Com. v. Burros, T. (memorandum)

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J.S61033/13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. THOMAS BURROS, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 481 EDA 2013 Appeal from the Judgment of Sentence January 11, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division No(s).: CP-51-CR-0003775-2011 BEFORE: ALLEN, MUNDY and FITZGERALD,* JJ. MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 20, 2013 Appellant, Thomas Burros, appeals from the judgment of sentence following his bench convictions for aggravated assault,1 unlawful restraint,2 terroristic threats,3 and recklessly endangering another person.4 He claims his six-to-twelve year sentence of imprisonment violates the Sentencing Code. We affirm. * Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S. § 2702. 2 18 Pa.C.S. § 2902. 3 18 Pa.C.S. § 2706. 4 18 Pa.C.S. § 2705. J. S61033/13 We adopt the facts as set forth by the trial court s opinion. See Trial Ct. Op., 4/15/13, at 2-4. Appellant filed a post-sentence motion,5 which the court denied on February 8, 2013, after a hearing. Appellant filed a timely appeal on February 12, 2013. On February 13, 2013, the court ordered Appellant to comply with Pa.R.A.P. 1925(b) within twenty-one days. Appellant s counsel filed an untimely Rule 1925(b) statement on March 11, 2013, five days after the March 6, 2013 deadline. 6 The trial court prepared a Rule 1925(a) decision. Because the trial court prepared a responsive decision to an untimely-filed Rule 1925(b) statement, we decline to remand for a nunc pro tunc filing of a Rule 1925(b) statement. See generally Pa.R.A.P. 1925(c)(3). Appellant raises the following issues: Did not the sentencing court violate the requirements of 42 Pa.C.S. § 9721(b) of the Sentencing Code which states that the sentence imposed should call for confinement 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, as the lower court seemed to exclusively focus on [A]ppellant s criminal conduct rather than his rehabilitative needs or mitigating circumstances? 5 The motion is not part of the certified record. At the hearing on Appellant s post-sentence motion, Appellant challenged, inter alia, the discretionary aspects of his sentence. N.T., 2/8/13, at 1-7. 6 Pa.R.A.P. 121(e), which provides for additional time after service by mail, does not apply to court orders. See Pa.R.A.P. 121(e). -2- J. S61033/13 Was not the lower court s sentence violative of the precepts of the Pennsylvania Sentencing Code, and contrary to the fundamental norms underlying the sentencing process, and therefore was it not manifestly unreasonable, excessive, and an abuse of discretion? Appellant s Brief at 4. We summarize Appellant s arguments for both of his issues. Appellant contends that the sentencing court failed to consider his mental health, substance abuse, and dysfunctional family when sentencing him. He claims the court failed to explain how the sentence was necessary to protect the community. We hold Appellant is not entitled to relief. This Court has stated that [c]hallenges to the discretionary aspects of sentencing do not entitle an appellant to appellate review as of right. Prior to reaching 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, 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). Objections to the discretionary aspects of a sentence are generally waived if they are not raised at the sentencing hearing or raised in a motion to modify the sentence imposed at that hearing. -3- J. S61033/13 Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa. Super. 2006) (some citations and punctuation omitted). [T]he Rule 2119(f) statement must specify where the sentence falls in relation to the sentencing guidelines and what particular provision of the Code is violated (e.g., the sentence is outside the guidelines and the court did not offer any reasons either on the record or in writing, or double-counted factors already considered). Similarly, the Rule 2119(f) statement must specify what fundamental norm the sentence violates and the manner in which it violates that norm (e.g., the sentence is unreasonable or the result of prejudice because it is 500 percent greater than the extreme end of the aggravated range.). Commonwealth v. Googins, 748 A.2d 721, 727 (Pa. Super. 2000) (en banc). Instantly, Appellant timely appealed, preserved his issues at the postsentence motion hearing,7 and included a Pa.R.A.P. 2119(f) statement in his brief. See Evans, 901 A.2d at 533. Appellant s Rule 2119(f) statement largely complies8 with Googins, supra, as it contends his maximum sentence was disproportionate and not individualized to the circumstances, and asserts that the sentence violates 42 Pa.C.S. § 9781(2). Appellant has raised a substantial question by asserting that his sentence was contrary to 7 As noted above, the motion is not included in the certified record but the issues were raised at the hearing on Appellant s post-sentence motion. 8 Appellant s Rule 2119(f) statement does not explicitly state where the sentence falls in relation to the sentencing guidelines, but because the Commonwealth does not argue waiver, we also decline to find waiver. -4- J. S61033/13 the fundamental norms underlying the sentencing process. See Googins, supra. Accordingly, we examine the merits. In reviewing the decision of the sentencing court, our standard of review is well-settled: 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. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing 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. Commonwealth v. Bowen, 975 A.2d 1120, 1122 (Pa. Super. 2009) (citation omitted). When a presentence investigation report exists, this Court presumes that the sentencing court was aware of relevant information regarding [the defendant s] character and weighed those considerations along with the mitigating statutory factors. Commonwealth v. Fullin, 892 A.2d 843, 849-50 (Pa. Super. 2006) (citation omitted). As our Supreme Court explained: A pre-sentence report constitutes the record and speaks for itself. In order to dispel any lingering doubt as to our intention of engaging in an effort of legal purification, we state clearly that sentencers are under no compulsion to employ checklists or any extended or systematic definitions of their punishment procedure. Having been fully informed by the pre-sentence report, the sentencing court s discretion should not be disturbed. This is particularly true, we repeat, in those circumstances where it can be demonstrated that the judge had any degree of -5- J. S61033/13 awareness of the sentencing considerations, and there we will presume also that the weighing process took place in a meaningful fashion. It would be foolish, indeed, to take the position that if a court is in possession of the facts, it will fail to apply them to the case at hand. Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). 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 pre-sentencing report[,] thus properly considering and weighing all relevant factors. Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009) (citation omitted). Instantly, after careful review of the certified record, the parties briefs, and the decision of the Honorable Donna J. Woelpper, we affirm on the basis of the trial court s opinion. See Trial Ct. Op. at 5-7 (holding court sentenced Appellant within sentencing guidelines; probationary sentence did not exceed statutory maximum; and court reviewed presentence investigation report). Because the sentencing court acknowledged reviewing the presentence investigation report, we presume it was aware of and weighed the information in the report and the mitigating statutory factors. See N.T. Sentencing, 1/11/13, at 26; see also Ventura, 975 A.2d at 1135; Fullin, 892 A.2d at 849-50; see generally Devers, 546 A.2d at 18. Accordingly, having discerned no abuse of discretion, we affirm the judgment of sentence. See Bowen, 975 A.2d at 1122. Judgment of sentence affirmed. -6- J. S61033/13 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/20/2013 -7-

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