Com. v. Forsythe, A. ( 2020 )

J-S62022-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALEXANDER WILLIAM FORSYTHE, JR. :
:
Appellant : No. 490 WDA 2019
Appeal from the Judgment of Sentence Entered, March 7, 2019,
in the Court of Common Pleas of Cambria County,
Criminal Division at No(s): CP-11-CR-0001435-2018.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY KUNSELMAN, J.: FILED FEBRUARY 04, 2020
Alexander William Forsythe, Jr., appeals from the judgment of sentence
imposed following his open guilty plea to one count each of driving under the
influence (“DUI”) controlled substances Schedule II or Schedule III, and
driving while operating privileges suspended – DUI related.1 We affirm.
On August 1, 2018, Forsythe recklessly operated his vehicle while under
the influence of Xanax and Fentanyl, and collided with other vehicles, causing
damage. At the time, Forsythe’s driving privileges were suspended due to a
prior DUI conviction. Additionally, police found three syringes in his vehicle.
Forsythe was arrested and charged with numerous offenses. On January 29,
2019, Forsythe pleaded guilty to DUI controlled substances Schedule II or III,
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1 See 75 Pa.C.S.A. §§ 3802(d)(1)(ii), 1543(b)(1).
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and driving while operating privileges suspended – DUI related.2 Sentencing
was scheduled for February 27, 2019; however, Forsythe failed to appear. A
bench warrant was issued. On March 7, 2019, Forsythe entered an open guilty
plea to the above-noted charges. The trial court sentenced Forsythe to
eighteen to sixty months incarceration for the DUI charge, and a concurrent
prison term of thirty to sixty days for the driving while operating privileges
suspended charge. Both sentences fell within the standard range of the
sentencing guidelines. Forsythe filed a timely post-sentence motion, which
the trial court denied. Forsythe thereafter filed a timely notice of appeal. Both
Forsythe and the trial court complied with Pa.R.A.P. 1925.
On appeal, Forsythe challenges the discretionary aspects of his
sentence.3 As we have explained, “[c]hallenges to the discretionary aspects
of sentencing do not entitle an appellant to review as of right.”
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). Prior to
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2Both of Forsythe’s convictions constituted second offenses within ten years.
Additionally, Forsythe’s conviction of driving while operating privileges
suspended – DUI related was his third lifetime conviction for this offense.
3 As Forsythe entered an open guilty plea, he retained the right to challenge
the discretionary aspects of his sentence. See Commonwealth v. Luketic,
162 A.3d 1149, 1159 (Pa. Super. 2017) (holding that when a defendant enters
a guilty plea which does not involve a plea bargain designating the sentence
to be imposed, he waives the right to challenge all non-jurisdictional defects
except the legality of the sentence and the validity of the plea, but retains the
right to challenge the discretionary aspects of his sentence).
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reaching the merits of a discretionary sentencing issue, this Court conducts 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, [see] 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, [see] 42 Pa.C.S.A.
§ 9781(b).
Id. (citation omitted). When an appellant challenges the discretionary aspects
of his sentence, we must consider his brief on this issue as a petition for
permission to appeal. Commonwealth v. Yanoff, 690 A.2d 260, 267 (Pa.
Super. 1997); see also Commonwealth v. Tuladziecki, 522 A.2d 17, 18
(Pa. 1987); 42 Pa.C.S. § 9781(b).
We determine the existence of a substantial question on a case-by-case
basis. See Commonwealth v. Feucht, 955 A.2d 377, 384 (Pa. Super.
2008). 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. Diehl, 140 A.3d 34, 44-45 (Pa. Super. 2016) (internal
citations and quotation marks omitted).
In the instant case, Forsythe filed a timely notice of appeal, preserved
his claims in a timely post-sentence motion, and included in his appellate brief
a Rule 2119(f) statement. As such, he technically complied with the first three
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requirements to challenge the discretionary aspects of his sentence. See
Commonwealth v. Rhoades, 8 A.3d 912, 916 (Pa. Super. 2010). Thus, we
will proceed to review his Rule 2119(f) statement to determine whether
Forsythe has presented a substantial question for our review.
In his Pa.R.A.P. 2119(f) statement, Forsythe concedes that his
sentences fall within the standard range of the sentencing guidelines, but
“avers that his sentence was manifestly excessive in that the trial court did
not take into consideration his severe addiction and need for treatment in lieu
of incarceration.” Forsythe’s Brief at 5 (some capitalization omitted).
This Court has held on numerous occasions that a claim of inadequate
consideration of rehabilitative needs does not raise a substantial question for
our review. See Commonwealth v. Haynes, 125 A.3d 800, 807 (Pa. Super.
2015). Similarly, an allegation that a sentencing court failed to consider or
did not adequately consider certain mitigating factors does not raise a
substantial question that the sentence was inappropriate. See
Commonwealth v. Lewis, 911 A.2d 558, 567 (Pa. Super. 2006). Thus, as
Forsythe has failed to raise a substantial question for our review, we must
deny his petition to appeal the discretionary aspects of his sentence.4
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4Even if Forsythe has raised a substantial question for our review, we would have
concluded that the trial court did not abuse its discretion in imposing his sentence.
Importantly, the sentencing court had the benefit of a PSI. It is well-settled that
where a sentencing court was informed by a PSI, “it is presumed that the court was
aware of all appropriate sentencing factors and considerations, and that where the
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/4/2020
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court has been so informed, its discretion should not be disturbed.”
Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009) (citing
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)). Moreover, in light of the
criminal conduct at issue, we would not have concluded that the trial court’s
imposition of standard range sentences were clearly unreasonable, or that
Forsythe’s aggregate sentence was unduly harsh. Commonwealth v. Swope, 123
A.3d 333, 338-39 (Pa. Super. 2015).
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