J-S24013-18 & S24014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
            v.                         :
                                       :
                                       :
 ANTHONY MICHAEL CONSEAL               :
                                       :
                   Appellant           :   No. 1891 MDA 2017

         Appeal from the Judgment of Sentence October 30, 2017
    In the Court of Common Pleas of Union County Criminal Division at
                     No(s): CP-60-CR-0000075-2017


 COMMONWEALTH OF PENNSYLVANIA         :    IN THE SUPERIOR COURT OF
                                      :         PENNSYLVANIA
                                      :
              v.                      :
                                      :
                                      :
   ANTHONY CONSEAL                    :
                                      :
                    Appellant         :    No. 1892 MDA 2017

     Appeal from the Judgment of Sentence Entered October 30, 2017
    In the Court of Common Pleas of Union County Criminal Division at
                     No(s): CP-60-CR-0000311-2016

BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.:                           FILED JULY 13, 2018

     Appellant, Anthony Michael Conseal, appeals from the judgments of

sentence entered on October 30, 2017, as made final by the denial of his
J-S24013-18 & J-S24014-18



post-sentence motions on November 8, 2017, following his guilty plea to two

counts of forgery.1 We affirm.

       We summarize the facts and procedural history of this case as follows.

On July 29, 2016, police responded to a telephone call from the branch

manager at the West Milton State Bank in Mifflinburg, Pennsylvania. Appellant

attempted to cash a check made out to him from B & W Disposal. Two other

men were with Appellant and they attempted to cash purported checks from

B & W Disposal. When the bank teller became suspicious and attempted to

contact to B & W Disposal, Appellant and the other men left the bank. The

Commonwealth charged Appellant with the two aforementioned crimes, as

well as identity theft and conspiracy.2

       Prior to trial, Appellant and the Commonwealth entered into plea

negotiations. Appellant agreed to plead guilty to the two counts of forgery in

exchange for the withdrawal of the remaining charges. The plea agreement

also set forth the perimeters of Appellant’s potential sentences. Specifically,

the parties agreed to two concurrent standard-range sentences, not exceeding
____________________________________________


1    18 Pa.C.S.A. §§ 4101(a)(1) and 4101(a)(3), respectively.              The
Commonwealth charged Appellant with these two crimes at two different trial
court docket numbers, which resulted in two separate sentencing orders and
two separate appeals. Because the trial court held a guilty plea and
sentencing hearing and Appellant currently challenges the overall, aggregate
sentence imposed, we sua sponte consolidate the two appeals pursuant to
Pa.R.A.P. 513 (“Where there is more than one appeal from the same order, or
where the same question is involved in two or more appeals in different cases,
the appellate court may, in its discretion, order them to be argued together in
all particulars as if but a single appeal.”).

2   18 Pa.C.S.A. §§ 4120 and 903, respectively.

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a maximum of seven years. The parties also agreed that these sentences

were to run consecutively to any other sentence Appellant was serving at the

time.

        On October 5, 2017, Appellant pled guilty to the two counts of forgery

as set forth above. On October 30, 2017, the trial court sentenced Appellant

in accordance with the plea agreement to an aggregate sentence of 12 months

minus one day to seven years of incarceration, consecutive to a sentence from

Montgomery County that Appellant was then serving. The trial court further

determined Appellant was eligible for the Recidivism Risk Reduction Incentive

(RRRI) program. Appellant filed timely post-sentence motions on November

6, 2017. The trial court denied relief by orders entered on November 8, 2017.

These timely appeals resulted.3

        On appeal, Appellant presents the following issue for our review:

        1. Did the [t]rial [c]ourt commit error in sentencing Appellant to
           the upper end of the standard range [of the sentencing
           guidelines]?

Appellant’s Brief at *6 (unpaginated).

        Appellant claims that the trial court’s sentences were unreasonable. Id.

at *9 (unpaginated). Initially, “Appellant understands the very difficult burden

that he faces here” in showing that he raises a substantial question to

____________________________________________


3  Appellant filed notices of appeal on December 7, 2017. On the same date,
the trial court ordered Appellant to file concise statements of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely on December 27, 2017. The trial court issued opinions pursuant to
Pa.R.A.P. 1925(a) on January 18, 2018.

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implicate our appellate review of a discretionary aspect of sentencing by the

trial court. Id. at *10 (unpaginated). Thereafter, in sum, Appellant argues

that

       it is readily apparent from the nature of the charges that they are
       not violent. At sentencing, it was undisputed that Appellant would
       owe restitution, that repayment would be complicated by further
       incarceration. With due respect to the [t]rial [c]ourt, the sentence
       imposed herein results only in a delay in the payment of restitution
       with no noticeable gain to the Commonwealth or the community
       at large.

Id.

       Initially,   we   note   that   “a    guilty   plea   which   includes sentence

negotiation ordinarily precludes a defendant from contesting the validity of his

or her sentence other than to argue that the sentence is illegal or that the

sentencing court did not have jurisdiction[.]” Commonwealth v. Tirado, 870

A.2d 362, 365 n.5 (Pa. Super. 2005) (emphasis in original); see also

Commonwealth v. Dalberto, 648 A.2d 16, 21 (Pa. Super. 1994) (“[W]e will

allow an appeal only as to those discretionary aspects of sentencing which

have not been agreed upon during the negotiation process.”).

       Here, upon review of the record, we conclude that the trial court

sentenced Appellant within the confines of his negotiated plea agreement. The

plea agreement called for two standard-range, concurrent sentences not

exceeding an aggregate maximum of seven years of imprisonment, to run

consecutively to any other sentence Appellant was already serving. The trial

court sentenced Appellant to serve concurrent sentences of 12 months minus



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J-S24013-18 & J-S24014-18



one day to seven years of incarceration, consecutive to any sentence from

Montgomery County that Appellant was then serving.         Each sentence was

within the standard-range of the sentencing guidelines. Because Appellant

received negotiated sentences, he is precluded from challenging their validity

except to argue illegality or lack of jurisdiction. Appellant does not contend

that his sentences are illegal or the trial court lacked jurisdiction to impose

them. Further, Appellant does not contest the validity of his guilty pleas.

      Instead, Appellant challenges the discretionary aspects of his sentences,

arguing that although he agreed to standard-range sentences, the trial court

unreasonably imposed sentences in the “top end of the standard range.”

Appellant’s Brief at *8 (unpaginated).

      This Court has previously determined:

      It    is    well-settled    that     the    right    to    appeal
      a discretionary aspect of sentence is not absolute. Rather, where
      an appellant challenges the discretionary aspects of a sentence,
      an appellant's appeal should be considered as a petition for
      allowance of appeal.

      An      appellant    challenging     the discretionary aspects of
      his sentence must invoke this Court's jurisdiction by satisfying a
      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 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).



                                     -5-
J-S24013-18 & J-S24014-18


      Whether         a        particular      issue      constitutes
      a substantial question about the appropriateness of sentence is
      a question to be evaluated on a case-by-case basis.

                           *           *            *

      We have found that a substantial question exists 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. We
      cannot look beyond the statement of questions presented and the
      prefatory Rule 2119(f) statement to determine whether
      a substantial question exists.

      It is settled that this Court does not accept bald assertions
      of sentencing errors. When we examine an appellant's Rule
      2119(f)        statement        to     determine        whether
      a substantial question exists, our inquiry must focus on the
      reasons for which the appeal is sought, in contrast to the facts
      underlying the appeal, which are necessary only to decide the
      appeal on the merits. A Rule 2119(f) statement is inadequate
      when it contains incantations of statutory provisions and
      pronouncements of conclusions of law.

Commonwealth v. Radecki, 180 A.3d 441, 467–468 (Pa. Super. 2018)

(internal citations and most quotations omitted).

      Although he points out that the offenses were non-violent and

incarceration may delay repayment of restitution, Appellant fails to raise a

substantial question to implicate our review. Appellant does not specify how

his sentences are inconsistent with a specific provision of the sentencing code.

Instead, he concedes that he received sentences in the standard-range of the

sentencing guidelines. Further, Appellant fails to show that his sentences were

contrary to the fundamental norms which underlie the sentencing process,

since the trial court entered the sentences in accordance with the plea



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J-S24013-18 & J-S24014-18



agreement. Appellant does not challenge the validity of the plea agreement

or otherwise argue that the trial court failed to abide by it. Because Appellant

failed to raise a substantial question, we deny Appellant’s petition for

allowance of appeal challenging the imposition of his sentences.

      Judgments of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/13/18




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