J-S54024-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KENNETH LEE RYAN

Appellant No. 146 WDA 2017

Appeal from the Judgment of Sentence January 9, 2017

In the Court of Common Pleas of Erie County

Criminal Division at No(s): CP-25-CR-0001965-2016

BEFORE: OTT, J., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY MOULTON, J.: FILED OCTOBER 24, 2017

Kenneth Lee Ryan appeals from the January 9, 2017 judgment of 

sentence entered in the Erie County Court of Common Pleas following his 

jury trial convictions for receiving stolen property and defiant trespass –

notice given by posting.1 We affirm.

On November 15, 2016, a jury convicted Ryan of the aforementioned 

charges. On January 9, 2017, the trial court sentenced Ryan to 2 to 7 years’ 

incarceration for the receiving stolen property conviction and a consecutive 

45 to 90 days’ incarceration for the defiant trespass conviction. Ryan was 

also ordered to pay restitution of $350.00 to the victims and $9,007.84 to 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. §§ 3925(a) and 3503(b)(1)(ii), respectively.
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State Farm Insurance. On January 10, 2017, Ryan filed a motion for 

modified and reduced sentence, which the trial court denied on January 11, 

2017. On January 17, 2017, Ryan timely filed a notice of appeal.

Ryan’s sole issue on appeal is “[w]hether [his] sentence is manifestly 

excessive, clearly unreasonable, and inconsistent with the objectives of the 

Sentencing Code[.]” Ryan’s Br. at 3.

“Challenges to the discretionary aspects of sentencing do not entitle an 

appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058, 

1064 (Pa.Super. 2011). Before we address such a challenge, we must first 

determine:

(1) whether the appeal is timely; (2) whether [the 

a]ppellant preserved his issue; (3) whether [the 

appellant’s brief includes a concise statement of the 

reasons relied upon for allowance of appeal with respect to 

the discretionary aspects of sentence; and (4) whether the 

concise statement raises a substantial question that the 

sentence is appropriate under the Sentencing Code.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting 

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)).

Ryan filed a timely notice of appeal, preserved his discretionary 

aspects of sentencing claim in his post-sentence motion, and included a 

concise statement of the reasons relied upon for allowance of appeal 

pursuant to Pennsylvania Rule of Appellate Procedure 2119(f). We must 

now determine whether Ryan’s issue raises a substantial question for our 

review.
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We evaluate whether a particular sentencing issue raises a substantial 

question on a case-by-case basis. Commonwealth v. Dunphy, 20 A.3d 

1215, 1220 (Pa.Super. 2011). A substantial question exists where a 

defendant raises a “plausible argument that the sentence violates a 

provision of the sentencing code or is contrary to the fundamental norms of 

the sentencing process.” Commonwealth v. Dodge, 77 A.3d 1263, 1268 

(Pa.Super. 2013) (quoting Commonwealth v. Naranjo, 55 A.3d 66, 72 

(Pa. Super. 2012)). A claim that the sentence imposed was excessive and 

unreasonable, when that sentence is above the aggravated range under the 

Sentencing Guidelines, presents a substantial question for our review. See 

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

that appellant’s “contention that the [trial] court exceeded the recommended 

range in the Sentencing Guidelines without an adequate basis raises a 

substantial question for this Court to review”).

We conclude that Ryan has raised a substantial question. Based on his 

prior record score, Ryan’s sentence on the receiving stolen property 

conviction is above the aggravated range. Accordingly, we review the merits 

of his claim.

“Sentencing is a matter vested within the discretion of the trial court 

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

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010).
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Ryan argues that “the trial court abused its discretion in sentencing 

[him] to such a lengthy period of incarceration.” Ryan’s Br. at 6. According 

to Ryan, the trial court failed to consider mitigating factors in his case and 

“inappropriately factored in crimes for which [he] had been acquitted” based 

on its statements about Ryan “stealing people’s stuff” and “stealing an RV.” 

Id. at 7. We disagree.

A review of the record shows that the trial court considered mitigating 

factors in imposing sentence:

All right. I’m going to do the following.

First of all, I’ve considered the letters from [Ryan]’s 

family. And I simply offer in observation, [Ryan] has 

children who are going to be damaged by this. The letter 

recites he’s a great father, a hard worker.

[Ryan] writes to me and says, “I’m going to do parole 

time. I have children.” My view of that is to the extent 

that these people’s lives are turned upside down, the place 

to look for who did that to him is [Ryan] to buy a mirror 

and look there. I’m not going to be moved one iota 

because this may have a terrible effect on your family. 

You did this to them. To the extent there is horror that’s 

going to be visited on them and pain and suffering, the 

only party responsible is you. So that’s my view of those 

requests for leniency.

. . .

So let’s turn to the next thing. My view of [Ryan] is he 

has a [p]rior [r]ecord [s]core of 5. He’s what, forty some 

years of age by now, and he is irredeemably committed to 

criminal enterprises. He’s got a rap sheet that runs one, 

two, three and a half pages. Some of them are thefts, 

other ones show just an unwillingness to conform his 

conduct to the requirements of the law. We tell him he 

can’t drive, the hell with us, he drives anyway. He is going 

to do just what he wants to do. There is nothing in this 
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case that shows the slightest bit of remorse, simply a 

predatory behavior. His view of the world is you toil and 

sweat and earn bread, and I’ll eat it. It’s inconsistent with 

him walking among us.

The Guidelines here for receiving stolen property. In 

the Court’s observation of [Ryan], the Guidelines are 12 to 

18 months in the standard range. In the aggravated 

range, 21 months.

Here I’ve considered the Pennsylvania Sentencing Code 

and its various factors. I’ve got the benefit of a pre. I’ve 

considered the letters. I’ve presided over trial. I saw a 

defendant who -- and see a defendant here who has 

absolutely no remorse, and if circumstances permitted, 

would do it again. I don’t believe rehabilitation is possible. 

The goal of sentencing is twofold here, to punish and to 

incapacitate.

In this case, noting the standard range of the 

Guidelines, I’m going to go beyond them. Because in my 

view I’ve considered the enormity of effects of the 

Guidelines. The punishment isn’t enough for the wanton 

behavior shown by [Ryan].

N.T., 1/9/17, at 15-17. The trial court’s statements show that it considered 

mitigating factors but afforded them no weight. In addition, while Ryan is 

correct that the trial court characterized him as “stealing people’s stuff” and 

as having stolen an RV, the trial court understood that Ryan had been 

convicted of receiving stolen property, not theft by unlawful taking:

The jury’s verdict here acquitting him of certain charges 

simply reflects, in the Court’s view, not any belief in 

[Ryan]’s innocence, but just the requirement that the 

Commonwealth is required to prove that he was the 

person that actually took this RV off of the lot where it was 

stored. The real[i]ty is it was found in his possession a 

short time later hidden in a rural farm property. There is

nothing in this verdict that calls into question to the 

slightest degree any of the -- any question about [Ryan]’s 

guilt.
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I’m not going to sentence him for what he did do,[2] but 

I note that what he’s convicted of, having a stolen RV, is 

part and parcel of the receiving stolen property travel 

trailer he was convicted of in 2012 and closely akin to the 

snowmobile issue in 2000 -- again in 2012. He has a 

history of theft convictions, a trailer, criminal mischief and 

then a whole bunch of driving under -- under suspensions, 

et cetera. DUIs.

Id. at 9-10. The trial court’s statements show that the trial court did not 

sentence Ryan for stealing the trailer, but instead sentenced Ryan in the 

aggravated range based on Ryan’s conduct, the information contained in his 

pre-sentence investigation report, and the other information presented at 

the sentencing hearing.3

Judgment of sentence affirmed.

____________________________________________

2 Based on the context, we presume that the trial court misspoke and 

meant to say that it would “not sentence Ryan for what he did [not] do.”

3

In his brief, Ryan raises an undeveloped, three-sentence challenge to 

the restitution imposed by the trial court. He did not raise this issue in his 

Pennsylvania Rule of Appellate Procedure 1925(b) statement or his 

statement of questions presented in his brief. Ryan appears to argue that 

the trial court could not impose restitution because neither of the charges 

“for which [he] was convicted . . . bear[] a claim for damages” and, thus, 

“the restitution claimed was not a direct result of the crime.” Ryan’s Br. at 7 

(quoting 18 Pa.C.S. § 1106(a)).

Although this issue is non-waivable because it goes to the legality of 

sentence, see Commonwealth v. Kinnan, 71 A.3d 983, 986 (Pa.Super. 

2013), we conclude that Ryan’s limited argument is meritless. There is no 

requirement that the Commonwealth affix “damages” in the criminal 

information or even in its case-in-chief. See 18 Pa.C.S. § 1106(c)(4)(i) (“It 

shall be the responsibility of the district attorneys of the respective counties 

to make a recommendation to the court at or prior to the time of sentencing 

as to the amount of restitution to be ordered.”).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/24/2017