Com. v. Rodgers, K. ( 2018 )


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  • J-S71027-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    KENNETH RODGERS,                           :
    :
    Appellant               :   No. 3520 EDA 2017
    Appeal from the Judgment of Sentence October 1, 2015
    In the Court of Common Pleas of Philadelphia County Criminal Division at
    No(s): CP-51-CR-0001705-2015
    BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.
    MEMORANDUM BY DUBOW, J.:                            FILED DECEMBER 24, 2018
    Appellant, Kenneth Rodgers, appeals from the October 1, 2015
    Judgment of Sentence entered in the Philadelphia County Court of Common
    Pleas following his open guilty plea to Aggravated Assault, Possession of an
    Instrument of Crime (“PIC”), Simple Assault, and Recklessly Endangering
    Another Person (“REAP”).1 After careful review, we affirm.
    The facts and procedural history are as follows. On January 15, 2015,
    following a verbal altercation, Appellant attacked the victim (“Victim”), his co-
    worker, at their place of employment. Video surveillance footage captured
    Appellant punching the Victim about the face and head, continuing to do so
    after the Victim had fallen to the ground. The Victim then picked himself up
    off the ground, whereupon Appellant returned and chased the Victim with what
    police later identified as a metal pipe.
    ____________________________________________
    1   18 Pa.C.S. §§ 2702(a); 907; 2701; and 2705, respectively.
    J-S71027-18
    On January 26, 2015, the Commonwealth charged Appellant with the
    above crimes in connection with this incident. On July 20, 2015, Appellant
    entered an open guilty plea to all charges.       The trial court ordered the
    preparation of a Pre-Sentence Investigation (“PSI”) report and a mental health
    evaluation.
    On October 1, 2015, the court sentenced Appellant to an aggregate term
    of 3 to 8 years’ incarceration.2 Relevant to the instant appeal, the court noted
    that the video surveillance footage of the incident showed Appellant striking
    the Victim with the metal pipe and stabbing the Victim in the right arm with a
    pair of scissors. The court, thus, applied the deadly weapon enhancement
    when sentencing Appellant.3, 4 At the sentencing hearing, the court placed a
    detailed explanation of Appellant’s sentence on the record.          See N.T.
    ____________________________________________
    2 The court sentenced Appellant to 3 to 8 years’ incarceration for his
    Aggravated Assault conviction and a concurrent term of 2 ½ to 5 years for his
    PIC conviction. The court also sentenced Appellant to a consecutive term of
    2 years’ probation for his REAP conviction. Appellant’s Simple Assault
    conviction merged for sentencing purposes.
    3   See 204 Pa.Code § 303.10(a)(2).
    4 The Sentencing Guideline standard-range sentence for an Aggravated
    Assault conviction with a deadly weapon enhancement is 6½- to 7 ½-years’
    incarceration, plus or minus 12 months. Appellant actually got a downward
    deviation from the sentencing guidelines.
    -2-
    J-S71027-18
    Sentencing, 10/1/15, at 23-24.5 Appellant did not object at the sentencing
    hearing to the court’s application of the deadly weapon enhancement.
    Appellant did not file a timely Post-Sentence Motion pursuant to
    Pa.R.Crim.P. 720.       On October 27, 2017, he filed a Nunc Pro Tunc Post-
    Sentence Motion to Reconsider Imposed Sentence, in which he requested the
    court to “reconsider [his] sentence and impose a lesser sentence.” Motion,
    10/27/17, at ¶ 2. He asked the court to “accept his motion nunc pro tunc as
    having been filed within 10 days of [his] October 1, 2015 sentence.” 
    Id. In the
    Motion, Appellant did not allege that his sentence was excessive or provide
    any explanation why he believed that the court should reconsider his
    sentence. The court denied Appellant’s Motion the next day. Appellant did
    not timely file a direct appeal from his Judgment of Sentence.
    Appellant sought and, on September 28, 2017, the PCRA court granted
    the reinstatement of his direct appeal rights nunc pro tunc; however, court
    expressly denied Appellant’s request for permission to file a Post-Sentence
    Motion nunc pro tunc.6
    ____________________________________________
    5 The sentencing court’s stated reasons include: (1) Appellant’s credible
    expressions of remorse; (2) Appellant’s acceptance of responsibility; (3) the
    PSI report and mental health evaluation; (4) Appellant’s family situation; (5)
    Appellant’s propensity for violence; (6) the need to protect society; and (7)
    Appellant’s use of deadly weapons in this incident. N.T. Sentencing, 10/1/15,
    at 23-25.
    6  The PCRA court indicated that it was denying Appellant the opportunity to
    file a Post-Sentence Motion nunc pro tunc because Appellant did not
    demonstrate that his failure to file a timely Post-Sentence Motion prejudiced
    -3-
    J-S71027-18
    This timely appeal followed.            Appellant filed a Pa.R.A.P. 1925(b)
    Statement in which he challenged the discretionary aspects of his sentence,
    including the imposition of the deadly weapon enhancement, and the court’s
    alleged failure to consider mitigating factors.
    Appellant raises the following issues on appeal:
    1. Whether the [c]ourt improperly applied the deadly weapon
    enhancement outside of the Guideline ranges[?]
    2. Whether the [c]ourt abused its discretion with the harsh and
    unreasonable sentence given to [Appellant?]
    Appellant’s Brief at 8.
    As presented, both of Appellant’s issues challenge the discretionary
    aspects of his sentence. See Commonwealth v. Rhoades, 
    8 A.3d 912
    , 915-
    16. (Pa. Super. 2010) (noting that a challenge to the deadly weapon
    enhancement implicates a discretionary aspect of a defendant’s sentence);
    see also Commonwealth v. Disalvo, 
    70 A.3d 900
    , 903 (Pa. Super. 2013)
    (considering whether a defendants’ challenge to the weight the sentencing
    ____________________________________________
    him. Order, 9/28/17, at 1 n.1, citing Commonwealth v. Liston, 
    977 A.2d 1089
    , 1094 n.9 (Pa. 2009) (explaining that a petitioner must successfully
    plead and prove in a PCRA Petition that he was deprived of the right to file
    and litigate post-sentence motions as a result of ineffective assistance of
    counsel in order for a PCRA Court to reinstate his post-sentence rights nunc
    pro tunc.). In particular, the court found that Appellant “failed to offer any
    evidence that his sentence would have been reconsidered had his counsel filed
    the motion he requested in a timely manner.” 
    Id. It noted
    that it “considered
    the guidelines, the modified presentence report, the mental health evaluation,
    the video of the crime, the arguments of counsel, testimony on [Appellant’s]
    behalf[,] and [Appellant’s] allocution, prior to sentencing” and that “the basis
    for the sentence was thoroughly articulated.” 
    Id. -4- J-S71027-18
    court placed on mitigating factors raised a substantial question regarding the
    discretionary aspects of his sentence, and concluding it did not).
    Challenges to the discretionary aspects of sentencing do not entitle an
    appellant to an appeal as of right. Commonwealth v. Sierra, 
    752 A.2d 910
    ,
    912 (Pa. Super. 2000).      Rather, an appellant challenging the sentencing
    court’s discretion must invoke this Court’s jurisdiction by (1) filing a timely
    notice of appeal; (2) properly preserving the issue at sentencing or in a motion
    to reconsider and modify the sentence; (3) complying with Pa.R.A.P. 2119(f),
    which requires a separate section of the brief setting forth “a concise
    statement of the reasons relied upon for allowance of appeal with respect to
    the discretionary aspects of a sentence[;]” and (4) presenting a substantial
    question that the sentence appealed from is not appropriate under the
    Sentencing Code.    Commonwealth v. Leatherby, 
    116 A.3d 73
    , 83 (Pa.
    Super. 2015).
    Here, the record is clear that Appellant did not raise this issue at
    sentencing or file a timely Post-Sentence Motion. Thus, Appellant has failed
    to preserve his objection to the court’s discretionary application of the deadly
    weapon enhancement and his claim that the court failed to consider mitigating
    factors when sentencing him.
    Judgment of Sentence affirmed.
    -5-
    J-S71027-18
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/24/18
    -6-
    

Document Info

Docket Number: 3520 EDA 2017

Filed Date: 12/24/2018

Precedential Status: Precedential

Modified Date: 12/24/2018