Com. v. Hubbard, A., III ( 2017 )

J. S01023/17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AMOS RUSSELL HUBBARD III, :
:
Appellant : No. 918 MDA 2016
Appeal from the Judgment of Sentence August 14, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No.: CP-22-CR-0000174-2015
BEFORE: GANTMAN, P.J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY DUBOW, J.: FILED JANUARY 31, 2017
Appellant, Amos Russell Hubbard III, appeals from the Judgment of
Sentence entered August 14, 2015, in the Court of Common Pleas of
Dauphin County. After careful review, we find that Appellant failed to raise a
substantial question that his sentence was not appropriate under the
Sentencing Code as required to invoke this Court’s jurisdiction to review the
discretionary aspects of Appellant’s sentence. Therefore, we affirm.
The relevant facts and procedural history of this case are as follows.
On August 14, 2015, Appellant entered an open guilty plea to one count of
Robbery, a felony of the second degree.1 The charges stemmed from
Appellant’s October 2, 2014 robbery of a financial institution using a demand
1
18 Pa.C.S. § 3701(a)(1)(vi).
J. S01023/17
note to take $1,105 from a teller at the First National Bank in Dauphin
County. The trial court sentenced Appellant to a term of 18 to 60 months’
incarceration.
Appellant filed a timely Post-Sentence Motion to Modify Sentence on
August 25, 2015, which the trial court denied on September 1, 2015. On
September 25, 2015, Appellant filed a timely Notice of Appeal. Appellant
discontinued his appeal on December 1, 2015.
On December 9, 2015, Appellant filed a PCRA Petition. On January 5,
2016, the PCRA court reinstated Appellant’s appellate rights and permitted
him to file a new Post-Sentence Motion within ten days.2 Appellant filed a
Post-Sentence Motion to Modify Sentence on January 11, 2016.
On June 3, 2016, Appellant filed a Notice of Appeal. 3 Both Appellant
and the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following issue for our review:
Whether the trial court abused its discretion in sentencing
Appellant to an aggregate sentence of eighteen (18) to sixty
(60) months[’] state incarceration where Appellant’s sentence is
excessive and unreasonable and constitutes too severe a
2
The Commonwealth did not oppose Appellant’s PCRA Petition.
3
The trial court noted that it failed to file an Order disposing of Appellant’s
Motion to Modify Sentence and the clerk of courts failed to issue an Order
indicating it was denied by operation of law on or about May 10, 2016. Trial
Court Opinion, dated 8/23/16, at 3. Accordingly, the trial court deemed
Appellant’s Notice of Appeal timely filed due to a “breakdown of the
processes of the trial court” pursuant to Commonwealth v. Braykovich,
664 A.2d 133 (Pa. Super. 1995). Id. We agree with the trial court’s
assessment and will not quash this appeal on this basis.
-2-
J. S01023/17
punishment in light of the rehabilitative needs of the Appellant
and where the punitive measures inherent in this sentencing
scheme could have been accomplished with the imposition of a
lesser sentence?
Appellant’s Brief at 5.
Appellant challenges the discretionary aspects of his sentence, and as
such must properly invoke this Court’s jurisdiction in order to seek review on
the merits. “Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right.” Commonwealth v. Griffin, 65
A.3d 932, 935 (Pa. Super. 2013) (citation omitted). Rather, Appellant must
first meet his burden of satisfying the following four elements before we will
review the discretionary aspect of a sentence:
(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.[] § 9781(b).
Id. (quoting Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006)).
Here, Appellant met the first three elements by filing a timely Notice of
Appeal, properly preserving the issue, and including in his brief a Statement
of Reasons Relied Upon for Allowance of Appeal pursuant to Pa.R.A.P.
2119(f) (“Rule 2119(f) Statement”).
Accordingly, we next determine whether Appellant’s claims present a
“substantial question” for review. An appellant raises a “substantial
-3-
J. S01023/17
question” when he “sets forth a plausible argument that the sentence
violates a provision of the sentencing code or is contrary to the fundamental
norms of the sentencing process.” Commonwealth v. Crump, 995 A.2d
1280, 1282 (Pa. Super. 2010) (citation omitted). This Court has no
jurisdiction where an appellant’s Rule 2119(f) Statement fails to raise “a
substantial question as to whether the trial judge, in imposing sentence,
violated a specific provision of the Sentencing Code or contravened a
‘fundamental norm’ of the sentencing process.” Commonwealth v.
Coulverson, 34 A.3d 135, 142 (Pa. Super. 2011) (citations omitted).
In the instant case, Appellant avers that (1) his sentence was
unreasonable and excessive,4 (2) “the [trial] court should have placed a
higher weight on the fact that while incarcerated in Dauphin County Prison,
Appellant attended and successfully completed the Second Chance Drug and
Alcohol rehabilitation program and continued with the program as a
mentor[,]” and (3) “Appellant’s father has serious and potentially terminal
health issues and … the [trial] court abused its discretion in sentencing
Appellant to a lengthy sentence that may prevent Appellant from seeing his
father before he dies.” Appellant’s Brief at 10-11. None of Appellant’s
contentions set forth a “plausible argument that the sentence violates a
4
Appellant recognizes that his sentence of 18 to 60 months’ incarceration “is
within the standard range of the guidelines[.]” Appellant’s Brief at 13.
-4-
J. S01023/17
provision of the sentencing code or is contrary to the fundamental norms of
the sentencing process.” Crump, supra at 1282.
It is clear from our precedent that Appellant has failed to raise a
substantial question as to his sentence, and therefore failed to invoke the
jurisdiction of this Court. See, e.g., Commonwealth v. Cannon, 954 A.2d
1222, 1228–29 (Pa. Super. 2008) (finding no substantial question raised by
a claim that the trial court failed to consider adequately the defendant’s
mitigating factors, including his rehabilitative needs, age, and educational
background); Commonwealth v. Coolbaugh, 770 A.2d 788, 792-93 (Pa.
Super. 2001) (finding no substantial question raised by a claim that a
probation revocation sentence failed to take into consideration the
defendant’s rehabilitative needs and was manifestly excessive where
sentence was within statutory guidelines and within sentencing guidelines);
Commonwealth v. Coss, 695 A.2d 831, 833-34 (Pa. Super. 1997) (holding
that, when the sentence imposed falls within the statutory recommendation,
an appellant’s claim that a sentence is manifestly excessive fails to raise a
substantial question). Therefore, we affirm Appellant’s Judgment of
Sentence.
-5-
J. S01023/17
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/31/2017
-6-