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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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, 20 15 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 o f 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’ impri sonment with 237 days credit, followed by 1 year of probation after his o pen guilty plea to manufacturing a controlled substance and possession of drug paraphernalia. 1 On appeal, Edinger argues the trial court imposed a n excessive and unreasonable sentence in failing to consider mitiga ting circumstances. For the reasons set forth below, we affirm the judgment of sentence.

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1 35 Pa.C.S. §§ 780-113(a)(30) and 780-113(a)(32), r espectively.J-S54023-16

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The trial court described the procedural history a s follows: 2

On September 8, 2015, [Edinger] entered a guilty pl ea to possession with intent to deliver (“PWID”) and poss ession of drug paraphernalia, as part of a negotiated plea ag reement. 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) [E dinger] 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 A ppeal and Concise Statement of Matters Complained of on Appea l, in which he argued his sentence is “manifestly excessive, cl early unreasonable and inconsistent with the objectives o f the Sentencing Code,” pointing to various mitigating fa ctors. Trial Court Opinion, 2/13/2016 at 1 (footnote omitt ed). 3 The only issue in Edinger’s brief represents a cha llenge to the discretionary aspects of Edinger’s sentence. 4 “A challenge to the

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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, whe re Edinger was incoherent. The location appeared to be a methamphe tamine lab. N.T., 8/17/2015 at 20-23.

3 Edinger filed a concise statement of matters compl ained of on appeal pursuant to Pa.R.A.P. 1925(b) on November 25, 2015.J-S54023-16

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discretionary aspects of a sentence must be conside red 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 cl aim, this Court must determine: (1) Whether appellant has filed a timely notice of appeal; (2) whether the issue was properly preserved at sentenc ing or in a motion to reconsider and modify sentence; (3) wheth er appellant’s brief has a fatal defect; and (4) wheth er there is a substantial question that the sentence appealed fro m 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 p ost-sentence motion challenging the discretionary aspects of his senten ce, as well as a timely notice of appeal. Edinger’s Brief includes the requ isite statement, pursuant to Pa.R.A.P. 2119(f), setting forth the reasons rel ied upon for allowance of appeal. Therefore, we may proceed to determine whet her Edinger has set forth a substantial question that his sentence is i nappropriate 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 discre tion of the judge, and will not be disturbed on appeal absent a manifest a buse of discretion.” Commonwealth v. Sheller , 961 A.2d 187, 190 (Pa. Super. 2008) (citation omitted), appeal denied , 980 A.2d 607 (Pa. 2009).J-S54023-16

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Instantly, the trial court asserts Edinger’s claim that the trial court failed to consider mitigating factors is insufficie nt 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 th e Sentencing Code or is contrary to the fundamental norms underlying the se ntencing 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 Edi nger has raised a substantial question. Although Edinger has raised a substantial question , our review demonstrates his claims are not supported by the ce rtified record. Edinger argues that he deserves a mitigated sentence becaus e he manufactured the drugs for himself and clearly did not intend to dis tribute them, and because his prior sexual offenses should have minimal beari ng 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 offens e and his prior conviction for [possession with intent to distribut e] was a result of a severe drug addiction.” Trial Court Opinion, 1/13/2016 at 4. Implicitly, EdingerJ-S54023-16

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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 consi dered 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 Pen nsylvania Sentencing Guideline used by the trial court is comprised of a Prior Record Score and Offense Gravity Score. The Prior Record Score is ba sed 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 Sc ore, however, does take into account the nature of the crime. The Pennsylva nia Sentencing Guideline matrix does not require the trial court to take int o consideration the natures of Edinger’s previous offenses. Additionally, no ot her authority mandates this consideration. Nevertheless, the trial court specif ically stated to Edinger: Then I have to balance [your young age and guilty p lea] with your criminal record, which starts in the adult sys tem in 2003. And you have a variety of convictions at Clarion Co unty, Armstrong County, Allegheny County, and Erie County , and those include separate sexual assault, statutory se xual assaults, convictions involving minors[,] and I recognize this is – the

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5 We note here that Edinger’s sentence was at the bo ttom 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).J-S54023-16

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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 2 012, and I’m not sure what credit you got on that, but it appear s 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 drug s 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 remov ed from being sentenced on that and now you’re involved in the ma nufacture of another deadly substance which puts yourself and other peop le at risk.” Id. at 11. In further explaining its decision, the trial court stated: [Edinger]’s argument that a mitigated range sentenc e is warranted because he was manufacturing the methamph etamine for his own personal use to support his addiction i s also unpersuasive. While the Court accepts [Edinger]’s a ddictive conduct, which may serve to explain [Edinger]’s beh avior, it does not justify it. The manufacturing of methamphe tamine is a hazardous, dangerous undertaking. It does not just endanger the person making the drugs, but the surrounding ar ea and the community at large. Trial Court Opinion, 1/13/2016 at 4. Accordingly, t he certified record belies Edinger’s claim that the trial court failed to cons ider appropriate mitigating factors.J-S54023-16

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Our review of the record demonstrates the trial co urt 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 exp ress 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 inform ed Edinger that his maximum sentence for Count 5 was 10 years’ imprison ment pursuant to 35 Pa.C.S. § 780-113(f)(1.1). N.T., 9/8/2015 at 8. How ever, in accordance with § 780-115(a), Edinger’s actual maximum sentence was 20 years’ imprisonment. We remind the trial court, prosecutio n, 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.