Com. v. Leisure, J.

J-S48039-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JUNIUS P. LEISURE,

Appellant No. 302 MDA 2014

Appeal from the Judgment of Sentence January 15, 2014 in the Court of Common Pleas of Lancaster County Criminal Division at No.: CP-36-SA-0000320-2013

BEFORE: DONOHUE, J., JENKINS, J., and PLATT, J.* MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 26, 2014

Appellant, Junius P. Leisure, appeals from the judgment of sentence imposed following his guilty plea to violation of driving while operating privilege is suspended or revoked (DUS), 75 Pa.C.S.A. § 1543(a).1 ____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1 Subsection 1543(a) provides:

Except as provided in subsection (b), any person who drives a motor vehicle on any highway or trafficway of this Commonwealth after the commencement of a suspension, revocation or cancellation of the operating privilege and before the operating privilege has been restored is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of $200.

75 Pa.C.S.A. § 1543(a).

J-S48039-14

Specifically, Appellant challenges the discretionary aspects of his sentence. We affirm.

Previously, Appellant had pleaded guilty to DUS before a magisterial of $1,000, plus costs. Appellant filed a summary appeal and on January 15, 2014, the trial court accepted his guilty plea to violation of driving under suspension. Consequently, Appellant was subject to a fine of not less than $1,000 and a term of imprisonment of not less than 30 days but not more than six months. See 75 Pa.C.S.A. § 6503(a.1).2 The trial court sentenced Appellant to a term of incarceration of not less than sixty days nor more request to give him time to obtain prescriptions for his medication, and to attend to other business. ____________________________________________

2 Sub-section 6503(a.1) provides:

(a.1) Certain repeat offenses. sixth or subsequent offense under section 1543(a) shall be sentenced to pay a fine of not less than $1,000 and to imprisonment for not less than 30 days but not more than six months.

75 Pa.C.S.A. § 6503(a.1).

-2-

J-S48039-14

On February 12, 2014, Appellant filed a motion for reconsideration of sentence, and on February 14, a timely notice of appeal.3

Appellant raises one question for our review on appeal:

Did the trial court abuse its discretion in imposing a minimum sixty-day sentence for driving under suspension, which sentence was clearly unreasonable under the circumstances of the case?

Appellant argues that the minimum sent incarceration was unreasonable, because he gave a ride to a friend, (or fellow employee),4 who was stranded; he has numerous physical and mental disabilities; and is a source of care for a seriously disabled adult child. (See Appellant

Commonwealth v. Austin, 66 A.3d 798, 807 08 (Pa. Super. 2013), appeal denied, 77 A.3d 1258 (Pa. 2013) (citation omitted). ____________________________________________

3 The trial court did not rule on the motion to reconsider. Appellant filed a timely statement of errors on March 12, 2014, and the trial court filed an Opinion Sur Appeal on April 11, 2014. See Pa.R.A.P. 1925(a), (b). 4 (See Trial Court Opinion, 4/11/14, at 3 n.2) (noting that Appellant claimed he was unemployed due to disability, while his counsel explained that the incident occurred because his client was with his boss and a colleague and Appellant volunteered to give his colleague a ride home).

-3-

J-S48039-14

Before [this Court may] reach the merits of [a challenge to the discretionary aspects of a sentence], we must engage in a four part analysis to determine: (1) whether the appeal is timely; (2) whether Appellant preserved his issue; (3) whether

relied upon for allowance of appeal with respect to the discretionary aspects of sentence[, see Pa.R.A.P. 2119(f)]; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code. . . . [I]f the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case.

Id. at 808 (citation omitted).

Here, Appellant filed a timely notice of appeal, and preserved his claim that his sentence of confinement is excessive in the trial court. (See Motion to Reconsider, 2/12/14, at unnumbered page 2, ¶ 6). He has also included in his appellate brief a separate Rule 2119(f) statement. (See Brief, at 8-9). Therefore, we proceed to determine whether Appellant has presented a substantial question that his sentence is not appropriate under the Sentencing Code. See Austin, supra at 808.

The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. A substantial question exists only when the appellant advances a ns were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013), appeal denied, 76 A.3d 538 (Pa. 2013) (citations and quotation marks omitted).

Here, Appellant, in his Rule 2119(f) statement, first claims that the

t 9) (referencing 42

-4-

J-S48039-14

sentencing guidelines but the case involves circumstances where the

generic claim that a sentence is excessive does not raise a

Commonwealth v. Christine, Opinion in Support of Affirmance, 78 A.3d 1, 10 (Pa. Super. 2013) (en banc) (citing Commonwealth v. Harvard, 64 A.3d 690, 701 (Pa. Super. 2013), appeal denied, 77 A.3d 636 (Pa. 2013)).

Additionally, Appellant claims that the trial court focused solely on the gravity of the offense. (See claim, Appellant cites Commonwealth v. Bauer, 604 A.2d 1098, 1101 (Pa.

See Commonwealth v. Bauer, 618 A.2d 396 (Pa. 1993). sentenced based solely on the seriousness of the offense and failed to

Commonwealth v. Macias, 968 A.2d 773, 776 (Pa. Super. 2009); (see also [our Supreme] Court from reviewing most claims challenging the discretionary aspects of sentencing, it is all the more crucial that defendants receive at least one opportunity to receive appellate review of sentences that

-5-

J-S48039-14

raise a substantial question unde Commonwealth v. Mouzon, 812 A.2d 617, 626-27 Mouzon, this Court has held that an excessive sentence claim in conjunction with an assertion that the court failed to consider mitigating factors raises Commonwealth v. Raven, 2014 WL 3907103, *6 (Pa. Super. filed August 12, 2014) (citation omitted). consider the merits of his claim.

merit relief.

Our standard of review of a sentencing challenge 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. Glass, 50 A.3d 720, 727 (Pa. Super. 2012), appeal denied, 63 A.3d 774 (Pa. 2013) (citation omitted).

that the statements at the summary appeal hearing. (See N.T. Summary Appeal, 1/15/14, at 13-14).

See N.T. Summary Appeal,

-6-

J-S48039-14

1/15/14, at 13). The court also noted that Appellant had an obligation to everyone else in the Commonwealth not to drive if his operating privileges are suspended. (See id. at 14). Th conclusion that Appellant was not confronted with a medical or similar emergency. (See id. at 2-13; see also Trial Ct. Op., at 5).

Based on this record, we conclude that the trial court was aware of

xplanation, his claim of multiple disabilities, and his assertion that he helps to care for his disabled adult son. We also conclude that the court gave due consideration to these asserted mitigating factors, (e.g., deferring the date to report for sentence), and did not abuse its discretion in

Finally, we note that while Appellant makes a generalized claim that

victims and 12),5 court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable

Glass, supra at 727 (citation omitted). Accordingly, we affirm

the judgment of sentence. ____________________________________________

5 on the

-7-

J-S48039-14

Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/26/2014

-8-