J-S02045-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JESSE MICHAEL WATSON,                      :
                                               :
                       Appellant               :       No. 941 MDA 2019

         Appeal from the Judgment of Sentence Entered May 13, 2019
              in the Court of Common Pleas of Bradford County
            Criminal Division at No(s): CP-08-CR-0000291-2018

BEFORE: BENDER, P.J.E., KING, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                             FILED MARCH 27, 2020

        Jesse Michael Watson (“Watson”) appeals from the judgment of

sentence imposed following his entry of a nolo contendere plea to one count

of tampering with evidence.1 We affirm.

        Watson was arrested on March 31, 2018, following an incident at his

home in Sayre, Pennsylvania. A Sayre police officer was in the process of

issuing Watson a citation related to Watson’s unleashed dog.        During the

interaction, the officer observed Watson pick up a glass pipe that was sitting

at his feet and put it into his sweatshirt pocket. The officer instructed Watson

to remove the pipe from his pocket, and Watson refused. A scuffle ensued,

and Watson threw the pipe inside the house before closing the door behind

him. Watson was eventually arrested, his dogs were contained, and he was

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1   See 18 Pa.C.S.A. § 4910(1).
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charged with tampering, resisting arrest, possession of marijuana, escape,

and possession of drug paraphernalia following the incident.2

       On June 1, 2018, Watson filed an omnibus pre-trial Motion requesting,

in part, to suppress the physical evidence seized during the incident.       On

September 11, 2018, the trial court held a pretrial hearing, where Watson

admitted to possessing the paraphernalia.         Watson further admitted to

throwing the pipe into the house, and to shutting the door behind him. N.T.,

9/11/18, at 4-7. The trial court denied the Motion on November 13, 2018.

       On March 14, 2019, Watson entered a plea of nolo contendere, pursuant

to a plea agreement.        The trial court sentenced him to time served to 23

months, 29 days in prison, and he was immediately paroled.3 Watson filed a

timely post-sentence Motion to modify his sentence, arguing that his sentence

was excessive given his plea. The trial court denied his Motion, and this timely

appeal followed.

       Watson raises, as his sole issue, “[whether] the sentence imposed by

the [trial] court was excessive[.]” Brief for Appellant at 3. Watson challenges

the discretionary aspects of his sentence. Watson claims that the sentence

he received was outside the aggravated range of the sentencing guidelines.

Id. at 9. He argues that the 265 days in prison served prior to his sentencing
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2 See 18 Pa.C.S.A. § 4910(1); 5104; 5121(a); 35 P.S. §§ 780-113(a)(31),
(32).

3Watson’s bail was previously revoked on July 2, 2018, following an unrelated
arrest in New York. On October 30, 2018, Watson filed a Motion to reinstate
his bail for the instant offenses, which the trial court denied.

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far exceeds the aggravated range, and the trial court failed to consider

Watson’s prior record score, background, and time served in calculating its

maximum sentence. Id. at 11-12.

       We approach Watson’s argument mindful that the right to appeal a

challenge to the discretionary aspects of a sentence is not absolute.

Commonwealth v. Williams, 787 A.2d 1085, 1087 (Pa. Super. 2001).

       [T]o reach the merits of a discretionary sentencing issue, we must
       determine: (1) whether the appellant has filed a timely notice of
       appeal; (2) whether the issue was properly preserved at
       sentencing or in a motion to reconsider and modify sentence; (3)
       whether the appellant’s brief has a fatal defect, [s]ee Pa.R.A.P.
       2119(f); and (4) whether there is a substantial question that the
       sentence appealed from is inappropriate under the Sentencing
       Code, 42 Pa.C.S.A. § 9781(b).

Id. at 1087-88 (citation omitted).

       Watson’s brief substantially complies with the first three requirements.4

Therefore, we will determine whether there is a substantial question requiring

us to review the discretionary aspects of his sentence.

       “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d 526,

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4 Watson’s brief does not include a separate concise statement pursuant to
Pa.R.A.P. 2119(f). Instead, Watson incorporates his concise statement into
the argument section, and attaches the sentencing guideline forms “to satisfy
[the Rule 2119(f)] requirement.” Brief for Appellant at 9. Because the
Commonwealth has not objected to the Rule 2119(f) statement, we will
proceed to determine whether there exists a substantial question. See
Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004) (explaining
that this Court may ignore the omission of a Rule 2119(f) statement, and
proceed to the substantial question analysis, when the appellee does not
object to the omission).

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533 (Pa. Super. 2011). “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.”   Commonwealth v. Battles, 169 A.3d 1086, 1090 (Pa. Super.

2017). Merely claiming that a sentence is excessive or unreasonable does not

raise a substantial question. Commonwealth v. Hornaman, 920 A.2d 1282,

1284 (Pa. Super. 2007).

      Watson’s claim fails to raise a substantial question. Here, as Watson

recognizes, the negotiated plea agreement provided for a minimum sentence

of time served, which the trial court imposed, while the maximum sentence

was left to the trial court’s discretion. See Brief for Appellant at 11-12; see

also N.T., 5/13/19, at 3 (wherein Watson’s counsel states that the plea

agreement calls for a minimum of time served, and requests for the trial court

to follow the plea agreement and impose a short tail). As a result, Watson

has not raised a substantial question. See Commonwealth v. Dalberto,

648 A.2d 16, 21 (Pa. Super. 1994) (holding that an appellant has no authority

to challenge the discretionary aspects of an imposed sentence when a plea

agreement includes a negotiated sentence accepted and imposed by the

sentencing court); Commonwealth v. Moser, 999 A.2d 602, 606 (Pa. Super.

2010) (stating that “a nolo contendere plea has the same effect as a guilty

plea for purposes of sentencing and is considered a conviction[.]”).




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       Additionally, Watson’s maximum sentence of 23 months, 29 days falls

within the statutory maximum. See 18 Pa.C.S.A. § 4910 (1) (stating that

tampering with evidence is a misdemeanor of the second degree); 18

Pa.C.S.A. § 106(b)(7) (stating that the maximum sentence for a misdemeanor

of the second degree is two years); Commonwealth v. Kimbrough, 872

A.2d 1244, 1263 (Pa. Super. 2005) (explaining that “[w]hen the sentence is

within the range prescribed by statute, a challenge to the maximum sentence

imposed does not set forth a substantial question as to the appropriateness of

the sentence under the guidelines.”). Accordingly, Watson has not raised a

substantial question, and we cannot grant him relief on his claim.5

       Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/27/2020

____________________________________________


5 Furthermore, the trial court had the benefit of a pre-sentence investigation
report, heard Watson’s testimony during the omnibus pre-trial hearing, and
stated its reasons for imposing its sentence on the record. See N.T., 5/13/19,
at 3-5, 7-8; Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010)
(stating that, when the sentencing court had the benefit of a pre-sentence
investigation report, “[this Court] assume[s] the sentencing court was aware
of the relevant information regarding the defendant’s character and weighed
those considerations along with mitigating statutory factors.” (internal
quotations omitted)).

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