J-S68028-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA, :           IN THE SUPERIOR COURT OF
                                  :                 PENNSYLVANIA
                                  :
                                  :
                   v.             :
                                  :
    JAYE ASHBY GIBSON,            :
                                  :
                      Appellant                No. 234 MDA 2017

           Appeal from the Judgment of Sentence January 3, 2017
            in the Court of Common Pleas of Lackawanna County,
               Criminal Division at No. CP-35-CR-0001967-2016

BEFORE: LAZARUS, DUBOW, and STRASSBURGER,* JJ.

CONCURRING MEMORANDUM BY STRASSBURGER, J.: FILED MAY 18, 2018

       I join the Majority’s holding that, under the circumstances of this case,

Appellant has failed to establish that his sentencing claims warrant relief from

this Court. I write separately to express my disquiet about the nebulous and

inconsistent categorization of an issue as one that does or does not raise a

substantial question.1




1 Furthermore, although I am not concerned with the trial court’s discretion in
this case, as I previously noted in Commonwealth v. Zirkle, I continue to
remain troubled by “the fact that our review of a trial court’s sentencing
discretion in general, and its decision to impose consecutive or concurrent
sentences in particular, is treated differently than our review of any other
exercise of a trial court’s discretion.” 107 A.3d 127, 134 (Pa. Super. 2014)
(Strassburger, J., dissenting). I believe that the mandate our law has
established, which allows this Court to review the imposition of consecutive
versus concurrent sentences only after the petitioner meets the hurdles set
forth in 2119(f), instead of allowing this Court to “consider whether the record
establishes any [] signs of discretionary abuse[,]” results in the unequal
*Retired Senior Judge assigned to the Superior Court.
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      As this Court has recognized,

      this Court’s determination of whether an appellant has presented
      a substantial question in various cases has been less than a model
      of clarity and consistency[.]       Compare Commonwealth v.
      Montalvo, [641 A.2d 1176, 1186 (Pa. Super 1994)] (“allegation
      that the sentencing court ‘failed to consider’ or ‘did not adequately
      consider’ facts of record” does not present substantial question);
      Commonwealth v. Rivera, [637 A.2d 1015, 1016 (Pa. Super.
      1994)] (same); Commonwealth v. Nixon, 718 A.2d 311, 315
      (Pa. Super. 1998), overruled on other grounds by
      Commonwealth v. Mouzon, [812 A.2d 617 (Pa. 2002)]
      (“ordinarily, allegations that a sentencing court ‘failed to consider’
      or ‘did not adequately consider’ various factors” does not raise a
      substantial question)[.] … with Commonwealth v. Boyer, 856
      A.2d 149, 151–152 (Pa. Super. 2004) (finding substantial
      question where defendant argued “that his sentence was
      manifestly excessive and that the court erred by considering only
      the serious nature of the offenses and failing to consider
      mitigating factors such as his age (19) at sentencing, his
      rehabilitative needs, his limited education, his years of drug
      dependency, and his family dysfunction.”); Commonwealth v.
      Perry, 883 A.2d 599, 602 (Pa. Super. 2005) (failure to consider
      mitigating factors and excessive sentence raised substantial
      question); Commonwealth v. Ventura, 975 A.2d 1128, 1133
      (Pa. Super. 2009) (“Ventura further asserts that the trial court
      imposed his sentence based solely on the seriousness of the
      offense and failed to consider all relevant factors, which has also
      been found to raise a substantial question.”); Commonwealth v.
      Downing, 990 A.2d 788, 793 (Pa. Super. 2010) (failure to
      consider rehabilitative needs and the protection of society in
      fashioning a sentence raises a substantial question).

Commonwealth v. Dodge, 77 A.3d 1263, 1272 n.8 (Pa. Super. 2013).

      Indeed, despite the passage of time, this Court has continued to struggle

with defining what claims raise substantial questions and often it is only




treatment of defendants, and oftentimes, the allowance of a trial court to have
unfettered discretion during sentencing. Id. at 135.

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minute distinctions that separate those claims that are deemed reviewable

versus those that are not. Compare Commonwealth v. Zeigler, 112 A.3d

656, 662 (Pa. Super. 2015) (“Generally, a bald excessiveness claim does not

raise a substantial question.”) with Commonwealth v. Haynes, 125 A.3d

800, 807–08 (Pa. Super. 2015) (“While a bald claim of excessiveness does

not present a substantial question for review, a claim that the sentence is

manifestly excessive, inflicting too severe a punishment, does present a

substantial question.”).

      This practice has resulted in the inconsistent grant or denial of the

review of sentencing claims based upon which contradictory precedent a panel

decides to apply. Because of this, I am of the opinion that every criminal

defendant, who preserves a sentencing issue for appeal, has the constitutional

right to have this Court decide the merits of the claim. See Zirkle, 107 A.3d

at 135 (Strassburger, J., dissenting) (“Indeed, not only is the disparate

treatment of sentencing discretion unwarranted and unreasonable, it is also

at odds with our Constitution. Under Article V, Section 9 of the Pennsylvania

Constitution, an accused has an absolute right to appeal. However, under 42

Pa.C.S. § 9781 and Pa.R.A.P. 2119(f), this Court is permitted to grant

allowance of appeal to review the discretionary aspects of a sentence only if

we, in our discretion, find that the appellant filed the appropriate statement

raising ‘a substantial question that the sentence imposed is not appropriate’

under the Sentencing Code. …      Section 9781(b) clearly infringes upon a


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defendant’s absolute right to an appeal.”)   (some quotation marks and

citations omitted).




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