consider factors in Pennsylvania

2026The Commonwealth argues that, while “[i]t is impermissible for a court to consider factors already included within the sentencing guidelines as the sole reason for increasing or decreasing a sentence to the aggravated or mitigated range,” the trial court may consider a defendant’s prior criminal history where it is “used to supplement other extraneous sentencing information.” Id. (quoting Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006) (emphasis in Shugars; citation omitted)).

2026“It is impermissible for a court to consider factors already included within the sentencing guidelines as the sole reason for increasing or decreasing a sentence to the aggravated or mitigated range[.]” Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006) (emphasis added).

2022“It is impermissible for a court to consider factors already included within the sentencing guidelines as the sole reason for increasing or decreasing a sentence to the aggravated or mitigated range.” Commonwealth v. Simpson, 829 A.2d 334, 339 (Pa. Super. 2003) (citation omitted).

2021Commonwealth v. Simpson, 829 A.2d 334, 339 (Pa. Super. 2003). “[I]t is impermissible for a court to consider factors already included within the sentencing guidelines as the sole reason for increasing or decreasing a sentence to the aggravated or mitigated range.

2020Morgan v. Morgan, 99 A.3d 554, 558-559 (Pa. Super. 2014) (citations and internal quotation marks omitted) (emphasis added).

2017We also consider the following discussion in Morgan v. Morgan, 99 A.3d 554 (Pa. Super. 2014), which sheds light on the arguments raised in this appeal: There is no requirement in the Rule that the trial court must adjust the earning capacity to reflect the "[a]ge, education, training, health, work experience, earnings history and child care responsibilities" of the party to which the earning capacity is - 7 - J -S05007-17 being assigned; the Rule requires only that the trial court consider these factors.

2026Generally, “[i]t is impermissible for a court to consider factors already included within the sentencing guidelines as the sole reason for increasing or decreasing a sentence to the aggravated or mitigated range.” Id. at 937 (cleaned up, emphasis omitted).

2026We have confirmed that courts, however, “can use information included in the guidelines to supplement other peripheral sentencing information,” including “prior convictions in conjunction with past unsuccessful attempts to rehabilitate, or the fact that the new crimes violated parole, or that the defendant’s ongoing criminal record demonstrated a threat to public safety . . ., even though the guidelines take into account those prior convictions.” Id.

2019See Yuhasz, 923 A.2d at 1118 . “[A] trial court judge has wide discretion in sentencing and can, on the appropriate record and for the appropriate reasons, consider any legal factor in imposing a sentence in the aggravated range.” Shugars, 895 A.2d at 1275 . -6- J-S61043-18 It is impermissible for a court to consider factors already included within the sentencing guidelines as the sole reason for increasing or decreasing a sentence to the aggravated or mitigated range.

2016See Yuhasz, 923 A.2d at 1118 . “[A] trial court judge has wide discretion in sentencing and can, on the appropriate record and for the appropriate reasons, consider any legal factor in imposing a sentence in the aggravated range.” Shugars, 895 A.2d at 1275 . -6- J-S23003-16 It is impermissible for a court to consider factors already included within the sentencing guidelines as the sole reason for increasing a sentence into the aggravated range.

2018See Commonwealth v. Brown , 982 A.2d 1017 , 1019 (Pa. Super. 2009) (noting that "where a defendant pleads guilty pursuant to a plea agreement specifying particular penalties, the defendant may not seek a discretionary appeal relating to those agreed-upon penalties" (citation omitted) ). 4 Because Appellant failed to meet the second element of Section 9760(1), we need not consider whether he was "in custody."

2018See Commonwealth v. Brown , 982 A.2d 1017 , 1019 (Pa. Super. 2009) (noting that "where a defendant pleads guilty pursuant to a plea agreement specifying particular penalties, the defendant may not seek a discretionary appeal relating to those agreed-upon penalties" (citation omitted) ). 5 As noted in Byrne , the written plea colloquy contained eight paragraphs relating to the defendant's waiver of his right to credit for time served, and the trial court conducted an oral colloquy on the same issue.

2022See Turner Const. v. Plumbers Local 690, 130 A.3d 47, 63 (Pa.Super. 2015) (“[I]t is improper for this Court to address the non-jurisdictional issue sua sponte as a grounds for reversal.”). - 15 -

2022Analysis A goal change request requires the court to consider the factors listed in 42 Pa.C.S.A. § 6351(f), including: (1) the continuing necessity for and appropriateness of the placement; (2) the extent of compliance with the family service plan; (3) the extent of progress made towards alleviating the circumstances which necessitated the original placement; (4) the appropriateness and feasibility of the current placement goal for the children; (5) a likely date by which the goal for the child might be achieved; (6) the child’s safety; and (7) whether the child has been in placement for at le

2022Id. at 959-60 (citations omitted & paragraph break added). - 14 - J-A23022-22 With respect to aggravated-range sentences and so-called “double counting” factors, this Court has explained: Generally, “[i]t is impermissible for a court to consider factors already included within the sentencing guidelines as the sole reason for increasing or decreasing a sentence to the aggravated or mitigated range.” However, “[t]rial courts are permitted to use factors already included in the guidelines if they are used to supplement other extraneous sentencing information.” When deciding whether a court improp

2022As stated above, it is generally “impermissible for a court to consider factors already included within the sentencing guidelines as the sole reason for increasing . . . a sentence to the aggravated . . . range.” Clemat, 218 A.3d at 960 (emphasis added).

2022Analysis A goal change request requires the court to consider the factors listed in 42 Pa.C.S.A. § 6351(f), including: (1) the continuing necessity for and appropriateness of the placement; (2) the extent of compliance with the family service plan; (3) the extent of progress made towards alleviating the circumstances which necessitated the original placement; (4) the appropriateness and feasibility of the current placement goal for the children; (5) a likely date by which the goal for the child might be achieved; (6) the child’s safety; and (7) whether the child has been in placement for at le

2021See Austin, 66 A.3d at 808 ; Gonzalez, 109 A.3d at 731 .

2020The imposition of these consecutive sentences resulted in what is essentially a guaranteed life sentence for Appellant, as he will remain in prison under the minimum term until age 92. 1 With regard to satisfying the fourth factor for this Court to consider a challenge to the discretionary aspects of Appellant’s sentence, see Majority at 5-7, I note that this Court has recognized “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 o

2018Where the sentencing court had the benefit of a presentence investigation report . . . 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. -9- J-S50005-18 Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super. 2010) (internal citations and quotation marks omitted). “‘It is impermissible for a court to consider factors already included within the sentencing guidelines as the sole reason for increasing or decreasing a sentence to the aggravated or mitigated range.

2017See Pa.R.C.P. 1910-16.2(d)(4). ... "[T]he trial court, as the finder of fact, is entitled to weigh the evidence and assess the credibility of witnesses." Krankowski v. O'Neil, 928 A.2d 284, 287 (Pa. Super. 2007) (citation omitted).

2017Nevertheless, “[e]ven if a sentencing court relies on a factor that should not have been considered, there is no abuse of discretion when the sentencing court has significant other support for its departure from the sentencing guidelines.” Commonwealth v. Sheller, 961 A.2d 187, 192 (Pa.Super. 2008), appeal denied, 602 Pa. 666 , 980 A.2d 607 (2009).

2014See 42 Pa.C.S. § 9721(b) (“[T]he court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.”) (emphasis added); Commonwealth v. Archer, 722 A.2d 203, 210 (Pa. Super. 1998) (en banc) (“[I]f a sentencing court considers improper factors in imposing sentence upon a defendant, the court thereby abuses its discretion[.]”) (quoting Commonwealth v. Krum, 533 A.2d 1

2014See 42 Pa.C.S. § 9721(b) (“[T]he court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.”) (emphasis added); Commonwealth v. Archer, 722 A.2d 203, 210 (Pa. Super. 1998) (en banc) (“[I]f a sentencing court considers improper factors in imposing sentence upon a defendant, the court thereby abuses its discretion[.]”) (quoting Commonwealth v. Krum, 533 A.2d 1

2014See Commonwealth v. Padilla, 80 A.3d 1238, 1259 (Pa. 2013) (holding that the “[a]ppellant had no right to hybrid representation and thus no right to demand that the trial court address his pro se motions on the merits”). - 17 - J-S74010-14 the sentencing guidelines as the sole reason for increasing or decreasing a sentence to the aggravated or mitigated range.”).