Com. v. Simmons, R. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ROBERT SIMMONS :
:
Appellant : No. 1684 EDA 2018
Appeal from the Judgment of Sentence May 4, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006974-2016
BEFORE: SHOGAN, J., McCAFFERY, J., and COLINS, J.*
JUDGMENT ORDER BY COLINS, J.: FILED APRIL 13, 2020
Appellant, Robert Simmons, appeals from the aggregate judgment of
sentence of six to fourteen years of confinement, which was imposed after his
convictions at a bench trial for persons not to possess firearms, firearms not
to be carried without a license, and carrying firearms on public streets in
Philadelphia.1 We affirm.
Appellant was convicted of the aforementioned crimes on June 19,
2017; his sentencing was deferred to May 4, 2018. That same day, Appellant
filed a post-sentence motion for reconsideration of sentence, which the trial
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), and 6108, respectively.
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court denied on May 14, 2018. On May 29, 2018, Appellant filed this timely
direct appeal.2
Appellant presents the following issue for our review:
Whether sentence was excessive and cruel and unusual
punishment where it was double the standard range sentence and
twice the amount recommended by the District Attorney? In
addition, whether there was nothing on record to justify such a
gross deviation from the sentencing guidelines and the
prosecution’s recommendation?
Appellant’s Brief at 5.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to an appeal as of right. Prior to reaching the
merits of a discretionary sentencing issue[, 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. Manivannan, 186 A.3d 472, 489 (Pa. Super. 2018)
(quotation marks and some citations omitted), reargument denied (July 7,
2018). In the current case, Appellant filed a timely notice of appeal and
preserved his issue in a post-sentence motion, and his brief includes a
statement pursuant to Pa.R.A.P. 2119(f) (“Rule 2119(f) Statement”).
Appellant’s Brief at 6. The final requirement, whether the question raised by
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2Appellant filed his statement of errors complained of on appeal on July 19,
2018. The trial court entered its opinion on September 21, 2018.
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Appellant is a substantial question meriting our discretionary review, “must
be evaluated on a case-by-case basis.” Manivannan, 186 A.3d at 489.
Appellant’s entire argument in his Rule 2119(f) Statement is as follows:
In the instant matter, the trial court imposed a sentence of six to
fourteen years and was close to the maximum sentence that the
court could have imposed. [Appellant] was young, did not have a
history of anti-social behavior and had already been sentence[d]
to a substantial period of incarceration. As a result, the Appellant
believes that he has raised a substantial sentencing issue.
Appellant’s Brief at 6. However, Appellant fails to present – and our research
has failed to uncover – any case law where contentions that an aggregate
sentence is “close to the maximum sentence[,]” that the appellant had no
history of anti-social behavior, and that the appellant was already serving
another lengthy sentence raised substantial questions. Id. Additionally, this
Court has repeatedly held that a claim that a trial court failed to consider an
appellant’s age when imposing a sentence does not raise a substantial
question. Commonwealth v. Cannon, 954 A.2d 1222, 1228–29 (Pa. Super.
2008) (claim that trial court failed to consider the defendant’s rehabilitative
needs, age, and educational background did not present a substantial
question); Commonwealth v. Eline, 940 A.2d 421, 435 (Pa. Super. 2007)
(appellant’s argument that “trial court failed to give adequate consideration to
[his] poor health and advanced age” in fashioning his sentence did not raise
a substantial question); Commonwealth v. Cleveland, 703 A.2d 1046, 1048
(Pa. Super. 1997) (appellant’s assertion that sentencing court failed to
consider his youth did not present “a colorable argument that a substantial
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question exist[ed]”). Consequently, none of Appellant’s arguments in his Rule
2119(f) Statement raise a substantial question, and, ergo, he has not
preserved his challenge to the discretionary aspects of sentencing. See
Manivannan, 186 A.3d at 489. Therefore, we affirm the trial court’s
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/20
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