NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P Appellant No EDA 2013

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA v. EARL MONROE EDEN Appellant No EDA 2013 Appeal from the Judgment of Sentence July 22, 2013 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR , CP-15-CR , CP-15-CR , CP-15-CR , CP-15-CR BEFORE: BENDER, P.J.E., PANELLA and LAZARUS, JJ. MEMORANDUM BY PANELLA, J.: FILED MARCH 14, 2014 Appellant, Earl Monroe Eden, appeals from the judgment of sentence entered on July 22, 2013, in the Court of Common Pleas of Chester County. After careful review, we affirm. The trial court ably summarized the relevant facts and procedural history of this case as follows: On August 1, 2011, [Eden] entered open guilty pleas to two counts of driving under the influence of alcohol (highest rate of alcohol), and one count of theft of services. 75 Pa.C.S.A. 3802(c); 18 Pa.C.S.A. 3926(a)(1). Sentencing was deferred. On May 22, 2012, [Eden] entered open guilty pleas to one count of harassment and one count of driving under the influence of alcohol, (highest rate of alcohol). 18 Pa.C.S.A. 2709(a)(6); 75 Pa.C.S.A. 3802(c). [Eden s] blood alcohol content (BAC) at the time of his third arrest was greater than.30%. He was sentenced on March 6, 2013 to serve an aggregate term of imprisonment of forty months to eight years. On March 25, 2013, [Eden] filed a motion to modify and reduce his sentence.

2 Trial Court Opinion, 10/8/13, at 1-2. The trial court denied Eden s postsentence motion and this timely appeal followed. Eden raises the following issue for our review: Did the sentencing court abuse its discretion when it imposed a lengthy aggregate sentence, when the court only considered the seriousness of the offenses and did not adequately consider how the defendant s age, health problems, and history of employment relate to such a lengthy sentence? Appellant s Brief, at 6. A challenge to the 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. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004), appeal denied, 580 Pa. 695, 860 A.2d 122 (2004) (citation omitted). When challenging the discretionary aspects of the sentence imposed, an appellant must present a substantial question as to the inappropriateness of the sentence. See Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005). Two requirements must be met before the Superior Court will review this challenge on its merits. McAfee, 849 A.2d at 274. First, an appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. Id. Second, the appellant must show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. Id. That is, the sentence violates either a specific provision of the - 2 -

3 sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process. Tirado, 870 A.2d at 365. We examine an appellant s Rule 2119(f) statement to determine whether a substantial question exists. Our inquiry must focus on the reasons for which the appeal is sought, in contrast to the facts underlying the appeal, which are necessary only to decide the appeal on the merits. Id. (quoting Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en banc), appeal denied, 563 Pa. 672, 759 A.2d 920 (2000)) (emphasis in original). In the present case, Eden s appellate brief contains the requisite Rule 2119(f) concise statement, and, as such, is in technical compliance with the requirements to challenge the discretionary aspects of a sentence. In his Rule 2119(f) statement, Eden asserts that the trial court abused its discretion when it sentenced him based solely on the seriousness of the offenses, failed to consider all relevant factors set forth in 9721(b), specifically with respect to the protection of the public, the gravity of the offense(s), and his rehabilitative needs, and failed to adequately state the reasons for why each sentence must be imposed consecutive to one another thereby resulting in a lengthy aggregate sentence. Appellant s Brief, at 15. The imposition of consecutive, rather than concurrent, sentences may raise a substantial question in only the most extreme circumstances, such as where the aggregate sentence is unduly harsh, considering the nature of the crimes and the length of imprisonment. See Commonwealth v. Moury, - 3 -

4 992 A.2d 162, (Pa. Super. 2010). We do not find such extreme circumstances here. At the time of the sentencing hearing, counsel for Eden presented detailed information regarding Eden s significant health issues and his involvement in an architectural business. Eden presented his plea of allocution. The trial court, however, in imposing sentence, deemed it appropriate, based upon Eden s prior record and history of driving under the influence, to impose a lengthy sentence. The trial court provided a thorough recitation of the factors it considered when it sentenced Eden to consecutive sentences. Specifically, the court stated that: Sir, over the years, you managed to rack up a pretty good number of DUI convictions. You re either a very unlucky driver or you have been doing a lot of DUI driving. And then you have - - your problems go well beyond that, given the totality of all of these cases. And I m taking into consideration your age, your work history, what your future plans are, your health issues, because otherwise, frankly, I would give you even a longer period of time in jail than I m going to give you now. N.T., Sentencing, 3/16/13, at 17. Contrary to Eden s position otherwise, the trial court ably considered his rehabilitative needs in fashioning its sentence. Additionally, the sentencing court thoroughly and thoughtfully explained that it was aware of Eden s personal history, and was concerned with Eden s history of DUI convictions. The court obviously was concerned about the need to protect society from Eden s violations. As the court aptly stated in its Opinion Pursuant To Pa.R.A.P. 1925(a): - 4 -

5 [T]he court was well aware of Appellant s age, health issues and his employment prospects, which were placed on the record at his sentencing hearing. N.T. 3/6/13, pp 6-7, At this hearing, the Court was also made aware of Appellant s four prior convictions for driving under the influence, and his prior federal conviction for wire fraud. See: N.T. 3/6/13, p. 4. Trial Court Opinion, at 4. As such, Eden s assertion that the trial court erred when it sentenced him consecutively resulting in a lengthy aggregate sentence fails to raise a substantial question for our review. Judgment of sentence affirmed. Jurisdiction relinquished. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 3/14/

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