Com. v. Mudge, R. ( 2019 )

J-S09016-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD WESLEY MUDGE :
:
Appellant : No. 731 WDA 2018
Appeal from the Judgment of Sentence May 8, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0004022-2012
BEFORE: PANELLA, P.J., LAZARUS, J., and STRASSBURGER*, J.
MEMORANDUM BY LAZARUS, J.: FILED MARCH 25, 2019
Richard Wesley Mudge appeals from his judgment of sentence, entered
in the Court of Common Pleas of Allegheny County, following his third violation
of probation. In 2012, Mudge originally entered a nolo contendere plea to
indecent assault,1 two counts of simple assault,2 resisting arrest,3 defiant
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 3126(a)(2).
2 18 Pa.C.S.A. § 2701.
3 18 Pa.C.S.A. § 5104.
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trespass,4 harassment,5 criminal mischief,6 and public drunkenness.7 On
appeal, Mudge challenges the discretionary aspects of his sentence. After
careful review, we affirm.
After Mudge pleaded guilty to the above-mentioned charges, the trial
court sentenced him to three months’ intermediate punishment and a
consecutive term of two years’ probation for indecent assault and two years’
probation concurrent with the indecent assault sentence for both simple
assault convictions. On January 27, 2014, Mudge’s first violation of probation
resulted from a new conviction for disorderly conduct8 on December 11, 2013.
On November 14, 2016, his second violation of probation resulted from guilty
pleas in two new convictions, namely: (1) on February 18, 2016, Mudge
pleaded guilty for failure to register with the State Police as required by
Megan’s Law for his 2012 indecent assault conviction, in violation of 18
Pa.C.S.A. § 4915; and (2) on September 21, 2016, Mudge pleaded guilty to
forgery, in violation of 18 Pa.C.S.A. § 4101(a)(3).
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4 18 Pa.C.S.A. § 3503(b)(1)(i).
5 18 Pa.C.S.A. § 2709.
6 18 Pa.C.S.A. § 3304(a)(5).
7 18 Pa.C.S.A. § 5505.
8 18 Pa.C.S.A. § 5503(a)(4).
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On May 7, 2018, the trial court revoked Mudge’s probation for the third
time. The trial court found that Mudge engaged in conduct that violated the
terms of his 2012 plea deal supervision including failing to refrain from the
use of illicit drugs, provide urine screens to New Beginnings, participate in
drug and alcohol treatment and comply with the terms of his Justice Related
Services plan.9 The court subsequently sentenced Mudge to an aggregate
sentence of three years and six months’ to seven years’ incarceration, followed
by two years’ probation. Mudge timely filed a notice of appeal on May 21,
2018, and thereafter, a Pa.R.A.P. 1925(b) concise statement of errors
complained on appeal.
On appeal, Mudge raises the following issue for our consideration:
Whether the [c]ourt erred in denying [Mudge’s] post-sentence
motion when the record shows that the [c]ourt abused its
discretion by sentencing [Mudge] without proper consideration of
numerous mitigating factors, including [Mudge’s] drug and alcohol
addiction and rehabilitative efforts, history of maintaining gainful
employment, and participation and compliance with mental health
and sex offender treatment.
Brief of Appellant, at 3.
In his sole issue on appeal, Mudge challenges the discretionary aspects
of his sentence. Mudge argues the sentencing court failed to consider
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9 New Beginnings is a three-quarter sober living facility in Allegheny County
that provides a stable living environment for those with substance abuse
disorders. JRS works with the Allegheny County Jail, courts, behavioral health
and other community service providers to assist persons with mental illness
and/or concomitant mental illness and substance use disorders who encounter
the criminal justice system.
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mitigating factors, including his substance abuse disorders, rehabilitation,
employment history, and mental health and sex offender treatment.
Before we may reach the merits of Mudge’s appeal, we must first
determine if his claim invokes this Court’s jurisdiction. Challenges to the
discretionary aspect of sentencing do not entitle a petitioner to review as of
right. Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011). An
appellant must comply with the following four-part test:
(1) whether appellant has timely filed 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 or modify
sentence, see Pa.R.Crim.P. 720; (3) whether apellant’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.
Id. Presently, Mudge has filed a timely notice of appeal and preserved his
issue in a post-sentence motion. Further, Mudge’s brief includes a concise
statement of reasons relied upon for allowance of appeal with respect to the
discretionary aspects of his sentence pursuant to Rule 2119(f).
Finally, we must determine whether Mudge has presented a substantial
question. We conclude that he has not. In his Rule 2119(f) statement, Mudge
claims the sentence raises a substantial question because “by focusing solely
on the sex offense program, the [c]ourt violated fundamental norms of the
sentencing process and ignored mitigating factors.” Brief of Appellant, at 11.
This Court has consistently held “a claim that the sentencing court failed to
consider or accord proper weight to a specific sentencing factor does not raise
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a substantial question.” Commonwealth v. Berry, 785 A.2d 994, 996-97
(Pa. Super. 2001). Likewise, this Court has held on numerous occasions that
a “claim of inadequate consideration of mitigating factors does not raise a
substantial question for our review.” Commonwealth v. Disalvo, 70 A.3d
900, 903 (Pa. Super. 2013). Accordingly, Mudge’s claim fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/25/2019
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