Com. v. Hedrick, R. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT WILLIAM HEDRICK,
Appellant No. 345 WDA 2014
Appeal from the Judgment of Sentence January 31, 2014
in the Court of Common Pleas of Crawford County
Criminal Division at No.: CP-20-CR-0000018-2011
BEFORE: DONOHUE, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 17, 2014
Appellant, Robert William Hedrick, appeals from the judgment of
sentence entered following the revocation of his probation. For the reasons
discussed below, we affirm.
On May 9, 2011, Appellant entered an open guilty plea to incest and
corruption of minors.1 (See Written Guilty Plea, 5/09/11, at unnumbered
page 1). On August 9, 2011, the trial court sentenced Appellant to a
standard-range sentence of not less than twelve months less one day nor
more than twenty-four months less one day of incarceration, to be followed
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 4302 and 6301, respectively.
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by three years of probation. (See Notification of Sentence, 8/09/11, at
unnumbered page 1).
Following his release from prison in Pennsylvania, Appellant moved to
Florida and the Commonwealth transferred supervision of his probation to
that State. (See N.T. Gagnon II Hearing, 11/25/13, at 6). At the Gagnon
II2 hearing, Probation Officers Jeter Cornelius and Jennifer Soffe testified
that, during a scheduled search of Appellant’s residence on July 22, 2013,
they discovered photographic evidence demonstrating that Appellant was in
contact with children and used the internet to access pornographic websites
in violation of the conditions of his probation. (See id. at 7-11, 35-36). The
revocation court revoked Appellant’s probation and sentenced him to a term
of incarceration of not less than two nor more than five years, with one-
hundred and seventy-two days of presentence incarceration credit. (See
N.T. Gagnon II Continued Hearing, 1/31/14, at 18; Order, 1/31/14, at
unnumbered page 1).
Appellant filed the instant, timely appeal. On February 27, 2014, the
revocation court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). See Pa.R.A.P.
1925(b). Appellant filed his concise statement on March 14, 2014; the
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2
See Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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revocation court issued an opinion on March 19, 2014. See Pa.R.A.P.
1925(a).
Appellant raises the following question for our review:
Whether an allowance of appeal should be granted to
challenge the discretionary aspects of a sentence in that, the
lower court, under the circumstances and facts of the particular
case and without proper support appearing on the record,
abused its discretion and failed to consider the individual needs
of the Appellant by sentencing the Appellant to the aforesaid
sentence?
(Appellant’s Brief, at 7).
On appeal, Appellant challenges the discretionary aspects of his
sentence.3 In a recent decision, Commonwealth v. Cartrette, 83 A.3d
1030 (Pa. Super. 2013) (en banc), this Court held that “this Court’s scope of
review in an appeal from a revocation sentencing includes discretionary
sentencing challenges.” Cartrette, supra at 1034. Thus, Appellant’s claim
is properly before us.
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3
We note that the Commonwealth argues that Appellant waived his issue on
appeal by not filing a post-sentence motion for reconsideration of sentence.
(See the Commonwealth’s Brief, at 6). However, the record reflects that
Appellant preserved his discretionary aspects of sentence claim by objecting
to the sentence at sentencing. (See N.T. Gagnon II Continued Hearing,
1/31/14, at 20). Thus, we decline to find waiver on this basis. See
Commonwealth v. McAfee, infra at 274 (“Issues challenging the
discretionary aspects of sentence must be raised in a post-sentence motion
or by presenting the claim to the trial court during the sentencing
proceedings.”) (citation omitted).
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The right to appeal the discretionary aspects of a sentence is not
absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.
2004), appeal denied, 860 A.2d 122 (Pa. 2004). When an appellant
challenges the discretionary aspects of the sentence imposed, he must
present “a substantial question as to the appropriateness of the sentence[.]”
Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003)
(citations omitted). An appellant must, pursuant to Pennsylvania Rule of
Appellate Procedure 2119(f), articulate “a colorable argument that the
sentence violates a particular provision of the Sentencing Code or is contrary
to the fundamental norms underlying the sentencing scheme.”
Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super. 2005)
(en banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation omitted). If
an appellant’s Rule 2119(f) statement meets these prerequisites, we
determine whether a substantial question exists. See Commonwealth v.
Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en banc), appeal denied,
759 A.2d 920 (Pa. 2000). “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. (emphases in
original).
Appellant’s brief in the present case does not contain a Rule 2119(f)
statement. (See Appellant’s Brief, at 8-12). “A failure to include the Rule
2119(f) statement does not automatically waive an appellant’s argument;
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however, we are precluded from reaching the merits of the claim when the
Commonwealth lodges an objection to the omission of the statement.”
Commonwealth v. Roser, 914 A.2d 447, 457 (Pa. Super. 2006), appeal
denied, 927 A.2d 624 (Pa. 2007) (citation omitted). Because the
Commonwealth has objected to the absence of the Rule 2119(f) statement,
(see the Commonwealth’s Brief, at 6), we cannot reach the merits of
Appellant’s claim. Accordingly, Appellant’s issue is waived. See Pa.R.A.P.
Rule 2119(f); Roser, supra at 457.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/17/2014
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