Com. v. Edwards, C. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
CASPER LESHUN EDWARDS :
: No. 629 MDA 2017
Appellant :
Appeal from the Judgment of Sentence March 20, 2017
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0001979-2007
BEFORE: LAZARUS, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY LAZARUS, J.: FILED MAY 04, 2018
Casper Leshun Edwards appeals from the judgment of sentence entered
in the Court of Common Pleas of Dauphin County. On appeal, Edwards claims
that the sentencing court abused its discretion when it sentenced him to three
to six years’ incarceration in a state correctional facility and a consecutive
term of six years’ probation for a probation violation. We affirm.
On September 15, 2018, Edwards entered in a plea of nolo contendere
to two counts of aggravated indecent assault1 (person less than 13 years old)
and two counts of unlawful contact with minors/sexual offenses.2 On January
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1 18 Pa.C.S. § 3125 (a)(7).
2 18 Pa.C.S. § 3125 (a)(1).
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22, 2009, the sentencing court sentenced Edwards to two to five years’
incarceration to be served consecutively to a term of five years’ probation.
The sentencing court also ordered as special conditions that Edwards
have no contact with the victims, undergo and cooperate with a Megan’s Law
Evaluation, follow all rules and conditions for sex offenders, including
restrictions on contact with minors, follow restrictions on computer and phone
use, and successfully complete any recommended sex offender counseling
which may include therapeutic polygraph tests.
On March 20, 2017, Edwards appeared before the trial court for a
revocation hearing. At the hearing, John Allen Welsh, a psychotherapist with
the Commonwealth Clinical Group, testified that he worked with Edwards for
several years. Welsh testified that in May 2015, Edwards was unsuccessfully
discharged, for the first time, due to six consecutive unexcused absences from
his therapy sessions that were missed for various reasons. However, the
Dauphin County Office of Probation provided funding for Edwards to return to
treatment on June 11, 2015, and remain in compliance with the sentencing
court’s special conditions.
In November 2016, Edwards began to miss approximately one-third of
his weekly therapy sessions, and he did not provide a reason for the absences
to his therapists. Although Edwards claims that he missed the therapy
sessions because he had a stroke in September 2016, he provided no evidence
of medical treatment for the missed sessions in November and December of
2016. Edwards was unsuccessfully discharged, for the second time, on
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December 20, 2016 due to his absences. Additionally, Edwards had not
completed a therapeutic polygraph test since June 2015 because of his
absences from therapy. The sentencing court found Edwards to be in violation
of the conditions of his probation, revoked his prior sentences, and
resentenced him to three to six years’ incarceration and a consecutive term
of six years’ of probation.
On March 30, 2017, Edwards filed a timely motion to modify sentence
pursuant to Pa.R.Crim.P. 720. On April 6, 2017, Edwards filed a timely notice
of appeal.3 On May 1, 2017, Edwards filed a concise statement of errors
complained of on appeal pursuant to Pa.R.C.P. 1925(b).
Edwards raises one issue for our review:
Whether the trial court abused its discretion when it denied
[Edwards’] petition to modify sentence where [Edwards’]
aggregate sentence of 3 to 6 years’ followed by 6 years’ of state
probation was excessive in light of lack of other probation
violations and [Edwards’] rehabilitative needs?
Brief of Appellant, at 6.
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3 Due to Edwards filing a notice of appeal before the sentencing court issued
a decision on his motion to modify sentence, on May 19, 2017, this Court
directed Edwards to show cause why the instant appeal should not be
dismissed as premature pursuant to Pa.R.Crim.P. 720 (no direct appeal may
be filed while post-sentence motion is pending). On May 22, 2017, Edwards
responded to the show-cause order, stating that because his appeal followed
the revocation of probation, the appeal is governed by Pa.R.Crim.P 708(E)
(filing of motion to modify sentence after revocation of probation will not toll
30-day appeal period). On June 2, 2017, this Court vacated the show-cause
order and Edwards’ appeal is considered timely.
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Edwards challenges the discretionary aspects of his sentence. Before
this court can address such a challenge, Edwards must comply with the
following four-part test:
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 the 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.
Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011).
Instantly, Edwards filed a timely notice of appeal and preserved his
issues in a motion to modify sentence. Additionally, Edwards’ brief includes a
statement of reasons relied on for allowance of appeal with respect to the
discretionary aspects of his sentence pursuant to Pa.R.A.P 2119(f). See
Appellant’s Brief at 9. We must now determine whether Edwards’ claim
presents a substantial question.
Whether a challenge to a sentence amounts to a substantial question is
determined on a case-by-case basis. A substantial question exists only when
the appellant advances a plausible argument that the sentencing judge’s
actions were either inconsistent with a specific provision of the Sentencing
Code or were contrary to the fundamental norms which underlie the
sentencing process. Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super.
2011).
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When imposing a sentence, the sentencing court must follow the general
principles that the sentence imposed should call for “confinement that is
consistent with the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant.” 42 Pa.C.S.A § 9721(b).
A claim that the sentencing court failed to consider the defendant’s
rehabilitative needs, and that the sentence was manifestly excessive, does not
raise a substantial question. Commonwealth v. Coolbaugh, 770 A.2d 788,
793 (Pa. Super. 2001). However, a defendant may raise a substantial
question where he claims that the sentence is manifestly excessive such that
it constitutes too severe a punishment if he articulates the manner in which
the sentence is inconsistent with the Sentencing Code, or is contrary to its
norms. Commonwealth v. Mouzon, 812 A.2d 617, 624-25 (Pa. 2002).
Additionally,
In determining whether a substantial question exists, this court
does not examine the merits of whether the sentence is actually
excessive. Rather, we look to whether the appellant has
forwarded a plausible argument that the sentence, when it is
within the guideline ranges, is clearly unreasonable.
Concomitantly, the substantial question determination does not
require the court to decide the merits of whether the sentence is
clearly unreasonable.
Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013).
Here, Edwards asserts that the sentence imposed by the sentencing
court is manifestly excessive such that it constitutes too severe a punishment
in light of his rehabilitative needs. However, Edwards submitted his Rule
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2119(f) statement without including an argument supporting his claim, and
only set forth pronouncements of conclusions of law. See Commonwealth
v. Kelly, 33 A.3d 683, 640 (Pa. Super. 2011) (where appellant’s brief is devoid
of argument on claim that sentence is manifestly excessive such that it
constitutes too severe punishment, claim is waived). See also
Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000), quoting
Commonwealth v. Martin, 727 A.2d 1136, 1143 (Pa. Super. 1999) (when
Rule 2119(f) statement “contains incantations of statutory provisions and
pronouncements of conclusions of law” it is inadequate). Therefore, Edwards
did not raise a substantial question so as to permit review of the discretionary
aspects of his sentence.4
Judgment of sentence affirmed.
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4 Even if Edwards had raised a substantial question, the sentencing court did
not abuse its discretion when it sentenced Edwards, and therefore, the
judgment of sentence would still be affirmed. The sentencing court is granted
broad discretion, as it is in the best position to determine the proper penalty
for the offense. Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2017).
Additionally, Edwards did not establish that the sentencing court arrived at a
manifestly unreasonable decision because the sentencing court considered his
lack of prior violations and all rehabilitative factors during sentencing. The
sentencing court concluded that Edwards did not take his probation seriously
when he failed to attend four consecutive therapy sessions, and missed thirty-
three percent of his total therapy sessions. N.T. Resentencing, 3/20/17, at
17.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/2018
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