961
A.2d 884, 886 (Pa.Super. 2008). An appellant must
first satisfy a four-part test to invoke this Court's
jurisdiction. We examine
(1) whether appellant has filed a timely
notice of appeal, see Pa.R.A.P. 902 and
903; (2) whether the issue was properly
preserved at sentencing or in a motion to
reconsider and modify sentence, see
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).
Commonwealth v. Griffin,
65 A.3d 932, 935
(Pa.Super. 2013) (citation omitted).
Commonwealth v. Schrader,
141 A.3d 558, 563 (Pa.Super. 2016).
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Here, appellant filed a timely notice of appeal. He also filed a timely
post-sentence motion challenging the discretionary aspects of his sentence.
Appellant has included the requisite Rule 2119(f) statement in his brief.
(Appellant's brief at 11-14.) Therefore, we turn to whether appellant has set
forth a substantial question for this court's review.
“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). “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). “Additionally, we cannot look beyond the
statement of questions presented and the prefatory
2119(f) statement to determine whether a
substantial question exists." Commonwealth v.
Provenzano,
50 A.3d 148, 154 (Pa.Super. 2012).
Commonwealth v. Diehl,
140 A.3d 34, 44-45 (Pa.Super. 2016).
In his Rule 2119(f) statement, appellant claims that he received “an
excessive sentence outside of the aggravated range of the sentencing
guidelines." (Appellant's brief at 13.) Appellant also alleges that he
received two consecutive 3-year periods of probation, for a total of 6 years'
probation. (Id.) Neither statement is true. In fact, the record is clear that
appellant received a mitigated range sentence of 18 to 56 months'
incarceration followed by 3 years of probation. (Notes of testimony, 11/2/15
at14-15.)
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Despite the fact that he received a mitigated range sentence, appellant
complains that the sentencing court focused solely on the seriousness of the
offense and his juvenile record, and failed to consider all of the factors
required by 42 Pa.C.S.A. § 9721(b). (Appellant's brief at 12-13.) At
sentencing, appellant asked for a county sentence of 111/z to 23 months,
which would have represented a significant departure from the guidelines.
Nevertheless, an allegation that the trial court focused solely on the
seriousness of the offense sets forth a “substantial question” for review.
Commonwealth v. Trimble,
615 A.2d 48, 54 (Pa.Super. 1992) (citations
omitted). Therefore, we will briefly address the merits of appellant's
argument on appeal.
Our standard of review is as follows:
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. An abuse of discretion is
more than just an error in judgment and,
on appeal, the trial court will not be
found to have abused its discretion
unless the record discloses that the
judgment exercised was manifestly
unreasonable, or the result of partiality,
prejudice, bias, or ill-will.
More specifically, 42 Pa.C.S.A. § 9721(b)
offers the following guidance to the trial
court's sentencing determination:
[T]he sentence imposed
should call for confinement
that is consistent with the
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J. 573013/16
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.
42 Pa.C.S.A. § 9721(b).
[Commonwealth v.] Bricker, 41 A.3d [872] at 875
[(Pa.Super. 2012)] (quotation omitted). Thus, under
42 Pa.C.S.A. § 9721(b), a “sentencing court must
formulate a sentence individualized to that particular
case and that particular defendant."
[Commonwealth v.] Boyer, 856 A.2d [149] at 153
[(Pa.Super. 2004)].
Commonwealth v. Clarke,
70 A.3d 1281, 1287 (Pa.Super. 2013), appeal
denied,
85 A.3d 481 (Pa. 2014).
Our review of the record reveals that the trial court considered all
relevant factors and did not focus solely on the serious nature of the crime.
The trial court was well aware of various alleged mitigating factors in
appellant's favor, including the fact that he took responsibility for his
actions; that he cooperated with the police investigation; that he was not
the individual with the gun; that he suffered from depression and ADHD;
that he grew up not knowing his father; that his grandparents who raised
him passed away; and that he completed high school with a 4.0 GPA.
(Notes of testimony, 11/2/15 at 3-5, 7-8.) In addition, the trial court had
the benefit of a pre-sentence investigation (“PSI”) report. (Id. at 2.)
Appellant had no additions or corrections to make to the PSI report. (Id.)
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“[W]here the sentencing judge had the benefit of a [PSI] report, it will be
presumed that he or she was aware of the relevant information regarding
the defendant's character and weighed those considerations along with
mitigating statutory factors.”
Clarke, 70 A.3d at 1287, quoting
Bricker, 41
A.3d at 876 n.9 (quotation and quotation marks omitted); Commonwealth
v. Devers,
546 A.2d 12, 18 (Pa. 1988) (“It would be foolish, indeed, to take
the position that if a court is in possession of the facts, it will fail to apply
them to the case at hand”).
Judge Rangos ultimately rejected appellant's request for a county
sentence but did agree to a mitigated range sentence, stating:
I do think it is important to give young people a
chance to turn their lives around. As I said at the
earlier hearing, their behavior on this instance was
very concerning. And I do not have a crystal ball. I
do, however, have the benefit of a [PSI] Report.
And with regard to [appellant], as a juvenile, two
prior gun cases.[3] *** So I do not see any reason
to go below the mitigated range for either of them. I
do want to give them an opportunity, though, to be
successful, and I will allow them to demonstrate that
to me by giving them the bottom of the mitigated
range with a longer tail so that they can obtain their
GEDs, do all of the things that they've indicated the
desire to do and demonstrate that they do want to
become productive members of society.
3 To the extent that appellant argues his juvenile history was already
accounted for in his prior record score and should not have been considered,
this particular issue was not raised either in his post-sentence motion or in
his Rule 1925(b) statement; therefore, it is waived on appeal.
Pa.R.A.P. 302(a); Pa.R.A.P. 1925(b)(4)(vii); Commonwealth v. Reeves,
778 A.2d 691, 692 (Pa.Super. 2001) (“issues challenging the discretionary
aspects of sentencing must be raised in a post-sentence motion or by raising
the claim during the sentencing proceedings” (citation omitted)).
_7_
J. 573013/16
Notes of testimony, 11/2/15 at 13-14.
There is no merit to appellant's claim that the trial court abused its
discretion in sentencing. As
demonstrated supra, the trial court
thoughtfully considered all relevant factors and did not focus solely on the
seriousness of the charges. To the extent appellant argues that the trial
court gave insufficient weight to certain mitigating factors, including his
mental health issues and family history, he fails to raise a substantial
question of inappropriateness. Commonwealth v. Lopez,
627 A.2d 1229
(Pa.Super. 1993) (allegation that sentencing court failed to attach sufficient
weight to mitigating factors of record does not present a substantial
question); Commonwealth v. ]0nes,
613 A.2d 587 (Pa.Super. 1992),
appeal denied,
629 A.2d 1377 (Pa. 1993) (arguments that sentencing
court improperly weighed various legitimate factors does not raise a
substantial question); Commonwealth v. Williams,
562 A.2d 1385, 1388
(Pa.Super. 1989) (an allegation that the trial court did not adequately
consider certain mitigating factors is, in effect, a request that this court
substitute its judgment for that of the trial court in fashioning appellant's
sentence).
Judgment of sentence affirmed.
J. 573013/16
Judgment Entered.
Joseph D. Seletyn, Es .
Prothonotary
Date: 11/8/2016