Com. v. Newlon, M. (concurring memorandum)
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J-S55020-15 NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. MILO NEWLON, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 182 WDA 2015 Appeal from the Judgment of Sentence Entered December 19, 2014, in the Court of Common Pleas of Erie County, Criminal Division at No(s): CP-25-CR-0000772-2014 CP-25-CR-0000779-2014 BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STRASSBURGER,* JJ. CONCURRING MEMORANDUM BY STRASSBURGER, J.:FILED OCTOBER 19, 2015 I respectfully concur. The Majority herein determines that Appellant’s claim fails to raise a substantial question for our review, citing Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010), and its progeny, for the proposition that “[a]n allegation that the sentencing court failed to consider certain mitigating factors generally does not necessarily raise a substantial question.” Majority Memorandum at 4. Indeed, Moury supports such a proposition. Bowes However, as Judge cogently observed in Commonwealth v. Dodge, 77 A.3d 1263, 1272 n.8 (Pa. Super. 2013), “it is apparent that this Court’s determination of whether an appellant has * Retired Senior Judge assigned to the Superior Court. J-S55020-15 presented a substantial question in various cases has been less than a model of clarity and consistency[.]” Recently, this Court has reiterated several times “that an excessive sentence claim—in conjunction with an assertion that the court failed to consider mitigating Commonwealth v. factors—raises Raven, 97 A.3d a 1244, substantial 1253 (Pa. question.”1 Super. 2014) (emphasis added; citation omitted) (citing Commonwealth v. Perry, 883 A.2d 599, 602 (Pa. Super. 2005)); Commonwealth v. Samuel, 102 A.3d 1001, 1007 (Pa. Super. 2014); Commonwealth v. Gonzalez, 2015 WL 252446, 15 (Pa. Super. 2015); Commonwealth v. Caldwell, 117 A.3d 763 (Pa. Super. 2015). Here, Appellant appears to argue that the court failed to consider certain mitigating factors, such as his age, mental health history, educational background, and lack of a prior criminal record, in fashioning his “excessive” sentence. Appellant’s Brief at 4-7. Accordingly, consistent with recent precedent, I would determine that Appellant’s claim raises a substantial question for this Court’s review. See Raven, supra. However, 1 However, this Court has made no such determination regarding an excessive sentence claim coupled with an assertion that the sentencing court failed to consider adequately mitigating factors. For instance, in Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013), DiSalvo generally claimed that “the trial court abused its discretion by issuing a sentence that is manifestly excessive[.]” This Court ultimately concluded that “a claim of inadequate consideration of mitigating factors does not raise a substantial question for our review.” Disalvo, 70 A.3d at 903 (emphasis added) (quoting Commonwealth v. Downing, 990 A.2d 788, 794 (Pa. Super. 2010)). -2- J-S55020-15 as the learned Majority explains, Appellant’s allegations are belied by the record, and I agree that he is not entitled to relief. Memorandum at 5-9. -3- See Majority
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