Com. v. Watson, J. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JESSE MICHAEL WATSON, :
:
Appellant : No. 941 MDA 2019
Appeal from the Judgment of Sentence Entered May 13, 2019
in the Court of Common Pleas of Bradford County
Criminal Division at No(s): CP-08-CR-0000291-2018
BEFORE: BENDER, P.J.E., KING, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED MARCH 27, 2020
Jesse Michael Watson (“Watson”) appeals from the judgment of
sentence imposed following his entry of a nolo contendere plea to one count
of tampering with evidence.1 We affirm.
Watson was arrested on March 31, 2018, following an incident at his
home in Sayre, Pennsylvania. A Sayre police officer was in the process of
issuing Watson a citation related to Watson’s unleashed dog. During the
interaction, the officer observed Watson pick up a glass pipe that was sitting
at his feet and put it into his sweatshirt pocket. The officer instructed Watson
to remove the pipe from his pocket, and Watson refused. A scuffle ensued,
and Watson threw the pipe inside the house before closing the door behind
him. Watson was eventually arrested, his dogs were contained, and he was
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1 See 18 Pa.C.S.A. § 4910(1).
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charged with tampering, resisting arrest, possession of marijuana, escape,
and possession of drug paraphernalia following the incident.2
On June 1, 2018, Watson filed an omnibus pre-trial Motion requesting,
in part, to suppress the physical evidence seized during the incident. On
September 11, 2018, the trial court held a pretrial hearing, where Watson
admitted to possessing the paraphernalia. Watson further admitted to
throwing the pipe into the house, and to shutting the door behind him. N.T.,
9/11/18, at 4-7. The trial court denied the Motion on November 13, 2018.
On March 14, 2019, Watson entered a plea of nolo contendere, pursuant
to a plea agreement. The trial court sentenced him to time served to 23
months, 29 days in prison, and he was immediately paroled.3 Watson filed a
timely post-sentence Motion to modify his sentence, arguing that his sentence
was excessive given his plea. The trial court denied his Motion, and this timely
appeal followed.
Watson raises, as his sole issue, “[whether] the sentence imposed by
the [trial] court was excessive[.]” Brief for Appellant at 3. Watson challenges
the discretionary aspects of his sentence. Watson claims that the sentence
he received was outside the aggravated range of the sentencing guidelines.
Id. at 9. He argues that the 265 days in prison served prior to his sentencing
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2 See 18 Pa.C.S.A. § 4910(1); 5104; 5121(a); 35 P.S. §§ 780-113(a)(31),
(32).
3Watson’s bail was previously revoked on July 2, 2018, following an unrelated
arrest in New York. On October 30, 2018, Watson filed a Motion to reinstate
his bail for the instant offenses, which the trial court denied.
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far exceeds the aggravated range, and the trial court failed to consider
Watson’s prior record score, background, and time served in calculating its
maximum sentence. Id. at 11-12.
We approach Watson’s argument mindful that the right to appeal a
challenge to the discretionary aspects of a sentence is not absolute.
Commonwealth v. Williams, 787 A.2d 1085, 1087 (Pa. Super. 2001).
[T]o reach the merits of a discretionary sentencing issue, we must
determine: (1) whether the appellant has filed a timely notice of
appeal; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence; (3)
whether the appellant’s brief has a fatal defect, [s]ee Pa.R.A.P.
2119(f); and (4) whether there is a substantial question that the
sentence appealed from is inappropriate under the Sentencing
Code, 42 Pa.C.S.A. § 9781(b).
Id. at 1087-88 (citation omitted).
Watson’s brief substantially complies with the first three requirements.4
Therefore, we will determine whether there is a substantial question requiring
us to review the discretionary aspects of his sentence.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d 526,
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4 Watson’s brief does not include a separate concise statement pursuant to
Pa.R.A.P. 2119(f). Instead, Watson incorporates his concise statement into
the argument section, and attaches the sentencing guideline forms “to satisfy
[the Rule 2119(f)] requirement.” Brief for Appellant at 9. Because the
Commonwealth has not objected to the Rule 2119(f) statement, we will
proceed to determine whether there exists a substantial question. See
Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004) (explaining
that this Court may ignore the omission of a Rule 2119(f) statement, and
proceed to the substantial question analysis, when the appellee does not
object to the omission).
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533 (Pa. Super. 2011). “A substantial question exists only when the appellant
advances a colorable argument that the sentencing judge’s actions were
either: (1) inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the sentencing
process.” Commonwealth v. Battles, 169 A.3d 1086, 1090 (Pa. Super.
2017). Merely claiming that a sentence is excessive or unreasonable does not
raise a substantial question. Commonwealth v. Hornaman, 920 A.2d 1282,
1284 (Pa. Super. 2007).
Watson’s claim fails to raise a substantial question. Here, as Watson
recognizes, the negotiated plea agreement provided for a minimum sentence
of time served, which the trial court imposed, while the maximum sentence
was left to the trial court’s discretion. See Brief for Appellant at 11-12; see
also N.T., 5/13/19, at 3 (wherein Watson’s counsel states that the plea
agreement calls for a minimum of time served, and requests for the trial court
to follow the plea agreement and impose a short tail). As a result, Watson
has not raised a substantial question. See Commonwealth v. Dalberto,
648 A.2d 16, 21 (Pa. Super. 1994) (holding that an appellant has no authority
to challenge the discretionary aspects of an imposed sentence when a plea
agreement includes a negotiated sentence accepted and imposed by the
sentencing court); Commonwealth v. Moser, 999 A.2d 602, 606 (Pa. Super.
2010) (stating that “a nolo contendere plea has the same effect as a guilty
plea for purposes of sentencing and is considered a conviction[.]”).
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Additionally, Watson’s maximum sentence of 23 months, 29 days falls
within the statutory maximum. See 18 Pa.C.S.A. § 4910 (1) (stating that
tampering with evidence is a misdemeanor of the second degree); 18
Pa.C.S.A. § 106(b)(7) (stating that the maximum sentence for a misdemeanor
of the second degree is two years); Commonwealth v. Kimbrough, 872
A.2d 1244, 1263 (Pa. Super. 2005) (explaining that “[w]hen the sentence is
within the range prescribed by statute, a challenge to the maximum sentence
imposed does not set forth a substantial question as to the appropriateness of
the sentence under the guidelines.”). Accordingly, Watson has not raised a
substantial question, and we cannot grant him relief on his claim.5
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/27/2020
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5 Furthermore, the trial court had the benefit of a pre-sentence investigation
report, heard Watson’s testimony during the omnibus pre-trial hearing, and
stated its reasons for imposing its sentence on the record. See N.T., 5/13/19,
at 3-5, 7-8; Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010)
(stating that, when the sentencing court had the benefit of a pre-sentence
investigation report, “[this Court] assume[s] the sentencing court was aware
of the relevant information regarding the defendant’s character and weighed
those considerations along with mitigating statutory factors.” (internal
quotations omitted)).
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