J-S54023-16 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

STEPHEN CLAYTON EDINGER 

 Appellant No. 1874 WDA 2015 

Appeal from the Judgment of Sentence October 26, 2015 

In the Court of Common Pleas of Erie County 

Criminal Division at No(s): CP-25-CR-0000997-2015 

BEFORE: BENDER, P.J.E., OTT, J., and MUSMANNO, J. 

MEMORANDUM BY OTT, J.: FILED JULY 26, 2016 

 Stephen Clayton Edinger appeals from the judgment of sentence 

entered October 26, 2015 in the Erie County Court of Common Pleas, made 

final by denial of post-sentence motions on October 28, 2015. The trial court 

sentenced Edinger to a term of 6 to 12 years’ imprisonment with 237 days 

credit, followed by 1 year of probation after his open guilty plea to 

manufacturing a controlled substance and possession of drug paraphernalia.1

On appeal, Edinger argues the trial court imposed an excessive and 

unreasonable sentence in failing to consider mitigating circumstances. For 

the reasons set forth below, we affirm the judgment of sentence. 

____________________________________________ 

1

 35 Pa.C.S. §§ 780-113(a)(30) and 780-113(a)(32), respectively. 
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 The trial court described the procedural history as follows:2

On September 8, 2015, [Edinger] entered a guilty plea to 

possession with intent to deliver (“PWID”) and possession of 

drug paraphernalia, as part of a negotiated plea agreement. The 

remaining counts were nolle prossed. On October 26, 2015, 

[Edinger] was sentenced to the following: 

Count 5: 72 months to 144 months of incarceration with 

237 days credit, concurrent with any sentence(s) [Edinger] 

is currently serving; and 

Count 6: 12 months of state supervised probation, 

consecutive to Count 5 above. 

On October 28, 2015 [Edinger] filed a Motion for 

Reconsideration/Modification of Sentence, which was denied by 

Order dated October 28, 2015. 

On November 25, 2015, [Edinger] filed a Notice of Appeal and 

Concise Statement of Matters Complained of on Appeal, in which 

he argued his sentence is “manifestly excessive, clearly 

unreasonable and inconsistent with the objectives of the 

Sentencing Code,” pointing to various mitigating factors. 

Trial Court Opinion, 2/13/2016 at 1 (footnote omitted).3

 The only issue in Edinger’s brief represents a challenge to the 

discretionary aspects of Edinger’s sentence.4 “A challenge to the 

____________________________________________ 

2

 Edinger’s arrest stems from his own 9-1-1 call on January 24, 2015. Police 

responded to the call and arrived on the scene, where Edinger was 

incoherent. The location appeared to be a methamphetamine lab. N.T., 

8/17/2015 at 20-23. 

3

 Edinger filed a concise statement of matters complained of on appeal 

pursuant to Pa.R.A.P. 1925(b) on November 25, 2015.
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discretionary aspects of a sentence must be considered a petition for 

permission to appeal, as the right to pursue such a claim is not absolute.” 

Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa. Super. 2007 (citation 

omitted). In order to reach the merits of such a claim, this Court must 

determine: 

(1) Whether 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) whether 

appellant’s brief has a fatal defect; and (4) whether there is a 

substantial question that the sentence appealed from is not 

appropriate under the Sentencing Code. 

Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011) 

(footnotes omitted). Here, Edinger filed a timely post-sentence motion 

challenging the discretionary aspects of his sentence, as well as a timely 

notice of appeal. Edinger’s Brief includes the requisite statement, pursuant 

to Pa.R.A.P. 2119(f), setting forth the reasons relied upon for allowance of 

appeal. Therefore, we may proceed to determine whether Edinger has set 

forth a substantial question that his sentence is inappropriate under the 

Sentencing Code. See Commonwealth v. Titus, 816 A.2d 251, 255 (Pa. 

Super. 2003). 

(Footnote Continued) _______________________ 

4

 “Sentencing is a matter vested in the sound discretion of the judge, and 

will not be disturbed on appeal absent a manifest abuse of discretion.” 

Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation 

omitted), appeal denied, 980 A.2d 607 (Pa. 2009). 
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 Instantly, the trial court asserts Edinger’s claim that the trial court 

failed to consider mitigating factors is insufficient to state a substantial 

question. See Commonwealth v. McNabb, 819 A.2d 54, 57 (Pa. Super. 

2003). However, we recognize a substantial question exists when an 

appellant sets forth a “colorable argument that the sentence imposed is 

either inconsistent with a specific provision of the Sentencing Code or is 

contrary to the fundamental norms underlying the sentencing process.” 

Commonwealth v. Bentura, 975 A.2d 1128, 1133 (Pa. Super. 2009). 

Pursuant to Commonwealth v. Samuel, 102 A.3d 1001 (Pa. Super. 2014) 

(a claim of an excessive sentence due to failure to consider mitigating 

factors raises a substantial question), we find Edinger has raised a 

substantial question. 

 Although Edinger has raised a substantial question, our review 

demonstrates his claims are not supported by the certified record. Edinger 

argues that he deserves a mitigated sentence because he manufactured the 

drugs for himself and clearly did not intend to distribute them, and because 

his prior sexual offenses should have minimal bearing on this drug-related 

case. Edinger’s Brief at 4-6. “[Edinger] argues his prior record score (“PRS”) 

of five is due in large part to ‘several Statutory Sexual Assault convictions 

from 2008 and 2009’ unrelated to the current offense and his prior 

conviction for [possession with intent to distribute] was a result of a severe 

drug addiction.” Trial Court Opinion, 1/13/2016 at 4. Implicitly, Edinger 
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argues that because the crimes he has plead guilty to here are not sexual in 

nature, his previous sexual offenses should have a minimal impact on his 

sentence. Edinger claims neither the nature of his previous convictions nor 

the personal nature of his drug activity were considered by the trial court in 

its ultimate judgment of sentence.5 Edinger’s Brief at 5-6. 

 With respect to his prior sexual offenses, the Pennsylvania Sentencing 

Guideline used by the trial court is comprised of a Prior Record Score and 

Offense Gravity Score. The Prior Record Score is based on the number of 

prior convictions and whether past convictions were felonies or 

misdemeanors, but does not distinguish between past convictions as drug, 

sexual, or violent offenses. The Offense Gravity Score, however, does take 

into account the nature of the crime. The Pennsylvania Sentencing Guideline 

matrix does not require the trial court to take into consideration the natures 

of Edinger’s previous offenses. Additionally, no other authority mandates this 

consideration. Nevertheless, the trial court specifically stated to Edinger: 

Then I have to balance [your young age and guilty plea] with 

your criminal record, which starts in the adult system in 2003. 

And you have a variety of convictions at Clarion County, 

Armstrong County, Allegheny County, and Erie County, and 

those include separate sexual assault, statutory sexual assaults, 

convictions involving minors[,] and I recognize this is – the 

____________________________________________ 

5

 We note here that Edinger’s sentence was at the bottom end of the 

standard range for his Offense Gravity Score of 11 and Prior Record Score of 

5, which is 6 to 7 1⁄2 years’ imprisonment. See 204 Pa.Code § 303.16(a). 
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present offense is not of sexual nature. But it is concerning 

that you had the possession with intent to deliver heroin 

conviction for which you were sentenced in May of 2012, and I’m 

not sure what credit you got on that, but it appears you may 

have been on supervision at that sentence when [you] 

committed this offense. 

N.T., 10/26/2015 at 10 (emphasis added). 

 With respect to Edinger’s personal use of the drugs he manufactured, 

the trial court told Edinger at his sentencing, “[h]eroin kills people every day 

of the week somewhere, and you’re not too far removed from being 

sentenced on that and now you’re involved in the manufacture of another 

deadly substance which puts yourself and other people at risk.” Id. at 11. 

In further explaining its decision, the trial court stated: 

[Edinger]’s argument that a mitigated range sentence is 

warranted because he was manufacturing the methamphetamine 

for his own personal use to support his addiction is also 

unpersuasive. While the Court accepts [Edinger]’s addictive 

conduct, which may serve to explain [Edinger]’s behavior, it 

does not justify it. The manufacturing of methamphetamine is a 

hazardous, dangerous undertaking. It does not just endanger 

the person making the drugs, but the surrounding area and the 

community at large. 

Trial Court Opinion, 1/13/2016 at 4. Accordingly, the certified record belies 

Edinger’s claim that the trial court failed to consider appropriate mitigating 

factors. 
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 Our review of the record demonstrates the trial court fulfilled its duty 

in considering all the proper factors, and did not abuse its discretion in 

sentencing Edinger to 6 to 12 years’ imprisonment.6

 Judgment of sentence affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 7/26/2016 

____________________________________________ 

6

 Our review of the certified record leads us to express our concern about 

the sufficiency of the guilty plea colloquy, which addressed only one of six 

questions listed in the Comment to Pa.R.Crim.P. 590 (“Is the defendant 

aware of the permissible range of sentences and/or fines for the offenses 

charged?”). The trial court also incorrectly informed Edinger that his 

maximum sentence for Count 5 was 10 years’ imprisonment pursuant to 35 

Pa.C.S. § 780-113(f)(1.1). N.T., 9/8/2015 at 8. However, in accordance with 

§ 780-115(a), Edinger’s actual maximum sentence was 20 years’ 

imprisonment. We remind the trial court, prosecution, and defense counsel 

of the importance of having a complete colloquy and record thereof. The fact 

that Edinger has not complained of the completeness of the guilty plea 

colloquy does not alleviate our concern.