J-S28043-15




NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

VERNON KEITH MILLER

                            Appellant               No. 1654 MDA 2014


          Appeal from the Judgment of Sentence December 19, 2012
              In the Court of Common Pleas of Lancaster County
            Criminal Division at No(s): CP-36-CR-0002296-2011 ,
            CP-36-CR-0002297-2011 , CP-36-CR-0002298-2011,
             CP-36-CR-0002302-2011, CP-36-CR-0002303-2011,
             CP-36-CR-0002304-2011, CP-36-CR-0002359-2011,
                           CP-36-CR-0002364-2011


BEFORE: BOWES, J., ALLEN, J., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.:                            FILED JULY 28, 2015

        Vernon Keith Miller appeals nunc pro tunc from the judgment of

sentence, entered in the Court of Common Pleas of Lancaster County,

following his jury trial and conviction, on eight separate docket numbers, for

three counts of criminal attempt to commit burglary 1, ten counts of

burglary2, and one count of receiving stolen property.3 After our review, we

____________________________________________


1
    18 Pa.C.S. § 901(a).
2
    18 Pa.C.S. § 3502(a).
3
    18 Pa.C.S. § 3925(a).
J-S28043-15



affirm the judgment of sentence and rely, in part, on the opinion authored

by the Honorable Howard F. Knisely.

      The trial court’s opinion sets forth the facts and procedural history of

this case as follows:

      On September 17, 2012, [Miller] went to trial on docket numbers
      2296-2011, 2297-2011, 2298-2011, 2302-2011, 2303-2011,
      2304-2011, 2359-2011, and 2364-2011. The trial was held
      September 17, 2012 through September 21, 2012, at which time
      the jury convicted [Miller] of [three counts of Criminal Attempt
      to Commit Burglary, ten counts of Burglary, and one count of
      Receiving Stolen Property]. Upon [Miller’s] convictions, a pre-
      sentence investigation was ordered and [Miller] proceeded to
      sentencing on December 19, 2012. After reviewing the pre-
      sentence investigation report, victim impact statements, a letter
      from [Miller], and hearing the comments of both attorneys, the
      Court sentenced [Miller] as follows: [On] the first count of
      Attempted Burglary, [he was sentenced] to 2½ to 5 years in a
      State Correctional Institution. On the second and third counts of
      Attempt Burglary, the Court sentenced [Miller] to 2 to 4 years in
      a State correctional Institution. On Count 4 Burglary, the Court
      sentenced [Miller] to 4 to 10 years in a State Correctional
      Institution. On Count 5 of the Burglary, the Court sentenced
      [Miller] to 2 to 4 years in a State Correctional Institution. These
      sentences were to run consecutively, for a total of 12 ½ to 27
      years’ incarceration.

             Additionally, the Court set each jail sentence consecutive
      to the jail sentence imposed on the Information prior thereto for
      an aggregate sentence of incarceration in a State Correctional
      Institution of not less than 29 ½ years to 61 years’ incarceration.
      [Miller] was sentenced within the standard range of the guideline
      sentence. On December 28, 2012, [Miller] filed a Motion to
      Modify Sentence, requesting that the sentence be modified so as
      to permit [Miller] to serve the sentences at each count WITHIN a
      docket number concurrently, as opposed to consecutively to
      each other, which would decrease his minimum sentence to 17
      years. On January 3, 2013, the Commonwealth filed an Answer
      to [Miller’s] Motion to Modify Sentence. By Order of January 7,
      2012, the Court denied [Miller’s] Motion to Modify Sentence.


                                     -2-
J-S28043-15



Trial Court Opinion, 11/12/14, at 2-3.

      Miller filed a petition under the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546, alleging ineffective assistance of trial counsel; PCRA

counsel was appointed to represent Miller who filed an amended petition on

his behalf.   In his petition, Miller alleged, among other things, that trial

counsel failed to file a direct appeal at his request.   After a hearing, the

PCRA Court entered an order reinstating Miller’s appellate rights and

granting him leave to file an appeal nunc pro tunc.

      The instant nunc pro tunc appeal followed. Miller raises the following

questions for our review:

      1. Whether the imposition of a sentence of not less than 29½
      nor more than 61 years was so manifestly excessive as to
      constitute an abuse of discretion?

      2. Whether the imposition of various consecutive sentences
      resulting in an aggregate period of incarceration of not less than
      29½ nor more than 61 years constitutes cruel and unusual
      punishment under the 8th Amendment to the United States
      Constitution?

      Miller first argues that his sentence is manifestly excessive given the

nature and circumstances of the offenses and his history and character.

Miller specifically asserts that the imposition of consecutive sentences for

these various property offenses, where there was no physical injury to any

of the victims, was unduly harsh and unreasonable.       Miller also contends

that his sentence violated section 9721(b) of the Sentencing Code, which

states that any sentence imposed should be “consistent with the protection




                                    -3-
J-S28043-15



of the public, the gravity of the offense, and the rehabilitative needs of the

Defendant.” See Appellant’s Brief, at 13.

      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. Commonwealth v. Johnson, 666 A.2d 691, 693 (Pa.

Super. 1995) (quoting Commonwealth v. Dotter, 589 A.2d 726 (Pa.

Super. 1991)).

      A four-pronged analysis is required before the Pennsylvania
      Superior Court will review the merits of a challenge to the
      discretionary aspects of a sentence. Those prongs are: (1)
      whether the appellant has filed a timely notice of appeal,
      Pa.R.A.P. 902 and 903; (2) whether the issue was properly
      preserved at sentencing or in a motion to consider and modify
      sentence, 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. § 9781(b).

Commonwealth v. Hyland, 875 A.2d 1175, 1183 (Pa. Super. 2005). An

appellant raises a substantial question when he shows that the sentencing

court’s actions were inconsistent with the Sentencing Code or contrary to the

fundamental norms underlying the sentencing process.       Pa.R.A.P. 2119(f);

Commonwealth v. Ferguson, 893 A.2d 735 (Pa. Super. 2006).

      It is well established that a sentencing court’s failure to consider

mitigating factors raises a substantial question.   See Commonwealth v.

Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003). However, a sentencing

court generally has discretion to impose multiple sentences concurrently or

consecutively, and a challenge to the exercise of that discretion does not

                                    -4-
J-S28043-15


ordinarily raise a substantial question. Commonwealth v. Pass, 314 A.2d

442, 446-47 (Pa. Super. 2006).

      We are mindful, however, that “the key to resolving the preliminary

substantial   question   inquiry   is   whether   the   decision   to   sentence

consecutively raises the aggregate sentence to, what appears upon its face

to be, an excessive level in light of the criminal conduct at issue in the case.”

Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa. Super. 2010). An

appellant making an excessiveness claim raises a substantial question when

he “sufficiently articulates the manner in which the sentence violates either a

specific provision of the sentencing scheme set forth in the Sentencing Code

or a particular fundamental norm underlying the sentencing process.”

Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002).

      Applying Mouzon, this Court has held that an excessive sentence

claim, in conjunction with an assertion that the court failed to consider

mitigating factors, raises a substantial question. Commonwealth v. Perry,

883 A.2d 599, 602 (Pa. Super. 2005). An appellant may raise a substantial

question where he receives consecutive sentences within guideline ranges, if

the case involves circumstances where the application of the guidelines

would be clearly unreasonable, resulting in an excessive sentence; however,

a bald claim of excessiveness due to the consecutive nature of a sentence

will not raise a substantial question for review. Commonwealth v. Dodge,

77 A.3d 1263, 1270 (Pa. Super. 2013), citing Commonwealth v. Moury,


                                        -5-
J-S28043-15


992 A.2d 162, 171-72 (Pa. Super. 2010). This court in Dodge stated that in

determining whether a substantial question exists, this Court must look to

whether the appellant has forwarded a plausible argument that the

sentence, when it is within the guideline ranges, is clearly unreasonable.

Dodge, 77 A.3d at 1270. Because we interpret Miller’s argument as raising

a substantial question under both Dodge and Mouzon, we grant Miller’s

petition for allowance of appeal and consider the merits of his claim.

       We have reviewed the transcripts, parties’ briefs, and relevant law and

we find that Judge Knisely’s decision thoroughly and correctly disposes of

Miller’s first issue on appeal.       See Trial Court Opinion, 11/12/14, at 3-6.

Specifically, the record supports the conclusion that the court meaningfully

considered the sentencing factors found in section 9721(b)4 and acted within

its discretion in imposing an aggregate sentence of 29½ to 61 years’

imprisonment. Because Miller was only thirty-one years old at the time of

the commission of the offenses, he would spend at most the majority, not

entirety, of his adult life in prison and would be eligible for parole in his early

60’s. Trial Court Opinion, 11/12/14 at 6. Moreover, Judge Knisely detailed
____________________________________________


4
    42 Pa.C.S. §9721(b) provides that:

       [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.



                                           -6-
J-S28043-15


the reasons for his sentence at the sentencing hearing, which included:

Miller’s complete lack of remorse; Miller’s extensive criminal record dating

back to his youth; Miller’s age at the time he committed the instant

offenses; victim impact statements; Miller’s character statement and letter

to the court; and, most significantly, the number of victims and jurisdictions

encompassing Miller’s crime spree. See N.T. Sentencing Hearing, 12/19/12,

at 12-16. See Dodge, supra (where defendant claimed his sentence of 40

years and seven months to 81 years and two months’ incarceration, for non-

violent property crimes, was “virtual life sentence,” court’s sentence,

consisting of multiple consecutive low-end standard range sentences was not

unreasonable; court had benefit of PSI, considered defendant’s crime spree

resulting in numerous victims, determined sentence would not result in

lifetime incarceration, and court took into account defendant’s lack of

remorse and lengthy criminal background).

      We next turn to Miller’s second contention that the sentence imposed

by the court is unconstitutional under the Eighth Amendment to the United

States Constitution. Miller specifically alleges that his sentence constitutes

“cruel and unusual punishment” because “the greatest minimum sentence

which could have been imposed for the most serious offense was ten years

[and] it is obvious that the [l]ower [c]ourt’s sentence was so excessive that

it must be found unconstitutional.” Appellant’s Brief, at 25.




                                     -7-
J-S28043-15


     The test for determining whether a sentence constitutes cruel and

unusual punishment is set forth as follows:

     In Commonwealth v. Spells, 612 A.2d 458, 462 (Pa. Super.
     1992) (en banc), the Superior Court applied the three-prong test
     for Eighth Amendment proportionality review set forth by the
     United States Supreme Court in Solem v. Helm, 463 U.S. 277,
     292 (1983). The Spells court observed that the three-prong
     Solem proportionality test examines: “(I) the gravity of the
     offense and the harshness of the penalty; (ii) the sentences
     imposed on other criminals in the same jurisdiction; and (iii) the
     sentences imposed for commission of the same crime in other
     jurisdictions.” Spells, 612 A.2d at 462 (quoting Solem, 463
     U.S. at 292, 103 S.Ct. 3001).       The Spells court correctly
     observed that a reviewing court is not obligated to reach the
     second and third prongs of the test unless “a threshold
     comparison of the crime committed and the sentence imposed
     leads to an inference of gross disproportionality.” Spells, supra
     at 463 (quoting the controlling opinion of Justice Kennedy in
     Harmelin, supra at 1005, 111 S.Ct 2680).

Commonwealth v. Baker, 78 A.3d 1044, 1047-48 (Pa. 2013) (emphasis

added), quoting Harmelin v. Michigan, 501 U.S. 957, 1005 (1991).

      In this instance, the first prong of Solem is not met. Miller argues

the “sentence effectively amounts to a sentence of life imprisonment for an

individual convicted of various property crimes.” Appellant’s Brief, at 15-16.

Miller asserts that because his crimes are mere property crimes, the lengthy

sentence of confinement he received is disproportionate to the underlying

criminal conduct. Id. However, this is not a case where all of the charges

arose from a single criminal episode. Here, Miller has was convicted of ten

separate and distinct first-degree felony burglaries, committed upon ten




                                    -8-
J-S28043-15



separate private residences, and three other criminal attempts to commit

burglary. The maximum sentence for a first-degree felony is twenty years,5

yet Miller only received an aggregate sentence of 29½ to 61 years’

imprisonment for all thirteen convictions.

        Miller’s claim that his sentence “effectively amounts to a life sentence

of imprisonment” id. at 15, 24, is disingenuous. Miller was only thirty-one

years old at the time of sentencing, and the sentencing judge noted in his

opinion that the sentences do not amount to life because Miller would be

eligible for parole in his early 60’s. See Trial Court Opinion, 11/12/14, at 6.

Furthermore, the trial court noted each of the sentences imposed on the 14

counts were within the standard range of the Sentencing Guidelines.         Id.

Additionally, Miller has failed to provide any factual basis in his brief

demonstrating gross disproportionality in his sentence. He concedes within

his own brief that this Court will “not likely find that a sentence is either an

abuse of discretion or so grossly disproportionate as to be unconstitutional.”

See Appellant’s Brief at 24. While he argues that the sheer excessiveness of

his sentence is enough to constitute “cruel and unusual punishment”, he

acknowledges that the sentencing court has the discretion to impose

consecutive sentences, but believes it is the “peculiar circumstances of his




____________________________________________


5
    See 18 Pa.C.S. §1103(1).



                                           -9-
J-S28043-15



case that should persuade the Court to find the sentence unconstitutional.”

Id.

      Because Miller fails to raise an inference that there was a gross

disproportionality between the gravity of the offenses committed and the

harshness of his sentence, he has not met the first prong of the Solem test.

Accordingly, we need not reach the second and third prongs of the test.

Spells, supra.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/28/2015




                                   - 10 -
                                                                                               Circulated 07/17/2015 11:02 AM

.\
     . ...




             IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
                                      CRlMINAL DIVISION


             COMMONWEALTH OF PENNSYLVANIA

                      vs.                                                  Nos. 2296, 2297, 2298, 2302,
                                                                           2303, 2304, 2359 & 2364 of 2011
             VERNON KEITH MILLER


                                                        OPINION
             BY: KNISELY,J.                                                                 November 12, 2014

                      Defendant Vernon Keith Miller has appealed to the Superior Court of Pennsylvania from

             the judgment of sentence imposed on December 19, 2012 and finalized by Order of January 27,

             2013, denying Defendant's post-sentence motion. On appeal, Defendant alleges that the

             sentence imposed was manifestly excessive as to constitute an abuse of discretion. 'Ibis Opinion

             is written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure.

                                                    BACKGROUND

                      On September 17, 2012, Defendant went to trial on docket numbers 2296-2011, 2297-

             2011, 2298-2011, 2302-2011, 2303-2011, 2304-2011, 2359-2011, and 2364-2011. The trial was·

             held September 17, 2012 through September 21, 2012, at which time the jury convicted the

             defendant of the following counts at the following dockets:

                  On docket 2296-2011, Defendant was convicted of three counts of Criminal Attempt to
             Commit Burglary! and two counts ofBurglary.2                                       ·
                  On docket 2297-2011, Defendant was convicted of two counts of Burglary. 3
                  On docket 2298-2011, Defendant was convicted of one count ofBurglary.4
                  On docket 2302~201 l, Defendant was convicted of one count of Burglary.5 ,-
                                                                                                   l>        ~
                                                                                                    z        =      (")
                                                                                                   (")      -
                                                                                                            :z:
                                                                                                                    r
                                                                                                                    fTl
             1
                                                                                                   >
                                                                                                   (I)      ~       ::0
               18 Pa. C.S.   90l(a).                                                               ......   <       ;.:,;:
             218  Pa. C.S.
             3 1& Pa. C.S.
                             3502(a).
                             3502{a).
                                                                                                   g
                                                                                                   ("')
                                                                                                            N       .,,
                                                                                                                    C)


             4                                                                                                      ("')
               18 Pa. C.S.   3502(a).                                                              0        :ri,,
                                                                                                                    0
             s 18 Pa. C.S.   3502(a).                                                              c:
                                                                                                   ;z:
                                                                                                            :i::
                                                                                                                    c
                                                                                                   -f       VJ      ::0
                                                                                                                    -<
                                                                                                   :<       0       o»
                                                                                                            .&"
                                                                                                  ~
                                                                                          Circulated 07/17/2015 11:02 AM
...




                 On docket 2303-2011, Defendant was convicted of one count of Receiving Stolen
          Property.6
                 On docket 2304-2011, Defendant was convicted of two counts ofBurglary.7
                 On docket 2359-2011, Defendant was convicted of one count ofBurglary.8
                 On docket 2364-2011, Defendant was convicted of one count ofBurglary.9

                  Upon Defendant's convictions, a pre-sentence investigation was ordered and Defendant

      proceeded to sentencing on December 19, 2012. After reviewing the pre-sentence investigation

          report, victim impact statements, a letter from Defendant, and hearing the comments of both

          attorneys, the Court sentenced Defendant as follows:

                Docket 2296-2011: On the first count of Attempted Burglary, the Court sentenced
       Defendant to 2y; to 5 years in a State Correctional Institution. On the second and third counts of
       Attempted Burglary, the Court sentenced Defendant to 2 to 4 years in a State Correctional
       Institution. On Count 4 Burglary, the Court sentenced Defendant to 4 to 10 years in a State
       Correctional Institution. On Count 5 Burglary, the Court sentenced Defendant to 2 to 4 years in
       a State Correctional Institution. These sentences were to run consecutively, for a total of l 2Yz to
       27 years' incarceration.
                Docket 2297-201 I: On each of the two counts of Burglary, the Court sentenced
      Defendant to 2 to 4 years in a State Correctional Institution. These sentences were to run
       consecutively, for a total of 4 to 8 years' incarceration.
                Docket 2298-2011: On the single count of Burglary, the Court sentenced Defendant to 2
      to 4 years in a State Correctional Institution.
                Docket 2302-2011: On the single count of Burglary, the Court sentenced Defendant to 2
      to 4 years in a State Correctional Institution.
                Docket 2303-2011: On the single count of Receiving Stolen Property, the Court
      sentenced Defendant to 1 to 2 years in a State Correctional Institution.
               Docket 2304-201 l: On each of the two counts of Burglary, the Court sentenced
      Defendant to 2 to 4 years in a State Correctional Institution. These sentences were to run
      consecutively, for a total of 4 to 8 years' incarceration.
               Docket2359-2011: On the single count of Burglary, the Court sentenced Defendant to 2
      to 4 years in a State Correctional Institution.
               Docket 2364-2011: On the single countof Burglary, the Court sentenced Defendant to 2
      to 4 years in a State Correctional Institution.




      '18 P.S. 3925(a).
      718    Pa. C.S. 3502(a).
      8
          18 Pa. C.S. 3502(a).
      9
          18 Pa. C.S. 3502(a).

                                                        2
                                                                                     Circulated 07/17/2015 11:02 AM




        Additionally, the Court set each jail sentence consecutive to the jail sentence imposed on

the Information prior thereto for an aggregate sentence of incarceration in a State Correctional

Institution of not less than 29!h to 61 years' incarceration. Defendant was sentenced within the

standard range of the guideline sentence.

        On December 28, 2012, Defendant filed a Motion to Modify Sentence, requesting that the

sentence be modified so as to permit Defendant to serve th.e sentences at each count WITIIlN a

docket number concurrently, as opposed to consecutively to each other, which would decrease

his minimum sentence to l7 years. On January 3, 20i3, the Commonwealth filed an Answer to

Defendant's Motion to Modify Sentence. By Order of January 7, 2013, the Court denied

Defendant's Motion to Modify Sentence. On November 8, 2013, Defendant filed a petition

under the PCRA alleging ineffective assistance of counsel; on November 13, 2013, the Court

appointed counsel to represent Defendant. On June 20,.2014, PCRA counsel filed an amended

petition for post-conviction collateral relief, alleging, among other things, that trial counsel failed

to file an appeal at Defendant's request. By Answer filed July 18, 2014, the Commonwealth

agreed that a hearing should be held; the hearing W8;8 scheduled for September 19, 2014. On

September 19, 2014, foregoing a hearing, the Court entered an Order reinstating Defendant's

appellate rights and granting leave to file an appeal mmc pro time. The instant appeal followed.

                                            DISCUSSION

       Defendant alleges the aggregate sentence of not less than 29Yl nor more than 61 years of

imprisonment is manifestly excessive and constitutes too severe a punishment.

       Sentencing is within the sound discretion of the sentencing court and will not be

disturbed absent an abuse of discretion. Commonwealth v. Boyer, 856 A.2d 149, 153 (Pa.Super.

2004). "An abuse of discretion is more than just an error in judgment and. on appeal, the trial

                                                   3
                                                                                     Circulated 07/17/2015 11:02 AM




sentencing factors. Additionally, the Court considered the pre-sentence report in detail and

stated its reasons for imposing sentence at length on the record. (See id. at 12-14). The Court

noted that Defendant's age of 31 years indicated a maturity to understand the significance of his

actions. (Id. at 12). The Court found that Defendant was intelligent enough to understand the

significance of his actions having completed eleven years of education, plus training in

carpentry, landscaping, and masonry while in Delaware prisons. (/d) The Court noted

Defendant's work history, most recently in demolition, which indicates that he can follow

directions. (Id)

        The Court also read and considered each of the many victim impact statements and letters

that were provided to the court. (Id. at 13). The Court noted Defendant's extensive criminal

history, which started with theft in 1997 and included significant prison time relative to his

burglary charge out of the State of Delaware. (Id. at 12, 13). The Court considered the effect

Defendant's actions had on the community; people felt violated, frightened, irisecure, threatened,

and vulnerable. (Id at 6-10, 13-14). Additionally, Defendant was unconcerned about causing

damage to the homes he burglarized, nor was he concerned about the presence of occupants. (Id.

at 6, 9, 11 ). In light of all the factors reviewed on the record, the Court found that incarceration

was warranted because a lesser sentence would depreciate the seriousness of Defendant's

offenses. (Id.) This Court did not grant Defendant a volume discount for multiple home

burglaries, but rather imposed jail time for each home entry.

       Review of the record reveals that the Court appropriately and meaningfully considered

the sentencing factors pursuant to 42 Pa.C.S. § 9721(b). Additionally, the Court was within its

discretion in imposing consecutive sentences as permitted by the Sentencing Code. Consecutive

sentences are certainly permissible in property crimes, as well as crimes of violence, such as

                                                  5
                                                                                               Circulated 07/17/2015 11:02 AM

·'   -


          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."

          Commonwealth v. Griffin, 804 A.2d 1, 7 (Pa. Super. 2002) (citing Commonwealth v. Smith, 543

          Pa. 566, 571, 673 A.2d 893, 895 (1996)). A sentence should not be disturbed where the

          sentencing court was aware of the sentencing considerations and meaningfully weighed them.

          Commonwealth v. Fish, 752 A.2d 921, 923 (Pa.Super. 2000). The imposition of consecutive

          sentences rather than concurrent sentences lies within the sound discretion of the sentencing

          court. 42 Pa.C.S. § 9721; see also Commonwealth v. Booze, 953 A.2d 1263, 1279 (Pa.Super.

          2008).

                    In fashioning sentence, the court is required to consider protection of the public, gravity

          of the offense on the victim and community, and rehabilitative needs of the defendant 42

          Pa.C.S. § 9721 (b). The imposition of consecutive sentences rather than concurrent sentences lies

          within the sound discretion of the sentencing court. 42 PaC.S. § 9721~ see also Commonwealth

          v. Booze, 953 A.2d 1263, 1279 (Pa.Super. 2008). The sentencing court must consider the

          sentencing guidelines adopted by the Pennsylvania Commission on Sentencing, id.; however,

          upon considering the sentencing factors, the court may, in its discretion, impose a sentence ·

          outside the guidelines. Commonwealth v. Lawson, 437 Pa. Super. 521, 650 A.2d 876, 881 ·

          (1994). Also, where a sentencing judge has the benefit of a pre-sentence report, a presumption ·

          exists that he was aware of and adequately considered the defendant's relevant character

          information and mitigating factors. See Commonwealth v. Devers, 519 Pa 88, 546 A.2d 12, 18

          (1988).

                    Here, the Court had the benefit of a pre-sentence report. (N.T. Sentencing, 12/19/12, at

          3). Thus, the presumption exists that the Court was aware of and appropriately weighed the

                                                              4
                                                                                                Circulated 07/17/2015 11:02 AM

ti   ...




             burglaries committed when persons are home. Additionally, the sentences did not amount to life

             sentences since they would allow Defendant to be paroled in his early 60s. Lastly, the Court

             sentenced Defendant within the standard range on each and every count. As such, Defendant's

             claim is without merit.

                        Accordingly, the Court respectfully submits that Defendant's appeal should be dismissed

             and his judgment of sentence affirmed.




                                                IL
     l certify this document to be filed
     tn the Lancaster County Office of                                                                  ,-
           ~~~"~)
     the. Clerf< of the Courts.

     v.'f~:"•':·1···~··:~~\
           !:~~ii·
            ":~l
                       1-~:~1         ~
                                          #,.

                                    Joshua G. Parsons
                                                                     HOWARD F. KNISE
                                                                     JUDGE
                                                                                                     >
                                                                                                    -i
                                                                                                    tT1
                                                                                                       ~
                                                                                                       (')

                                                                                                     Cl)


                                                                                                    :i::i:,
                                                                                                    (':)
                                                                                                              <
                                                                                                              N
                                                                                                                  ~
                                                                                                                  .z:--
                                                                                                                  :z::
                                                                                                                  0

                                                                                                                           0
                                                                                                                            r-
                                                                                                                            l"T1
                                                                                                                            ;:o
                                                                                                                            :x
                                                                                                                           .,,
                                                                                                                                ("")




                                                                                                                           ("")
             ~~-                    Clerk of the Courts
                                                                                                    0
                                                                                                   c::
                                                                                                   :z::
                                                                                                              ¥:          c
                                                                                                                           0
                                                                                                   -.         '!?         eo
                                                                                                                          .-;
             Copies to:         Todd E. Brown, Assistant District Attorney                 .       :<         0           s»
                                                                                                              co
                                Vincent J. Quinn, 1347 Fruitville Pike, Lancaster, PA 17601 .      ~




                                                                 6
