J-S05011-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DESIREE L. TIPPING 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 891 WDA 2018

Appeal from the Judgment of Sentence March 21, 2018

In the Court of Common Pleas of Potter County 

Criminal Division at No(s): CP-53-CR-0000147-2016

BEFORE: PANELLA, P.J., NICHOLS, J., and STRASSBURGER*, J.

MEMORANDUM BY PANELLA, P.J.: FILED AUGUST 23, 2019

Desiree L. Tipping appeals from the judgment of sentence entered in 

the Potter County Court of Common Pleas following her guilty plea to providing 

heroin laced with fentanyl resulting in the victim’s death. Tipping challenges 

the discretionary aspects of her sentence. We affirm. 

In exchange for her plea, the Commonwealth nolle prossed additional 

charges and agreed to a minimum sentence of 60 months or less. The trial 

court sentenced Tipping to 60 to 120 months’ imprisonment pursuant to this 

agreement. On March 26, 2018, Tipping filed a motion for reconsideration of 

sentence, which the court denied. This appeal follows. 

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* Retired Senior Judge assigned to the Superior Court. 
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On appeal, Tipping raises several challenges to the discretionary aspects 

of her sentence. Specifically, Tipping argues that the trial court failed to 

articulate individualized reasons to support the sentence imposed and that the 

sentence is manifestly excessive sentence in light of the plea agreement. See 

Appellant’s Brief, at 4, 19. 

“Generally, a plea of guilty amounts to a waiver of all defects and 

defenses except those concerning the jurisdiction of the court, the legality of 

the sentence, and the validity of the guilty plea.” See Commonwealth v. 

Reichle, 589 A.2d 1140, 1141 (Pa. Super. 1991). “The determination of 

whether discretionary aspects of sentencing may be challenged after a guilty 

plea is entered depends upon the actual terms of the plea bargain, specifically, 

to what degree a sentence agreement has been reached.” See 

Commonwealth v. Dalberto, 648 A.2d 16, 18.

Where the plea agreement provides specific penalties, an appeal from 

a discretionary sentence will not stand; however, where the plea agreement 

provides for no sentencing restrictions, the entry of a guilty plea will not 

preclude a challenge to the discretionary aspects of sentencing. See id., at

20. When the plea agreement falls somewhere between a negotiated plea and 

an open plea, we must determine the effect of the hybrid plea agreement on 

the right to challenge the discretionary aspects of his sentence. See id., at 

21. Therefore, Tipping may only challenge the discretionary aspects of the 
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sentence that were not the subject of her agreement with the Commonwealth.

See id. 

Furthermore, “[c]hallenges to the discretionary aspects of sentencing 

do not entitle an appellant to review as of right.” Commonwealth v. Moury, 

992 A.2d 162, 170 (Pa. Super. 2010) (citation omitted). 

Rather, an appellant challenging the sentencing court’s discretion 

must invoke this Court’s jurisdiction by (1) filing a timely notice of 

appeal; (2) properly preserving the issue at sentencing or in a 

motion to reconsider and modify the sentence; (3) complying with 

Pa.R.A.P. 2119(f), which requires a separate section of the brief 

setting forth “a concise statement of the reasons relied upon for 

allowance of appeal with respect to the discretionary aspects of a 

sentence[;]” and (4) presenting a substantial question that the 

sentence appealed from is not appropriate under the Sentencing 

Code, 42 Pa.C.S.[A.] § 9781(b).

Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en 

banc) (citation omitted).

Tipping has complied with the technical requirements to present her 

challenge to the discretionary aspects of her sentence. We therefore assess 

whether she has raised a substantial question. 

Initially, we note that Tipping received a sentence in compliance with 

her guilty plea. Tipping pled guilty to a single count of drug delivery resulting 

in death in exchange for the Commonwealth dropping her charges of 

possession with intent to deliver heroin and criminal use of a communication 
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facility.1 See Plea Agreement, 2/5/18, at 1-2. Further, the Commonwealth 

made a binding recommendation that the “minimum [] not exceed 60 months’ 

incarceration[.]” Id., at 2. The PSI revealed that 60 months fell at the lower 

end of the standard range sentences. Tipping indicated that she understood 

the agreed-upon sentence, and that she was voluntarily, knowingly, and 

intelligently pleading guilty. See Guilty Plea, 2/5/18 at 1-3. 

In her first challenge, Tipping contends that the terms of the plea 

agreement shifts the sentencing guidelines. Specifically, Tipping contends 

that, because 60 months is the newly agreed upon maximum minimum 

sentence, 60 months essentially becomes an aggravated-range sentence. 

Neither case law nor the record is cited in support of this contention. Moreover, 

even if we assume this argument raises a substantial question, we conclude 

it conflicts with law as set forth in Dalberto. Tipping’s argument does not 

merit any relief.

Next, Tipping claims that the sentencing court failed to consider 

mitigating factors, such as her crime free background, cooperation with 

authorities, or status as a mother, at sentencing. Once again, even if we 

determine this argument raises a substantial question, we discern no abuse 

of discretion in the court’s decision not to impose a minimum sentence of less

than sixty months. 

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1 35 Pa.C.S.A. § 780-113(A)(30) and 18 Pa.C.S.A. § 7512(a), respectively. 
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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, 731 (Pa. Super. 2015) “Where 

the sentencing court had the benefit of a presentence investigation report 

(‘PSI’), we can assume the sentencing court was aware of relevant information 

regarding the defendant's character and weighed those considerations along 

with mitigating statutory factors.” Commonwealth v. Moury, 992 A.2d 162, 

171 (Pa. Super. 2010) (internal citations and quotations omitted).

Additionally, this court may not reweigh factors considered by the sentencing 

court to arrive at a different conclusion. See Commonwealth v. Walls, 592 

Pa. 557, 573, 926 A.2d 957, 966 (2007).

The record does not support Tipping’s argument. Tipping presented 

multiple character witnesses at sentencing, all testifying to her status as a 

single mother and crime free history. Additionally, sentencing court had the 

aid of a PSI. The court expressly considered these potentially mitigating 

factors yet refused to weight them heavily. See N.T., Sentencing, 6/21/18 at 

32. This court may not reweigh factors for the sentencing court. As such, we 

find that the sentencing court did not abuse its discretion.

Judgment of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/23/2019