Com. v. MacAfee, E.

J-A24024-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERIC D. MACAFEE :
:
: No. 3276 EDA 2018
Appeal from the Judgment of Sentence Entered October 11, 2018
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0007049-2017
BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.*
MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 07, 2019
Appellant, Eric D. MacAfee, appeals from the October 11, 2018
Judgment of Sentence entered in the Montgomery County Court of Common
Pleas following his guilty plea to one count of Sexual Abuse of Children
(Dissemination of Photographs, Videotapes, Computer Depictions, and
Films).1 On appeal, Appellant challenges the discretionary aspects of his
sentence. After careful review, we affirm.
The relevant facts and procedural history are as follows. On June 7,
2018, Appellant entered a guilty plea to the above charge. In exchange, the
Commonwealth nolle prossed five counts of Sexual Abuse of Children (Child
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 6312(c).
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Pornography).2 The trial court ordered a pre-sentence investigation (“PSI”)
report, a probation and parole intervention (“PPI”) evaluation report, sexually
violent predator assessment, and psychosexual risk assessment.
On October 11, 2018, the trial court sentenced Appellant to an
aggravated range sentence of 30 to 60 months of imprisonment, followed by
5 years of probation. Appellant filed a Post-Sentence Motion, which the trial
court denied.
Appellant filed a timely Notice of Appeal. Both Appellant and the trial
court complied with Pa.R.A.P. 1925.
Appellant raises the following issue on appeal: “Did the sentencing court
abuse its discretion when it sentenced [A]ppellant in the aggravated range
based exclusively upon charges that had been nolle prossed while ignoring a
number of mitigating factors?” Appellant’s Br. at 2.
Appellant challenges the discretionary aspects of his sentence. His Brief
presents two arguments: (1) that the trial court abused its discretion when it
sentenced Appellant in the aggravated range based exclusively upon charges
that had been nolle prossed; and (2) that the trial court abused its discretion
when it sentenced Appellant in the aggravated range while ignoring a number
of mitigating factors.
Challenges to the discretionary aspects of sentence are not appealable
as of right. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super.
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2 18 Pa.C.S. § 6312(d).
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2015). Rather, an appellant challenging the sentencing court’s discretion must
invoke this Court’s jurisdiction by (1) filing a timely notice of appeal; (2)
properly preserving the issue at sentencing or in a post-sentence motion; (3)
complying with Pa.R.A.P. 2119(f), which requires a separate section of the
brief setting forth a concise statement of the reasons relied upon for allowance
of appeal with respect to the discretionary aspects of a sentence; and (4)
presenting a substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b). Id.
To properly preserve an issue challenging the discretionary aspects of
sentencing, a defendant must object and request a remedy at sentencing, or
raise the challenge in a post-sentence motion. Commonwealth v. McAfee,
849 A.2d 270, 275 (Pa. Super. 2004). The Pennsylvania Rules of Criminal
Procedure specifically caution defendants that, when filing post-sentence
motions, “[a]ll requests for relief from the trial court shall be stated with
specificity and particularity[.]” Pa.R.Crim.P. 720(B)(1)(a). See
Commonwealth v. Tejada, 107 A.3d 788, 798-99 (Pa. Super. 2015) (noting
that the trial court must be given the opportunity to reconsider its sentence
either at sentencing or in a post-sentence motion). See, e.g.,
Commonwealth v. Mann, 820 A.2d 788, 793-94 (Pa. Super. 2003)
(concluding that the defendant waived his discretionary aspects of sentencing
claim regarding the sentencing court’s failure to state the reasons for his
sentence on the record where the defendant’s post-sentence motion only
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argued that his sentence was unduly severe and that the trial court abused its
discretion under the sentencing code).
Appellant’s first argument is waived. He did not raise the issue as stated
here—that his sentence was based on the nolle prossed charges—at
sentencing. Further, in his Post-Sentence Motion for Reconsideration,
Appellant challenged his sentence as follows: “[i]n sentencing [Appellant],
[t]he [c]ourt failed to consider: [t]he fugitive of justice detainer issued by
Ocean County New Jersey[;] [t]he extreme contrition displayed by [Appellant;
and] Primary Cilia Dysplasia, the medical condition that has plagued
[Appellant] since birth.” Motion for Reconsideration, filed 10/18/18, at 2. His
Post-Sentence Motion did not mention the issue he now raises before us. Thus,
Appellant failed to preserve the issue at sentencing or a post-sentence motion.
Accordingly, the issue is waived.3
Appellant did, however, properly preserve his second argument—that
the trial court abused its discretion when it sentenced Appellant in the
aggravated range while ignoring a number of mitigating factors—by raising it
in his post-sentence motion and including a statement pursuant to Pa.R.A.P.
2119(f) in his Brief. See Appellant’s Br. at 6. Thus, we proceed to address
whether Appellant presents a substantial question.
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3We note that Appellant raised the issue in his Pa.R.A.P. 1925(b) Statement
and the Court addressed the issue, in the alternative. However, this does not
cure waiver. Mann, 820 A.2d at 794.
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Whether a substantial question has been raised regarding discretionary
sentencing is determined on a case-by-case basis. Commonwealth v.
Moury, 992 A.2d 162, 170 (Pa. Super. 2010). “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.” Id. (citation and quotation omitted).
Claims that the sentencing court did not adequately consider mitigating
factors generally do not raise a substantial question. Commonwealth v.
Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013). However, a substantial question
is raised where an appellant alleges, such as in this case, that the sentencing
court imposed a sentence in the aggravated range without adequately
considering mitigating circumstances. See Moury, 992 A.2d at 171. Thus, we
proceed to review the merits of Appellant’s contention that his aggravated
range sentence was excessive and an abuse of the court’s discretion.
Sentencing is a matter vested in the sound discretion of the sentencing
court, and a sentence will not be disturbed on appeal without a manifest abuse
of that discretion. Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa.
Super. 2003). To constitute an abuse of discretion, the sentence must either
exceed the statutory limits or be manifestly excessive; it is not shown merely
by an error in judgment by the court. Id. Rather, the appellant must
demonstrate, by reference to the record, that the sentencing court ignored or
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misapplied the law, exercised its judgment for reasons of partiality, prejudice,
bias or ill will, or arrived at a manifestly unreasonable decision. Id.
Sentencing in Pennsylvania is individualized, and requires the trial court
to fashion a sentence “that is consistent with the protection of the public, the
gravity of the offense as it relates to the impact on the life of the victim and
on the community, and the rehabilitative needs of the defendant[.]”
Commonwealth v. Baker, 72 A.3d 652, 663 (Pa. Super. 2013) (quoting 42
Pa.C.S. § 9721(b)) (internal quotation marks omitted). “The trial court must
also consider the sentencing guidelines adopted by the Pennsylvania
Commission on Sentencing.” Id. Where the trial court reviewed the PSI
report, “we presume that the court properly considered and weighed all
relevant factors in fashioning [Appellant’s] sentence.” Id.
After a careful review of the parties’ arguments and the record, we
conclude that this issue warrants no relief. The trial court detailed its extensive
consideration of Appellant’s PSI report, PPI evaluation, the severity of the
crime, and Appellant’s character in fashioning Appellant’s individualized
sentence. Trial Ct. Op., dated 3/26/19, at 7-8. Based on these factors, it
determined that “[Appellant’s] conduct warrant[ed] a sentence in the
aggravated range[.]” N.T. Sentencing, 10/11/18, at 42. Thus, we conclude
Appellant’s sentence did not violate the fundamental norms underlying the
sentencing process and find no abuse of discretion in the trial court’s sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/7/19
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