Com. v. Bolton, K.

J-S40037-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KIMBERLY JUNE BOLTON :
:
Appellant : No. 205 WDA 2019
Appeal from the Judgment of Sentence Entered October 1, 2018
In the Court of Common Pleas of Somerset County Criminal Division at
No(s): CP-56-CR-0000344-2017,
CP-56-CR-0000377-2017
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI*, J.
MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 08, 2019
Kimberly June Bolton (Bolton) appeals from the judgment of sentence
imposed in the Court of Common Pleas of Somerset County (trial court) after
her conviction of Recklessly Endangering Another Person (REAP), 18 Pa.C.S.
§ 2705, and Possession with Intent to Deliver a Controlled Substance (PWID),
35 P.S. § 780-113(a)(30). We affirm.
On April 16, 2018, Bolton pleaded guilty to PWID at docket number 377-
2017. The charge arose from a controlled buy set up with a confidential
informant. She pleaded guilty to REAP at docket number 344-2017 for her
role in the distribution of heroin laced with fentanyl that resulted in the
overdose death of the victim. On October 1, 2018, the trial court sentenced
Bolton to an aggregate term of not less than sixteen nor more than forty-eight
months’ incarceration. Bolton filed post-sentence motions challenging the
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* Retired Senior Judge assigned to the Superior Court.
J-S40037-19
discretionary aspects of her sentence on the bases that she had significant
medical problems, she was sentenced at the high end of the standard range
in spite of her light criminal record, and that she pleaded guilty to REAP as a
misdemeanor. The court denied Bolton’s post-sentence motions and Bolton
timely appealed.1 Bolton complied with Rule 1925(b). See Pa.R.A.P. 1925.
On appeal, Bolton maintains that the trial court abused its discretion
when it failed to consider mitigating factors and sentenced her at the high end
of the standard range. (See Bolton’s Brief, at 10-11).
Preliminarily, it is well-settled that review of this issue is not of right.
“The right to appellate review of the discretionary aspects of a sentence is not
absolute, and must be considered a petition for permission to appeal.”
Commonwealth v. Conte, 198 A.3d 1169, 1173 (Pa. Super. 2018) (citation
omitted).
[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
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1 On April 17, 2019, we issued an order directing Bolton to show cause why
her appeal should not be quashed pursuant to Commonwealth v. Walker,
185 A.3d 969 (Pa. 2018), because her notice of appeal contained both docket
numbers. See Walker, supra at 971 (Holding that “where a single order
resolves issues arising on more than one docket, separate notices of appeal
must be filed for each case.”). However, as explained by Bolton, although the
notice of appeal contains both docket numbers, she filed it in both cases, and
the portions of the docket attached to her response confirm this. (Response
to Show Cause, 4/29/19, at 2 ¶ 12, 3 ¶ 13-14; see also id. at Exhibit A, 2-
3; Bolton’s Brief, at 9-10). Therefore, Bolton complied with Walker’s
mandate.
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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. Barnes, 167 A.3d 110, 122 (Pa. Super. 2017) (quoting
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)). The third
part of this test, regarding Pa.R.A.P. 2119, requires that the appellant “set
forth in a separate section of the brief a concise statement of the reasons
relied upon for allowance of appeal with respect to the discretionary aspects
of a sentence.” Pa.R.A.P. 2119(f).
Here, Bolton has included a Rule 2119(f) statement in her brief. It
alleges that the court abused its discretion by sentencing her at the high end
of the standard range and by failing to consider mitigating factors such as her
medical history, her minor criminal record, and the fact that, although the
victim died, Bolton only pleaded guilty to a misdemeanor REAP. (See Bolton’s
Brief, at 8-9). This claim raises a substantial question, although it lacks
merit.2 See Commonwealth v. Hill, ___ A.3d ___, 2019 WL 2204340, at
*9 (Pa. Super. filed May 22, 2019) (finding appellant’s claim of failure to
consider mitigating factors combined with claim of excessive sentence raises
substantial question).
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2 “Sentencing is a matter vested in the sound discretion of the sentencing
judge, and a sentence will not be disturbed on appeal absent a manifest abuse
of discretion.” Commonwealth v. Edwards, 194 A.3d 625, 637 (Pa. Super.
2018) (citation omitted).
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The record reveals that the court considered the victim impact
statements of the victim’s daughter, aunt and mother. (See N.T. Sentencing,
10/01/18, at 4-16). It heard the argument of counsel about Bolton’s ongoing
medical issues and prior record of misdemeanor offenses. (See id. at 16-17).
Bolton also made a statement to the court on her own behalf. (See id. at 17-
19).
Importantly, the trial court had the benefit of a presentence
investigation report (PSI) and explained that it was imposing its sentence, in
part, based on the information contained therein. (See N.T. Sentencing,
10/01/18, at 21). “Our Supreme Court has determined that where the trial
court is informed by a [PSI], it is presumed that the court is aware of all
appropriate sentencing factors and considerations, and that where the court
has been so informed, its discretion should not be disturbed.” Edwards,
supra at 637-38 (citation omitted). “The sentencing judge can satisfy the
requirement that reasons for imposing sentence be placed on the record by
indicating that he or she has been informed by the [PSI]; thus properly
considering and weighing all relevant factors.” Id. (citation omitted).
Before announcing Bolton’s sentence, the court explained that it was
imposing it based on the information contained in the PSI, the comments of
defense counsel and the statements of Bolton and of various family members
of the victim. (See N.T. Sentencing, at 20). The court also stated:
The reasons for the sentence are as follows: The sentence
ends at the highest end of the standard range of the Sentencing
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Guidelines; [Bolton] was part of the causal chain that led to the
overdose death of [the victim] and under the circumstances
presented here, we believe any lesser sentence would depreciate
the seriousness of these offenses.
(N.T. Sentencing, at 21).
Based on the foregoing, we discern no manifest abuse of discretion by
the trial court. See Edwards, supra at 637. Therefore, Bolton’s issue lacks
merit and we affirm her judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/8/2019
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