J-S22034-19

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JAMES H. SCHMIDTBERG 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1854 MDA 2018

Appeal from the Judgment of Sentence Entered October 8, 2018

In the Court of Common Pleas of Clinton County Criminal Division at 

No(s): CP-18-CR-0000460-2017

BEFORE: SHOGAN, J., DUBOW, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.: FILED JUNE 04, 2019

James H. Schmidtberg (Schmidtberg) appeals from the judgment of 

sentence of one to three years’ incarceration imposed by the Court of Common 

Pleas of Clinton County (trial court) following a negotiated guilty plea to one 

count of Receipt of Stolen Property (RSP). We affirm.

The facts are not contained in the briefs nor the trial court opinion and 

the guilty plea was not transcribed. We, therefore, adopt the facts set forth 

in the criminal complaint. On July 14, 2017, Officer Bryan Burger of the Lock 

Haven City Police Department responded to a report of a motorcyclist riding 

at a high rate of speed on a residential road. Officer Burger spoke to 

Schmidtberg, who was standing next to a parked motorcycle. Schmidtberg 

declined to identify himself, prompting the officer to radio dispatch with the 

motorcycle’s registration information and vehicular identification number. 
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Dispatch responded that the vehicle was listed as stolen from New Jersey. 

Schmidtberg was arrested and charged with, among other offenses, RSP

graded as a Felony of the Third Degree.

On March 15, 2018, Schmidtberg agreed to plead guilty to RSP. In 

exchange, the Commonwealth withdrew the remaining charges and agreed to 

raise no objection to a standard range sentence. The submitted guilty plea 

documentation calculated Schmidtberg’s minimum standard range sentence 

as nine to 16 months’ incarceration based on a prior record score (PRS) of 

four and an offense gravity score of five.

1

 Sentencing was postponed until 

October 8, 2018.

Working from those calculations, the Clinton County Probation Office

prepared a pre-sentence report recommending a sentence of one to three 

years’ incarceration. However, Schmidtberg and the Commonwealth later 

agreed that the PRS was incorrectly calculated. The new calculation, which 

was submitted to the court prior to sentencing, set Schmidtberg’s PRS at three

and the recalculated minimum standard range sentence was six to 16 months’ 

incarceration. 204 Pa. Code § 303.16(a).

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1 The offense gravity score of five for RSP applies if the property in question 

was valued between $2,000 and $25,000. See 204 Pa. Code § 303.15.
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Schmidtberg ultimately received a sentence of one to three years’

incarceration. He did not file post-sentence motions and timely appealed, 

raising two challenges to the discretionary aspects of his sentence.2

Such challenges are not appealable as of right and must be considered 

as a petition for permission to appeal. Commonwealth v. Conte, 198 A.3d 

1169, 1173 (Pa. Super. 2018) (citation omitted). “An appellant must satisfy 

a four-part test to invoke this Court’s jurisdiction when challenging the

discretionary aspects of a sentence.” Id. (citation omitted). “We conduct this 

four-part test to determine whether: (1) the appellant preserved the issue 

either by raising it at the time of sentencing or in a post[-]sentence motion; 

(2) the appellant filed a timely notice of appeal; (3) the appellant set forth a 

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2 The brief presents those issues as:

I. Whether the lower court committed an error of law / abuse of 

discretion in sentencing the appellant consistent with the 

recommendations contained in the pre–sentence investigation 

report (PSI) despite the fact that the PSI incorrectly attributed a 

prior record score of five (5) to the appellant, when, in fact, his 

prior record score was a three (3)[.]

II. Whether the lower court committed an error of law / abuse of 

discretion in sentencing the appellant to a term of incarceration at 

a state correctional institution by failing to properly consider 

various aspects of Appellant’s personal life, including Appellant’s 

wife’s health conditions, Appellant’s voluntary attendance at 

numerous hearings during his time on bail, and his employment 

options in the local area[.]

Schmidtberg’s Brief at 7.
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concise statement of reasons relied upon for the allowance of his appeal 

pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises a substantial 

question for our review.” Id. (citation omitted).

Both claims fail the first requirement as Schmidtberg did not raise these 

issues at the time of sentencing or in a post-trial motion. “Issues challenging 

the discretionary aspects of a sentence must be raised in a post-sentence

motion or by presenting the claim to the trial court during the sentencing 

proceedings. Absent such efforts, an objection to a discretionary aspect of a

sentence is waived.” Commonwealth v. Lamonda, 52 A.3d 365 (Pa. Super. 

2012) (quoting Commonwealth v. Shugars, 895 A.2d 1270, 1273–74 (Pa.

Super. 2006)). Timely requests give the sentencing judge an opportunity to 

correct its mistakes, if any. “Although contemporaneous objections operate 

to preserve issues for appellate review, they serve an equally important 

function in obviating appeals by affording the trial court a timely opportunity 

to correct mistakes and/or to reconsider decisions.” Commonwealth v. 

Reaves, 923 A.2d 1119, 1131 (Pa. 2007) (emphasis in original).

In any event, both claims are meritless. As to the first issue, 

Schmidtberg argues that the trial court erroneously imposed a sentence 

consistent with the probation department’s recommendation that was based 

on guideline calculations that proved to be incorrect. The trial court aptly 

explains why this argument fails: “Defendant ignores the obvious response 

which is that the Court sentences Defendant, not the Adult Probation Office. 
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This Court sentenced Defendant to a standard range sentence.” Trial Court 

Opinion, 12/3/18, at 2.

The second claim is actually directed to the trial court’s discretion as

Schmidtberg claims that the court failed to consider a host of mitigating 

factors in imposing its sentence.3 However, the trial court was well aware of 

those points as Schmidtberg presented them as a basis to consider his request 

for a county sentence with electronic monitoring. Contrary to Schmidtberg’s 

assertion that “It is quite clear . . . that the trial court completely ignored” the 

mitigating circumstances, it is obvious that the trial court simply did not give 

those considerations the weight Schmidtberg would have liked. See 

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (reviewing court 

must presume court weighed the information disclosed to it; “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.”).

Finally, Schmidtberg’s argument fails to recognize the significance of the 

fact that his sentence was within the recommended guideline ranges. In 

support of a remand for resentencing, he relies on Commonwealth v. Smart, 

564 A.2d 512 (Pa. Super. 1989), where the sentencing court imposed a 

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3

In addition to failing to raise and preserve a claim that the judge failed to 

adequately consider these circumstances, this allegation generally fails to 

present a substantial question. See Commonwealth v. Moury, 992 A.2d 

162, 171 (Pa. Super. 2010).
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sentence for burglary that exceeded the high end of the recommended 

aggravated range by over two and one-half times. We determined that the 

sentence constituted an abuse of discretion for various reasons, including the 

judge’s failure to consider “factors tending to mitigate the gravity of the 

offense.” Id. at 514.4

In this case, though, Schmidtberg’s sentence was not only within the 

guidelines, it was within the standard range. Pursuant to 42 Pa.C.S. § 

9781(c), when the sentencing court has imposed a sentence within the 

guidelines, we can vacate and remand only if “the case involves circumstances 

where the application of the guidelines would be clearly unreasonable.” 42 

Pa.C.S. § 9781(c)(2). In Commonwealth v. Walls, 926 A.2d 957 (Pa. 

2007), our Supreme Court noted that reasonableness is not defined in the 

statute and “commonly connotes a decision that is ‘irrational’ or ‘not guided 

by sound judgment.’” Id. at 963. There is no basis to conclude this sentence

was the product of irrationality.

Our review of the record is governed by 42 Pa.C.S. § 9781(d), stating 

that we shall consider the following:

(1) The nature and circumstances of the offense and the history 

and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the 

defendant, including any presentence investigation.

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4 Smart also expressed concern that the defendant was “being punished for 

crimes of which he was acquitted.” Id.
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(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

Id. Nothing about the imposed sentence raises a question as to its 

reasonableness under those standards. Since the judge took into account the 

general standards of sentencing, 42 Pa.C.S. § 9721(b), we would affirm even 

if these issues were properly preserved and presented.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 06/04/2019