J-S40029-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

FREEDLE LYNCH

Appellant No. 3374 EDA 2015

Appeal from the Judgment of Sentence September 29, 2015

In the Court of Common Pleas of Bucks County

Criminal Division at No(s): CP-09-CR-0004415-2015

BEFORE: BOWES, J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.: FILED JULY 06, 2016

Appellant, Freedle Lynch, appeals from the September 29, 2015 

aggregate judgment of sentence of 18 to 36 months’ imprisonment, imposed 

following an open guilty plea to retail theft, resisting arrest, and false 

identification to law enforcement authorities.1 After careful review, we 

affirm.

The relevant facts as gleaned from the certified record are as follows. 

On June 30, 2015, Appellant was arrested following a shoplifting incident at 

a Walmart in Levittown, Pennsylvania. Trial Court Opinion, 1/12/16, at 1. 

Walmart employees observed Appellant concealing merchandise in Walmart 

shopping bags and then exiting the store without paying for the items. Id.

____________________________________________

1 18 Pa.C.S.A. §§ 3929(a)(1), 5104, and 4914(a). 
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Walmart employees identified themselves and Appellant dropped the 

merchandise and fled. Id. Police arrived, and after a brief struggle 

handcuffed Appellant. Id. at 2. The police conducted a search and 

discovered Appellant was concealing several Walmart watches on his person. 

Id.

On September 29, 2015, Appellant entered an open guilty plea to the 

aforementioned crimes. Appellant was sentenced that same day to an 

aggregate sentence of 18 to 36 months’ imprisonment.2 Later on 

September 29, 2015, Appellant filed a motion to reconsider his sentence. 

On October 23, 2015, Appellant’s motion was denied. On November 6, 

2015, Appellant filed a timely notice of appeal.3

On appeal, Appellant raises the following issue for our review.

Did the trial court abuse its discretion when it 

sentenced [Appellant] in the aggravated range of the 

guidelines where the [trial] court ignored mitigating 

evidence, such as his extremely poor health, his wife 

sought to speak on his behalf, he accepted 

responsibility by pleading guilty, he exhibited good 

conduct, and the [trial] court otherwise relied on 

inadequate and unproven concerns?

Appellant’s Brief at 4.

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2 Specifically, Appellant was sentenced to 18 to 36 months’ imprisonment for 

retail theft. No further penalty was imposed on the remaining counts.

3 Appellant and the trial court have complied with Pennsylvania Rule of 

Appellate Procedure 1925.
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Appellant’s sole issue on appeal pertains to the discretionary aspects 

of his sentence.4 

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. Gonzalez, 109 A.3d 711, 726 (Pa. Super. 2015), 

quoting Commonwealth v. Hoch, 936 A.2d 515, 517-518 (Pa. Super. 

2007). “There is no absolute right to appeal when challenging the 

discretionary aspect of a sentence.” Commonwealth v. Tobin, 89 A.3d 

663, 666 (Pa. Super. 2014) (citation omitted). When an appellant makes an 

argument pertaining to the discretionary aspects of the sentence, this Court 

considers such an argument to be a petition for permission to appeal. 

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014) 

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4 Generally, our cases state that “by entering a guilty plea, the defendant 

waives his right to challenge on direct appeal all nonjurisdictional defects 

except the legality of the sentence and the validity of the plea.” 

Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa. Super. 2013) (citation 

omitted), appeal denied, 87 A.3d 319 (Pa. 2014). However, our cases also 

hold that the entry of an open guilty plea does not waive the discretionary 

aspects of the sentence “because there was no agreement as to the 

sentence Appellant would receive.” Commonwealth v. Hill, 66 A.3d 365, 

367 (Pa. Super. 2013) (citation omitted).
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(en banc) (citation omitted), appeal denied, 104 A.3d 1 (Pa. 2014). “[A]n 

[a]ppeal is permitted only after this Court determines that there is a 

substantial question that the sentence was not appropriate under the 

sentencing code.” Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. 

Super. 2013) (en banc) (internal quotation marks and citation omitted).

Prior to reaching the merits of a discretionary aspects of sentencing 

issue, this Court is required to conduct a four-part analysis to determine 

whether a petition for permission to appeal should be granted. 

Commonwealth v. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014) 

(citation omitted), appeal denied, 99 A.3d 925 (Pa. 2014). Specifically, we 

must determine the following.

(1) [W]hether appellant has filed a timely notice of 

appeal, Pa.R.A.P. 902, 903; (2) whether the issue 

was properly preserved at sentencing or in a motion 

to reconsider and modify sentence, Pa.R.Crim.P. 

[720]; (3) whether appellant’s brief has a fatal 

defect, Pa.R.A.P. 2119(f); and (4) whether there is a 

substantial question that the sentence appealed from 

is not appropriate under the Sentencing Code, 42 

[Pa.C.S.A.] § 9781(b).

Id. (citation omitted).

Instantly, Appellant filed a timely motion for reconsideration of his 

sentence, and a timely notice of appeal. Also, Appellant’s brief includes a 

Rule 2119(f) statement. Appellant’s Brief at 10-11. We therefore proceed 

to address whether Appellant has raised a substantial question for our 

review.
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“The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis.” Commonwealth v. Edwards, 71 A.3d 

323, 330 (Pa. Super. 2013) (citations omitted), appeal denied, 81 A.3d 75 

(Pa. 2013). “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.” Id. 

(citations omitted). 

Instantly, Appellant asserts the trial court “ignored mitigating factors, 

and failed to state sufficient reasons that were not already contemplated in 

the sentencing recommendation for sentencing outside the standard range.” 

Appellant’s Brief at 14. This Court has held that “a claim that the [trial] 

court erred by imposing an aggravated range sentence without consideration 

of mitigating circumstances raises a substantial question.” Commonwealth 

v. Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003) (en banc) (citation 

omitted). We therefore proceed to review the merits of Appellant’s claim.

At the outset we note that the trial court agrees with Appellant that he 

was sentenced in the aggravated range. Trial Court Opinion, 1/12/16, at 3. 

At sentencing, the trial court noted that the standard sentencing guideline 

range is 6 to 16 months, and 19 months in the aggravated range. N.T., 

9/29/15, at 17. In its Rule 1925(a) opinion, the trial court explained its 

reasoning for sentencing Appellant in the aggravated range as follows.
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Contrary to [Appellant]’s assertion, th[e trial c]ourt 

stated its reasons for imposing a sentence in the 

aggravated range of the sentencing guidelines. Prior 

to imposing sentence th[e trial c]ourt stated,

THE COURT: I take the sentencing guidelines 

into consideration. I also take into 

consideration the lengthy, lengthy prior 

criminal history with multiple felony offenses 

that have resulted in this [Appellant] being 

incarcerated for substantial periods beginning 

in 1978 and continuing consistently from 1978 

through...

THE DEFENDANT: Excuse me your [H]onor.

***

THE COURT: Based on the extensive and 

repeated criminal history that has only been 

abated as a result of his incarceration and 

removal from the street, [this Court fashioned 

sentence]. 

From the above recitation, it is clear that th[e trial 

c]ourt placed adequate reasons on the record for 

imposing an aggravated range sentence. This was 

the [Appellant]’s eighth felony conviction. He has 

been consistently committing criminal offenses for a 

period of thirty-eight years. His criminal activity 

ceases only when incarcerated. Based on his 

criminal history, it is clear that the factors set forth 

in 42 Pa.C.S. § 9721(b) - i.e. the protection of the 

public, the gravity of the offense as it relates to the 

impact on the victim and the community, the 

defendant’s rehabilitative needs, and the sentencing 

guidelines, warranted the sentence imposed.

[Appellant]’s assertion that th[e trial c]ourt 

abused its discretion in light of the mitigating 

evidence presented is likewise without merit. The 

evidence [Appellant] relies upon - i.e. his age, his 

family and his health does nothing to mitigate 

[Appellant]’s conduct. He has continued to commit 
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crime throughout his lifetime despite the needs of his 

family. His self-reported medical condition has not 

prevented him from working when he chooses to do 

so. He has disregarded the needs of his family for 

thirty-eight years and cannot now rely on them to 

mitigate his continued criminal conduct.

Trial Court Opinion, 1/12/16, at 3 (footnotes omitted).

Upon careful review, we conclude the trial court did not abuse its 

discretion. The foregoing clearly demonstrates that the trial court was 

aware of, and considered, all of the mitigating circumstances. The trial court 

acknowledged it was going beyond the standard sentencing guideline 

recommendations by imposing a sentence in the aggravated range and 

noted its reasons for doing so on the record. N.T., 9/29/15, at 13-16. 

Accordingly, we conclude that the trial court considered the mitigating 

factors but determined they were outweighed by Appellant’s extensive 

criminal history and inability to reform his conduct. See Commonwealth v. 

Bowen, 975 A.2d 1120, 1127 (Pa. Super. 2009) (holding Appellant’s 

“recidivist history” was a permissible factor “in imposing an aggravatedrange sentence[]”). Therefore, the trial court did not abuse its discretion in 

sentencing Appellant in this case. See Gonzalez, supra.

Based on the foregoing, we conclude the trial court did not abuse its 

discretion in sentencing Appellant. Therefore, we affirm the September 29, 

2015 judgment of sentence.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/6/2016