Com. v. Ross, J. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA DANIEL ROSS :
:
Appellant : No. 514 WDA 2018
Appeal from the Judgment of Sentence March 16, 2018
In the Court of Common Pleas of Bedford County
Criminal Division at No(s): CP-05-CR-0000638-2016
BEFORE: PANELLA, P.J., LAZARUS, J., and STRASSBURGER, J.
MEMORANDUM BY PANELLA, P.J.: FILED AUGUST 02, 2019
Joshua Daniel Ross appeals from the judgment of sentence entered in
the Bedford County Court of Common Pleas following his nolo contendere1
plea to indecent assault of a person less than thirteen years old. Ross
challenges the discretionary aspects of his sentence. We affirm.
After entering his nolo contendere plea, the court sentenced Ross to
nine months to five years’ imprisonment in a state prison on March 16, 2018.
Ross filed a post-sentence petition for reconsideration of sentence. The trial
court denied the motion. This timely appeal follows.
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 Retired Senior Judge assigned to the Superior Court.
1There is some dispute in the sentencing hearing transcript whether Ross pled
guilty or pled no contest. Our review of the criminal dockets indicates a nolo
contendere plea.
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On appeal, Ross argues the trial court abused its discretion by
sentencing him to a state correctional institution on the grounds that he would
receive better treatment than at the county level. Ross concedes this claim
challenges the discretionary aspects of his sentence. “A challenge to the
discretionary aspects of a sentence must be considered a petition for
permission to appeal, as the right to pursue such a claim is not absolute.”
Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) (citation
omitted).
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).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation
omitted; brackets in original).
Here, Ross preserved his issue through a timely motion to modify
sentence, and filed a timely appeal. Counsel has included the required Rule
2119(f) statement. We therefore review the Rule 2119(f) statement to
determine if Ross has raised a substantial question.
We examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists. See Commonwealth v. Tirado, 870
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A.2d 362, 365 (Pa. Super. 2005). “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.” Id. (citation
and emphasis omitted); see also Pa.R.A.P. 2119(f).
Ross “must show that there is a substantial question that the sentence
imposed is not appropriate under the Sentencing Code.” McAfee, 849 A.2d at
274 (citation omitted). That is, “the sentence violates either a specific
provision of the sentencing scheme set forth in the Sentencing Code or a
particular fundamental norm underlying the sentencing process.” Tirado, 870
A.2d at 365. “Additionally, we cannot look beyond the statement of questions
presented and the prefatory 2119(f) statement to determine whether a
substantial question exists.” Commonwealth v. Provenzano, 50 A.3d 148,
154 (Pa. Super. 2012).
Instantly, Ross’s Rule 2119(f) statement, as well as his statement of
questions presented, provides this Court with nothing more than a bald
allegation that the trial court abused its discretion in imposing his sentence.
See Appellant’s Brief, at 5 and 10. Ross makes no argument as to why his
challenge presents a substantial question for our review. Nor does he cite any
authority for the proposition that his claim raises a substantial question.
Instead, Ross claims that the trial court erred in sentencing him to a maximum
of five years based on its belief that he could only receive the counseling he
needs at a state correction institute. See id. He claims this was error since
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“testimony/reports were provided by a certified sex offender therapist who
had counseled [Ross] for the last year and was willing to further counsel
[him].” Id., at 10.
It is only in his “ARGUMENT” section of his brief where Ross explains his
position is that his maximum sentence is too high given his age and prior
record score, and that he should have been given probation instead, since he
believes he was already receiving adequate treatment.2 “[W]e,” however,
“cannot look beyond the statement of questions presented and the prefatory
[Rule] 2119(f) statement to determine whether a substantial question exists.”
Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012)
(citation omitted); see also Commonwealth v. Tuladziecki, 522 A.2d 17,
19 (Pa. 1987) (“Superior Court may not, however, be permitted to rely on its
assessment of the argument on the merits of the issue to justify post hoc a
determination that a substantial question exists.”).
Because Ross fails to assert, let alone cite, to any authority that
demonstrates the manner in which “the sentence violates either a specific
provision of the sentencing scheme set forth in the Sentencing Code or a
particular fundamental norm underlying the sentencing process” Tirado, 870
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2 Arguably, even the contention detailed in the argument section of Ross’s
Brief does not raise a substantial question. See Commonwealth v. Griffin,
65 A.3d 932, 936 (Pa. Super. 2013) (finding claim that court imposed an
excessive sentence by failing to consider rehabilitative needs of defendant did
not raise a substantial question).
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A.2d at 365, he has failed to raise a substantial question for our review. For
this reason, we do not reach the merits of Ross’s discretionary claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/02/2019
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