Com. v. Alexander, D.

J-S65019-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DENISE ALEXANDER
Appellant No. 3513 EDA 2013
Appeal from the Judgment of Sentence June 25, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1114766-2008
BEFORE: PANELLA, OLSON and PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 25, 2014
Appellant, Denise Alexander, appeals from the judgment of sentence
entered on June 25, 2013, as made final by the denial of Appellant’s post-
sentence motion on June 26, 2013. We affirm.
The trial court ably explained the underlying facts of this case as
follows:
On May 13, 2013, Appellant [entered a plea of nolo
contendere to charges of] aggravated assault, [criminal]
conspiracy, and endangering the welfare of a child[1]. . . .
[The Commonwealth alleged that, in] November 2006,
[N.L.] was a [five-year-old] foster child[, who was] placed
with Appellant and [Appellant’s] co-defendant, John Carter,
at 6249 Cottage Street in the City and County of
Philadelphia. At a certain point, [N.L.] was put in “time-out”
for violating the house rules. While in time-out, [N.L.]
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18 Pa.C.S.A. §§ 2702(a), 903(a), and 4304(a), respectively.
*Retired Senior Judge assigned to the Superior Court.
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urinated himself. Appellant and Mr. Carter then brought
[N.L.] to the bathtub. While Mr. Carter held the boy,
Appellant turned on scalding hot water in the shower. The
water pooled around [N.L.’s] feet, causing second degree
burns and causing the skin to peel off of [N.L.’s] feet. Due
to his injuries, [N.L.] had to undergo physical therapy in
order to walk again. [N.L.] also had wounds on his back
that were consistent with having been whipped with an
extension cord. [N.L.] told the Commonwealth that the
injuries were caused by Appellant and Mr. Carter.
Trial Court Opinion, 4/16/14, at 1-2 (internal citations omitted).
On June 25, 2013, the trial court sentenced Appellant to an aggregate
term of three to six years in prison for the above convictions. N.T.
Sentencing, 6/25/13, at 17-18.
Appellant filed a timely post-sentence motion, wherein Appellant
claimed that her sentence was excessive because she “accepted
responsibility and [pleaded] no contest”2 and because Appellant “has no
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2
We have explained:
a plea of nolo contendere does not, by its very nature,
require the pleading defendant to concede his or her guilt.
As the United States Supreme Court has held, a plea of nolo
contendere is “a plea by which a defendant does not
expressly admit his guilt, but nonetheless waives his right to
a trial and authorizes the court for purposes of sentencing
to treat him as if he were guilty.” North Carolina v.
Alford, 400 U.S. 25, 36 (1970). The [United States]
Supreme Court further noted in Alford that “[T]he
Constitution does not bar imposition of a prison sentence
upon an accused who is unwilling expressly to admit his
guilt but who, faced with grim alternatives, is willing to
waive his trial and accept the sentence.” Id. at 36.
Commonwealth v. Lewis, 791 A.2d 1227, 1234 (Pa. Super. 2002).
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prior convictions and has a prior record score of zero.” Appellant’s Post-
Sentence Motion, 6/26/13, at 1-2. Appellant requested that the trial court
vacate her sentence and re-sentence her to a lesser term of imprisonment.
Id.The trial court denied Appellant’s post-sentence motion on June 26,
2013 and Appellant filed a timely notice of appeal. Appellant now raises the
following claims to this Court:3
1. Did not the [trial] court abuse its discretion when it failed
to consider Appellant’s history of mental illness in
determining Appellant’s sentence in violation of
Pennsylvania’s individualized sentencing requirement and
imposed a manifestly excessive and clearly unreasonable
sentence?
2. Did not the sentencing court abuse its discretion by not
properly applying Appellant’s nolo [contendere] plea to
aggravated assault, conspiracy, and endangering the
welfare of a child as a mitigating factor?
Appellant’s Brief at 4.
Appellant’s challenges are to the discretionary aspects of her sentence.
We note that “sentencing is a matter vested in the sound discretion of the
sentencing judge, whose judgment will not be disturbed absent an abuse of
discretion.” Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super.
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3
The trial court ordered Appellant to file and serve a concise statement of
errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). Appellant complied with the order and, within her Rule
1925(b) statement, Appellant listed the claims she currently raises on
appeal.
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2001). Moreover, pursuant to statute, Appellant does not have an automatic
right to appeal the discretionary aspects of her sentence. See 42 Pa.C.S.A.
§ 9781(b). Instead, Appellant must petition this Court for permission to
appeal the discretionary aspects of her sentence. Id.
As this Court has explained:
[t]o reach the merits of a discretionary sentencing issue, we
conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, Pa.R.A.P. 902,
903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify
sentence, 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. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).
Appellant’s first claim on appeal contends that, at sentencing, the trial
court “failed to consider Appellant’s history of mental illness.” Appellant’s
Brief at 4. This claim is waived, as Appellant did not raise this discretionary
aspect of sentencing claim during her sentencing hearing or in her post-
sentence motion. See Pa.R.Crim.P. 720; Pa.R.A.P. 302(a) (“[i]ssues not
raised in the lower court are waived and cannot be raised for the first time
on appeal”); Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super.
2013) (“issues challenging the discretionary aspects of a sentence must be
raised in a post-sentence motion or by presenting the claim to the trial court
during the sentencing proceedings. Absent such efforts, an objection to a
discretionary aspect of a sentence is waived”); see also Commonwealth v.
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Sherwood, 982 A.2d 483, 494 (Pa. 2009) (holding “that inclusion of an
issue in a [Rule] 1925(b) statement that has not been previously preserved
does not entitle [the] litigant to appellate review of the unpreserved claim”).
For Appellant’s second and final claim on appeal, Appellant contends
that the trial court “failed to adequately consider Appellant’s nolo
[contendere] plea as a mitigating factor” at sentencing. Appellant’s Brief at
9. Appellant preserved this claim by filing a timely notice of appeal,
presenting the claim in her post-sentence motion, and including the claim in
her Rule 2119(f) statement. Nevertheless, the claim does not raise a
“substantial question that the sentence appealed from is not appropriate
under the Sentencing Code.” Cook, 941 A.2d at 11. Therefore, we may not
reach the merits of the claim.
Generally, to raise a substantial question, an appellant must “advance
a colorable argument that the trial judge’s actions were: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing process.”
Commonwealth v. McKiel, 629 A.2d 1012, 1013 (Pa. Super. 1993);
Commonwealth v. Goggins, 748 A.2d 721, 726 (Pa. Super. 2000) (en
banc), appeal denied, 759 A.2d 920 (Pa. 2000). Moreover, in determining
whether an appellant has raised a substantial question, we must limit our
review to Appellant’s Rule 2119(f) statement. Goggins, 748 A.2d at 726.
This limitation ensures that our inquiry remains “focus[ed] on the reasons
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for which the appeal is sought, in contrast to the facts underlying the appeal,
which are necessary only to decide the appeal on the merits.” Id. at 727(internal emphasis omitted).
In her Rule 2119(f) statement, Appellant claims that, at sentencing,
the trial court abused its discretion by “fail[ing] to adequately consider
Appellant’s nolo [contendere] plea as a mitigating factor.” Appellant’s Brief
at 9. In the case at bar, however, Appellant was sentenced in the standard
range of the sentencing guidelines.4 As such, Appellant’s claim – that the
trial court “failed to consider” a certain mitigating factor – does not raise a
substantial question that her sentence is inappropriate under the Sentencing
Code. See Commonwealth v. McNabb, 819 A.2d 54, 57 (Pa. Super.
2003) (“an allegation that the sentencing court did not consider certain
mitigating factors does not raise a substantial question”); see
Commonwealth v. Dunphy, 20 A.3d 1215, 1222 (Pa. Super. 2011) (“[a]n
allegation that the sentencing court ‘failed to consider’ or ‘did not adequately
consider’ various factors does not raise a substantial question that the
sentence was inappropriate”), quoting McKiel, 629 A.2d at 1013; see also
Commonwealth v. Felmlee, 828 A.2d 1105, 1106 (Pa. Super. 2003) (a
claim that the trial court “erred by imposing an aggravated range sentence
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4
Certainly, as the trial court noted, Appellant was sentenced at the bottom
of the standard range of the sentencing guidelines. See Trial Court Opinion,
4/16/14, at 2-3.
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without consideration of mitigating circumstances raises a substantial
question”) (emphasis added). Therefore, we may not reach the merits of
Appellant’s claim.5
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/25/2014
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5
Further, even if Appellant’s claim did raise a substantial question, the claim
would fail on its merits, as the trial court indeed determined that Appellant’s
plea of nolo contendere was a mitigating factor at sentencing. However, the
trial court determined that the plea did not entitle Appellant to a lesser
sentence than the one she received. See N.T. Sentencing, 6/25/13, at 17-
18 (the trial court informed Appellant: “I understand that you plead[ed nolo
contendere] and I keep looking for a reason to mitigate. . . . I cannot in
good faith mitigate as far as your client would wish. . . . Putting a child[] in
a bathtub that he is so badly burned he has to relearn how to walk, it defies
imagination. I cannot mitigate. Because you did plead [nolo contendere], it
will be [three] to [six] years . . .”).
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