police officers were summoned to 209 East Wall
      Street, City of Bethlehem, Northampton County, on an alarm.
      When they arrived . . . [within minutes] they found
      [Lindgren] . . . on the front lawn. He was covered with blood.



      They entered the dark house and upon entering the dark house
      they found his mother, Shirley Lindgren, she was in a pool of
                                      s] father, Ralph Lindgren, also
      covered with blood. They responded with CPR and emergency
                       _______________________
(Footnote Continued)

      but mentally ill may be accepted by the trial judge until he has
      examined all reports prepared pursuant to the Rules of Criminal
      Procedure, has held a hearing on the sole issue of the

      evidence and is satisfied that the defendant was mentally ill at
      the time of the offense to which the plea is entered. If the trial
      judge refuses to accept a plea of guilty but mentally ill, the
      defendant shall be permitted to withdraw his plea. A defendant
      whose plea is not accepted by the court shall be entitled to a
      jury trial, except that if a defendant subsequently waives his
      right to a jury trial, the judge who presided at the hearing on
      mental illness shall not preside at trial.

18 Pa.C.S. § 314(b).
2
      In its Rule 1925(a) opinion, the trial court provided a detailed
summary of the evidence presented at the section 314(b) hearing. See Trial
Court Opinion, 4/2/2014, at 4-8. Because we adopt that opinion herein, we
need not reproduce that material.



                                            -2-
J-S47041-14


      medicine. Shirley Lindgren was ultimately taken to the hospital
      and pronounced dead. Ralph Lindgren was taken to the hospital
      and treated.

      [A subsequent] autopsy of Shirley Lindgren determined that she
      died of blunt force trauma. The evidence would show that the
      blunt force trauma came from a prolonged beating by [Lindgren]
      using his hands and feet . . . . The same would hold true with
      respect to Ralph Lindgren. He suffered a prolonged beating from
      [his son Lindgren.] . . . Mr. Lindgren suffered multiple to his
      all parts of his body, the most significant of which was a
      prolonged subdural hematoma and profuse bleeding on the
      brain.

Notes of Testimony, 8/23/2013, at 21-23. At the conclusion of the hearing,



      On November 27, 2013, the trial court sentenced Lindgren to twenty

                                          -degree murder charge, and to five



consecutively, these standard range sentences resulted in an aggregate

twenty-five to sixty year prison term. On December 9, 2013, Lindgren filed

a post-sentence motion for reconsideration of his sentence. On January 10,



      On February 10, 2014, Lindgren filed a notice of appeal. In response,

the trial court directed Lindgren to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).       On February 28,

2014, Lindgren timely filed a concise statement. Finally, on April 2, 2014,

the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).

      Presently, Lindgren raises the following two questions for our review:




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J-S47041-14


      A. Whether the trial court improperly considered evidence
         outside of the record for the purpose of sentencing [Lindgren]
         when the trial court introduced and considered the obituary of
         the decedent?

      B. Whether the trial court abused its discretion by imposing
         sentences that are the maximum sentences that could be
         imposed upon [Lindgren] without deviating into an

         long term mental illness, which had been previously accepted
         by the trial court at the time of the guilty, but mentally ill,
         plea?

Brief for Lindgren at 5.



sentence.   In evaluating such claims, our review is governed by the legal

principles that follow.

      Challenges      to   the   discretionary   aspects of sentencing are not

reviewable as of right. Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa.

Super. 2000). Rather, an appellant challenging the discretionary aspects of

his or her sentence must satisfy the following four-part test:

      [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
      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. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (some

citations omitted).




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J-S47041-14



       Thus, to obtain review of the merits of a challenge to the discretionary

aspects of his sentence, Lindgren must include a Pa.R.A.P. 2119(f)3

statement in his brief demonstrating that he has raised a substantial

question that the sentence imposed is not appropriate under the Sentencing

Code. 42 Pa.C.S. § 9781(b). A substantial question requires a showing that



set forth in the Sentencing Code or a particular fundamental norm

                                               Commonwealth v. Tirado, 870 A.2d



which the appeal is sought, in contrast to the facts underlying the appeal,

                                                                   Id.

       Once an appellant has presented a substantial question, we employ

the following standard of review:


____________________________________________


3
       In pertinent part, Rule 2119 provides:

       An appellant who challenges the discretionary aspects of a
       sentence in a criminal matter shall set forth in his brief a concise
       statement of the reasons relied upon for allowance of appeal
       with respect to the discretionary aspects of a sentence. The
       statement shall immediately precede the argument on the merits
       with respect to the discretionary aspects of sentence.

Pa.R.A.P. 2119(f). Lindgren has preserved his issues in his post-sentence
motion. Moreover, Lindgren has included a Rule 2119(f) statement in his
brief. See Brief for Lindgren at 10. Accordingly, Lindgren has complied with
the technical requirements necessary to present a challenge to the
discretionary aspects of his sentence.



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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. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).

Additionally, our review of the discretionary aspects of a sentence is confined

by the statutory mandates of 42 Pa.C.S. §§ 9781(c) and (d).         Subsection

9781(c) provides:

      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. § 9781(c).

      In reviewing the record, we consider the following factors:

      (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.


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

      (4)     The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

      We have reviewed these governing principles in light of the arguments

presented by Lindgren and the Commonwealth.               Moreover, we have

                                                      -reasoned Rule 1925(a)

opinion. In the opinion, which exceeds forty pages, the trial court reviewed

the statutory provisions governing guilty but mentally ill pleas, the applicable

case law pertaining to challenges to the discretionary aspects of a sentence,



cited at length the relevant portions of the transcripts that support the



mentally ill evaluation hearing, the guilty but mentally ill plea hearing, and

the sentencing proceeding.          The court detailed the information that it

considered before imposing the sentence, and the weight that the court

assigned to that material. Based upon our review, we agree with the trial



substantial   question   analysis    and   the   co



conclude that the trial court did not abuse its sentencing discretion. A copy



      Judgment of sentence affirmed.




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J-S47041-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/8/2014




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