Com. v. Barnes, F. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
FRED ORSON BARNES, JR. :
:
Appellant : No. 374 MDA 2020
Appeal from the Judgment of Sentence Entered January 30, 2020
In the Court of Common Pleas of Bradford County Criminal Division at
No(s): CP-08-CR-0000458-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FRED ORSON BARNES :
:
Appellant : No. 861 MDA 2020
Appeal from the Judgment of Sentence Entered January 30, 2020
In the Court of Common Pleas of Bradford County Criminal Division at
No(s): CP-08-CR-0000459-2019
BEFORE: OLSON, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED MARCH 8, 2021
Appellant, Fred Orson Barnes, Jr., appeals from the judgment of
sentence, entered January 30, 2020. We affirm.
The trial court aptly summarized the pertinent facts of this case:
Appellant entered [guilty] pleas to [t]erroristic [t]hreats, 18
Pa.C.S.A. § 2706(a)(1) [misdemeanor] 1 [at docket
CP-08-CR-0000458-2019]; and [d]riving [u]nder the [i]nfluence
of a [c]ontrolled [s]ubstance, 75 Pa.C.S.A. § 3802(d)(1)(i),
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[ungraded misdemeanor at docket CP-08-CR-0000459-2019] on
November 18, 2019. Appellant was sentenced on January 30,
2020 to a split sentence of incarceration the minimum of which is
[one] month and the maximum of which is [five] months, 29 days
followed by 12 months of probation for the offense of [t]erroristic
[t]hreats and a sentence of incarceration the minimum of which is
72 hours and a maximum of which is [six] months for the offense
of [d]riving [u]nder the [i]nfluence of a [c]ontrolled [s]ubstance.
The sentences imposed were directed to run consecutively to each
other as well as consecutively to a sentence imposed in the case
at [CP-08-CR-0000676-2017, a new sentence imposed after the
court revoked Appellant’s probation on July 29, 2019. The terms
of the revocation sentence directed Appellant to serve] a minimum
of [three] months and a maximum of 12 months for the crime of
[p]ossession of [d]rug [p]araphernalia, 35 P.S. § 780-113(a)(32),
[misdemeanor].
Trial Court Opinion, 7/14/20, at 1. These appeals followed.1
Appellant argues that his sentence is excessive. Specifically, he
contends that the trial court arrived at a “manifestly unreasonable” decision
because “[a] mitigated sentence, or a sentence below the mitigated range
outside of the guidelines, would not be an unreasonable sentence in these
circumstances.” Appellant’s Brief at 9. Appellant’s issue therefore implicates
the discretionary aspects of sentencing. As this Court previously explained:
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant challenging
the discretionary aspects of his sentence must invoke this Court's
jurisdiction by satisfying a four-part test:
____________________________________________
1. Appellant’s appeal from his conviction and sentence for terroristic threats
is docketed with this Court at 374 MDA 2020. His appeal from his conviction
and sentence for driving under the influence of a controlled substance is
docketed at 861 MDA 2020. Appellant filed two notices of appeal, fulfilling
his obligations pursuant to Commonwealth v. Walker, 185 A.3d 969 (Pa.
2018).
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We 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. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (internal
case citations omitted). Appellant timely appealed his sentence and included
a Rule 2119(f) statement. Appellant, however, failed to preserve his issue or
raise a substantial question to warrant our review on the merits.
Issues not preserved in the trial court may not be pursued before this
Court. Commonwealth v. Lincoln, 72 A.3d 606, 610 (Pa. Super. 2013),
citing Pa.R.A.P. 302(a). Challenges to the discretionary aspects of a trial
court’s sentence are waived unless raised at the time of sentencing or in a
post-sentence motion. Commonwealth v. Rush, 959 A.2d 945, 949 (Pa.
Super. 2008). To confirm preservation, we look only to those documents
within the certified record. Id.At the time of sentencing, Appellant did not raise a discretionary
sentencing challenge or any argument for a mitigated sentence. Indeed, the
only argument raised by counsel for Appellant involved a presupposition of a
standard range sentence. See, N.T. Sentencing Hearing, 1/30/20, at 2
(counsel stating, “if these are going to be in the standard range . . .”). After
the trial court imposed its sentence, Appellant did not raise any challenge.
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Moreover, the certified record reveals that no post-sentence motions were
filed on Appellant’s behalf. Therefore, in not raising a discretionary sentencing
issue in the trial court, Appellant failed to preserve the issue and waived his
challenge.
Even if Appellant preserved his issue for appeal, Appellant failed to raise
a substantial question to invoke this Court’s jurisdiction. As this Court has
explained, to establish a substantial question, an “appellant must show actions
by the sentencing court inconsistent with the Sentencing Code or contrary to
the fundamental norms underlying the sentencing process.” Commonwealth
v. Cannon, 954 A.2d 1222, 1229 (Pa. Super. 2008). It is settled that a bald
assertion of sentencing errors does not constitute a substantial question.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). We have
explained:
An allegation that the sentencing court failed to consider certain
mitigating factors generally does not necessarily raise a
substantial question. Commonwealth v. McNabb, 819 A.2d 54,
57 (Pa. Super. 2003). Accord Commonwealth v. Wellor, 731
A.2d 152, 155 (Pa. Super. 1999) (reiterating allegation that
sentencing court “failed to consider” or “did not adequately
consider” certain factors generally does not raise substantial
question. Compare Commonwealth v. Felmlee, 828 A.2d
1105, 1107 (Pa. Super. 2003) (en banc) (stating substantial
question is raised, however, where appellant alleges sentencing
court imposed sentence in aggravated range without adequately
considering mitigating circumstances).
“When imposing a sentence, a court is required to consider the
particular circumstances of the offense and the character of the
defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.
Super. 2002), appeal denied, [868 A.2d 1198 (Pa. 2005)], cert.
denied, [545 U.S. 1148] (2005). “In particular, the court should
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refer to the defendant’s prior criminal record, his age, personal
characteristics and his potential for rehabilitation.” Id. Where the
sentencing court had the benefit of a presentence investigation
report (“PSI”), we can assume the sentencing court “was aware
of relevant information regarding the defendant’s character and
weighed those considerations along with mitigating statutory
factors.” Commonwealth v. Devers, [546 A.2d 12, 18 (Pa.
1988)]. See also Commonwealth v. Tirado, 870 A.2d 362, 368
(Pa. Super. 2005) (stating if sentencing court has benefit of PSI,
law expects court was aware of relevant information regarding
defendant’s character and weighed those considerations along
with any mitigating factors). Further, where a sentence is within
the standard range of the guidelines, Pennsylvania law views the
sentence as appropriate under the Sentencing Code. See
Commonwealth v. Cruz-Centeno, [668 A.2d 536 (Pa. Super.
1995)], appeal denied, [676 A.2d 1195 (Pa. 1996)] (stating
combination of PSI and standard range sentence, absent more,
cannot be considered excessive or unreasonable).
Moury, 992 A.2d, at 171.
Here, Appellant asserts that the trial court imposed an excessive
sentence in light of mitigating circumstances, including that Appellant “had a
[zero] prior record score at the time of sentencing, had never been convicted
of a felony offense, [and] had been attending drug and alcohol counseling
sessions with Trinity CASA while incarcerated in the Bradford County
Correction Facility[.]” Appellant’s Brief at 9. This bald assertion essentially
claims that the trial court abused its discretion in fixing Appellant’s punishment
because it failed to consider, or failed to adequately consider, certain
mitigating factors. Such contentions do not raise a substantial question to
invoke our jurisdiction over discretionary sentencing challenges.
Even if Appellant had raised a substantial question and preserved his
issue such that we would grant review, his appeal lacks merit. Sentencing is
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a matter vested in the sound discretion of the trial court and will not be
disturbed absent a manifest abuse of discretion. Commonwealth v. Blount,
207 A.3d 925, 934 (Pa. Super. 2019) (citation omitted), appeal denied, 218
A.3d1198 (Pa. 2019). This is not merely an error in judgment. Rather,
Appellant must establish, by reference to the record, that the trial court
ignored or misapplied the law, exercised its judgment for reasons of partiality,
prejudice, bias, or ill-will, or arrived at a manifestly unreasonable decision.
Id. at 934-935.
Appellant argues for a sentence at or below the mitigated range. See
Appellant’s Brief at 9 (arguing such a sentence “would not be an unreasonable
sentence”). However, there is no requirement for the trial court to impose
the “minimum possible confinement” Commonwealth v. Walls, 926 A.2d
957, 965 (Pa. 2007). Rather, the trial court need only impose a sentence
consistent with concerns for public protection, gravity of the offense, and the
rehabilitative needs of the defendant. Id., citing 42 Pa.C.S.A. § 9721(b). The
trial court in this case did so. See N.T. Sentencing Hearing, 1/30/20, at 9.
Contrary to Appellant’s argument, the fact that a mitigated sentence could
have been reasonable in this instance does not make the sentence imposed
unreasonable. Appellant failed to cite anything in the record to establish that
the trial court’s reasoning was improper.
Moreover, the trial court conducted an exhaustive on-the-record
evaluation of Appellant’s presentence investigation (“PSI”) report. See N.T.
Sentencing Hearing, 1/30/20, at 3-4. Because the trial court had a PSI report
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and evaluated it on the record, we presume that it was aware of and weighed
all mitigating considerations when sentencing Appellant. Moury, supra.
Therefore, Appellant’s claim is meritless.
Accordingly, based upon all of the foregoing, Appellant failed to preserve
his issues or raise a substantial question and, thus, his petition for review of
the discretionary aspects of his sentence must be denied.
Judgment of sentenced affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/08/2021
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