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

v.

JESSE MICHAEL WATSON ,

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 941 MDA 2019 Appeal from the Judgment of Sentence Entered May 13, 2019 i n the Court of Common Pleas of Bradford County Criminal Division at No(s): CP

- 08

- CR

- 0000291

- 2018 BEFORE: BENDER, P.J.E., KING, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.: FILED MARCH 27, 2020 Jesse Michael Watson (“Watson”) appeals from the judgment of
sentence imposed following his entry of a nolo contendere plea to one count of tampering with evidence. 1 We affirm.
Watson was arrested on March 31, 2018, following an incident at his home in Sayre, Pennsylvania. A Sayre police officer was in the process of issuing Watson a citation re lated to Watson’s unleashed dog. During the interaction, the officer observed Watson pick up a glass pipe that was sitting at his feet and put it into his sweatshirt pocket. The officer instructed Watson to remove the pipe from his pocket, and Watson refused

. A scuffle ensued, and Watson threw the pipe inside the house before closing the door behind him

. Watson was eventually arre sted, his dogs were contained, and he was

_________________ __________ ______ ____ _______ 1 See 18 Pa.C.S.A. § 4910(1).J

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charged with tampering, resisting arrest, possession of marijuana, escape, and possession of drug paraphernalia following the incident. 2 On June 1, 2018, Watson filed an omnibus pre

- trial Motion requesting, in par t, to suppress the physical evidence seized during the incident

. On September 11, 2018, the trial court held a pretrial hearing, where Watson admitted to possessing the paraphernalia . Watson further admitted to throwing the pipe into the house, and to sh utting the door behin d him. N.T., 9/11/18, at 4

- 7. The trial court denied the Motion on November 13, 2018.
On March 14, 2019, Watson entered a plea of nolo contendere , pursuant to a plea agreement . T he trial court sentenced him to time served to 23 month s , 29 days in prison, and he was immediately paroled. 3 Watson filed a timely post

- sentence Motion to modify his sentence, arguing that his sentence
was excessive given his plea. T he trial court denied his Motion, and this timely appeal followed. Watson raises, as his sole issue, “[whether] the sentence imposed by the [trial] court was excessive[.]” Brief for Appellant at 3. Watson challenges the discretionary aspects of his sentence. Watson claims that the sentence he received was outside the a ggravated range of the sentencing guidelines. Id. at 9. He argues that the 265 days in prison served prior to his sentencing

_________________ __________ ______ ____ _______ 2 See 18 Pa.C.S.A. § 4910(1); 5104; 5121(a ); 35 P .S. §§ 780

- 113(a)(31), (32).

3 Watson’s bail was previously revoked on July 2, 2018, following an unrelated arrest in New York. On October 30, 2018, Watson filed a Motion to reinstate his bail for the instant offenses, which the trial court denied.J

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far exceeds the aggravated range, and the trial court failed to consider Watson’s prior record score, background, and time served in calculating its
maximum sentence. Id. at 11

- 12. We approach Watson’s argument mindful that the right to appeal a challenge to the discretionary aspects of a sentence is not absolute. Commonwealth v. Williams , 787 A.2d 1085, 1087 (Pa. Super. 2001). [T]o reach the merits of a discretionary sentencing issue, we must determine: (1) whether the appellant has filed a timely notice of appeal; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence; (3) wh ether the appellant’s brief has a fatal defect, [ s ] ee Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is inappropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b). Id. at 1087

- 88 (cit ation omitted). Watson’s brief sub stantially complies with the first three requirements. 4 Therefore, we will determine whether there is a substantial question requiring us to review the discretionary aspects of his sentence

. “The determination of what constitutes a subs tantial question must be evaluated on a case

- by

- case basis.” Commonwealth v. Prisk , 13 A.3d 526,

_________________ __________ ______ ____ _______ 4 Watson’s brief does not include a separate concise statement pursuant to Pa.R.A.P. 2119(f). Instead, Watson inc orporates his concise statement into the argument section, and attaches the sentencing guideline forms “to satisfy [the Rule 2119(f) ] requirem ent.” Brief for Appellant at 9. Because the Commonwealth has not objected to the Rule 21 19(f) statement , we will proceed to determine whether there exists a substantial question. See Commonwealth v. Kiesel , 854 A.2d 530, 533 (Pa. Super. 2004) (explainin g that this Court may ignore the omission of a Rule 2119(f) statement, and proceed to the substantial question analysis, when the appellee does not object to the omission ).J

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533 (Pa. Super. 2011). “A substantial question exists only when the appellant advances a colorable argument that the sentencing judge’s actions 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. Battles , 169 A.3d 1086, 1090 (Pa. Super. 2017). Merely claiming that a sentence is excessive or unreasonable does not raise a substantial question. Commonwealth v. Hornaman , 920 A.2d 1282, 1284 (Pa. Super. 2007)

. Watson’s claim fails to raise a substantial question. Here, as Watson recognizes, the negotiated plea agreement provided for a minimum sentence of time served, which the trial court imposed, while the maximum sentence was left to the trial court’s disc retion. See Brief for Appellant at 11

- 12 ; see also N.T., 5/13/19, at 3 ( wherein Watson’s counsel stat es that the plea agreement calls for a minimum of time served, and requests for the trial court to follow the plea agreement and impose a short tail). As a result, Watson has not raised a substantial question. See Commonwealth v. Dalberto , 648 A.2d 16, 21 (Pa. Super. 1994) (holding that an appellant has no authority to challenge the discretionary aspects of an imposed sentence when a plea agreement includ es a negotiated sentence accepted and imposed by the sentencing court) ; Commonwealth v. Moser , 999 A.2d 602, 606 (Pa. Super. 2010) (stating that “a nolo contendere plea has the same effect as a guilty plea for purposes of sentencing and is considered a con viction[.]”)

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Additionally, Watson’s maximum sentence of 23 months, 29 days falls within the statutory maximum. See 18 Pa.C.S.A. § 4910 (1) (stating that tampering with evidence is a misdemeanor of the second degree); 18 Pa.C.S.A. § 106(b)(7) (stating tha t the maximum sentence for a misdemeanor of the second degree is two years); Commonwealth v. Kimbrough , 872 A.2d 1244, 1263 (Pa. Super. 2005) (explaining that “[w]hen the sentence is within the range prescribed by statute, a challenge to the maximum senten ce imposed does not set forth a substantial question as to the appropriateness of the sentence under the guidelines.”). A ccordingly , Watson has not raised a substantial question, and we cannot grant him relief on his claim. 5 Judgment of sentence affirmed.
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 03/27/2020

_________________ __________ ______ ____ _______ 5 Furthermore, the trial court had the benefit of a pre

- sentence investigation repo rt, heard Watson’s testimony during the omnibus pre

- trial hearing, and stated its reasons for imposing its sentence on the record. See N.T., 5/13/19, at 3

- 5, 7

- 8; Commonwealth v. Moury , 992 A.2d 162, 171 (Pa. Super. 2010) (stating that, when the sentencin g court had the benefit of a pre

- sentence investigation report, “[this Court] assume[s] the sentencing court was aware of the relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors. ” (internal quotations omitted)).