J-A14006-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA

                       Appellee



TERRYL JORDAN HANKERSON

                       Appellant                   No. 1317 MDA 2015


           Appeal from the Judgment of Sentence June 26, 2015
             In the Court of Common Pleas of Dauphin County
            Criminal Division at No(s): CP-22-CR-0000969-2012
                          CP-22-CR-0002209-2011


BEFORE: BOWES, OTT AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                          FILED AUGUST 16, 2016

     Terryl Hankerson appeals from the June 26, 2015 judgment of

sentence imposing an aggregate term of twelve to twenty-four years

imprisonment after a jury found him guilty of robbery, criminal conspiracy,

and carrying a firearm without a license. We affirm.

     This appeal comes to us from re-sentencing after this matter was

remanded to the trial court.       In our previous disposition, we affirmed

Appellant’s convictions but vacated judgment of sentence. Commonwealth

v. Hankerson, No. 1069 MDA 2014, 2015 WL 6164434 (Pa.Super. 2015).

We found that the trial court abused its discretion when it failed to




* Retired Senior Judge assigned to the Superior Court.
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adequately state the guideline ranges on the record.             We accordingly

remanded for re-sentencing.

       We set forth the factual history of this case in our previous

memorandum and adopt it herein:

       On October 9, 2011, at approximately 5:30 a.m., Michael J.
       Swartz, a taxi driver, was at the Exxon station at Sixth and
       Maclay Streets in Harrisburg when Appellant walked over from a
       dark-colored vehicle and asked Swartz for change for a one-
       hundred dollar bill. Swartz refused. Appellant pulled out a gun.
       Swartz ran away and Appellant gave chase. An unidentified man
       (“co-conspirator”) followed Swartz in the dark vehicle and cut
       him off. Swartz fell to the ground just as Appellant and the
       vehicle caught up with him. Both men then attacked and beat
       Swartz before Appellant told his co-conspirator to go through
       Swartz’s pockets. When Swartz struggled and fought back,
       Appellant said, “F**k it. I am just going to shoot him.” Trial
       Court Opinion, at 3, citing Notes of Testimony Trial (N.T.). Just
       as Appellant pointed the gun at his face and moved to pull the
       trigger, Swartz reached for the gun and his finger jammed the
       hammer. The co-conspirator grabbed approximately $500 out of
       Swartz’s pocket, and he and Appellant jumped into the dark
       vehicle and drove away.

Id. at 1.

       Upon remand, the trial judge re-sentenced Appellant on June 26,

2015, imposing the identical sentence.           Appellant received the statutory

maximum sentence of ten to twenty years at the robbery charge, and a

consecutive two to four years at the firearms count.1 Appellant raises the

following issue for our review:

____________________________________________


1
    Appellant received a concurrent sentence at the conspiracy count.



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      Whether the trial court erred in the sentence imposed and
      [whether] Appellant can show that a substantial question
      [exists] as to whether the sentence imposed was appropriate
      under the sentencing code?

Appellant’s brief at 4.

      Preliminarily, we note that “there is no absolute right to appeal when

challenging the discretionary aspect of a sentence.”      Commonwealth v.

Ahmad, 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). Appellant filed a timely post-sentence motion for reconsideration

challenging the discretionary aspects of sentence, preserving the current

claim. Appellant then timely appealed the order denying that motion.

      As to the separate statement requirement, we note Appellant’s brief

fails to comply with Pa.R.A.P. 2119(f).    That provision mandates that an

appellant challenging the discretionary aspects of sentence shall set forth “in

a separate section of the brief a concise statement of the reasons relied

upon . . . [t]he statement shall immediately precede the argument on the

merits.” Id. Here, Appellant’s brief sets forth the statement within the body



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of the argument section. See Pa.R.A.P. 2111(a) (listing sections of the brief

and order they shall appear).         Moreover, the section addressing the

substantial question inquiry largely intertwines the merits of the claim with

the threshold question of whether we have jurisdiction to reach the merits.

This statement is thus defective. Nevertheless, the Commonwealth does not

challenge the adequacy of the statement and we will not find waiver on that

basis. Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa.Super. 2014).

      We now address whether Appellant has raised a substantial question.

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.”

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013). We glean

two reasons from Appellant’s brief. Appellant avers that the trial court did

not consider mitigating factors, and claims that the court imposed an

excessive sentence.

      We first address the excessive sentence argument.              Appellant cites

Commonwealth v. Gonzalez, 109 A.3d 711 (Pa.Super. 2015) for the

proposition that a claim of excessiveness coupled with an allegation of failure

to   consider   mitigating   circumstances      raises   a    substantial   question.

Gonzalez, in turn, cites Commonwealth v. Dodge, 77 A.3d 1263

(Pa.Super. 2013) (en banc).          However, Dodge discussed excessive

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sentences in the context of consecutive sentences for multiple crimes.2

Here, however, the excessiveness claim is not based on consecutive

sentences.     Instead, it is predicated on the imposition of the statutory

maximum for Appellant’s conviction of a felony of the first degree. In this

regard, Appellant cites 42 Pa.C.S. § 9781(3), which requires remand where

“the sentencing court sentenced outside the sentencing guidelines and the

sentence is unreasonable.”         However, that provision applies only if, upon

merits review, we conclude the sentence is unreasonable.               It does not

address our ability to reach the merits stage.

       We discern that the excessive sentence claim is, in reality, a claim that

the sentencing court failed to provide adequate reasons on the record to

justify the departure from the guidelines.          Commonwealth v. Monahan,

860 A.2d 180, 181 (Pa.Super. 2004).              Hence, we decline to find that the

imposition of a statutory maximum sentence, by itself, raises a substantial

question based on excessiveness.

       Nevertheless, we agree that a substantial question is often found

where a sentence is outside the guidelines, and the appellant asserts a

failure to consider relevant sentencing criteria. Indeed, the mere allegation

of a failure to consider the factors outlined in 42 Pa.C.S. § 9721(b) may
____________________________________________


2
  Of course, such excessiveness claims often arise where the sentence for
each individual crime is within the guidelines.    Here, in contrast, the
sentence imposed was the statutory maximum.



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itself present a substantial question.      See Commonwealth v. Riggs, 63

A.3d 780, 786 (Pa.Super. 2012) (finding substantial question where

appellant   alleged   trial   court   did   not   consider   relevant   criteria);

Commonwealth v. Downing, 990 A.2d 788, 793 (Pa.Super. 2010) (same).

But see Commonwealth v. Cannon, 954 A.2d 1222, 1229 (Pa.Super.

2008) (bald assertions or invocation of special words does not raise

substantial question; appellant must articulate how the court violated the

sentencing code). Due to the imposition of the maximum sentence at the

robbery count and the allegation of failing to consider the sentencing factors,

we find Appellant has raised a substantial question.

      Having determined we have jurisdiction to review the claim, we now

address whether the sentencing court abused its discretion. Our standard of

review for sentencing claims is well-settled.

      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. Johnson, 967 A.2d 1001
      (Pa.Super. 2009). An abuse of discretion requires the trial court
      to have acted with manifest unreasonableness, or partiality,
      prejudice, bias, or ill-will, or such lack of support so as to be
      clearly erroneous. Commonwealth v. Walls, 592 Pa. 557, 926
      A.2d 957 (2007)

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010).                   As

noted supra, Appellant asks us to vacate and remand since the sentence is

outside the guidelines and is unreasonable. We are guided by the following




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definition of reasonableness when assessing a sentence outside of the

guidelines:

      The Walls Court noted that the term “unreasonable” generally
      means a decision that is either irrational or not guided by sound
      judgment. It held that a sentence can be defined as
      unreasonable either upon review of the four elements contained
      in § 9781(d) or if the sentencing court failed to take into account
      the factors outlined in 42 Pa.C.S. § 9721(b).

Commonwealth v. Daniel, 30 A.3d 494, 497 (Pa.Super. 2011). Here, it is

clear that the sentencing court accounted for the factors outlined in 42

Pa.C.S. § 9721(b) (sentence must be 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). While the trial judge ultimately imposed the same sentence, he

acknowledged in-court that he had weighed all those factors.           Our prior

disposition did not fault the court on that account; instead, we held the court

failed to make that determination in-court and on the record. Additionally,

we noted that the original Pa.R.A.P. 1925(a) opinion could not serve as an

adequate substitute for an in-court acknowledgement of those factors. The

re-sentencing proceeding herein meets the statutory requirements and it is

clear by virtue of the prior opinion that the judge considered the factors in

imposing an identical sentence.      Appellant concedes that the trial court

correctly set forth the guideline ranges. Appellant’s brief at 13.




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       Upon our review of the record, and the sentencing factors outlined in
                           3
42 Pa.C.S. § 9781(d),          we find no basis to deem the judgment of sentence

unreasonable. Appellant had a prior record score of two, and, as the trial

court aptly noted, Appellant attempted to fire a gun during the robbery.

Only the victim’s opportune actions prevented the gun from firing.

       Appellant also asserts that the possibility of death should be

discounted since that risk is inherent in any robbery involving the threat of

serious bodily injury.         Id. at 15.      However, the trial court could surely

consider, in fashioning a sentence, the fact that the possibility of death

dramatically multiplied once Appellant attempted to pull the trigger.

Additionally, Appellant and his cohort chased and beat the victim. Appellant

could have terminated the encounter at multiple points during the incident.

In view of the four factors set forth in 42 Pa.C.S. § 9781(d) and the trial

court’s consideration of 42 Pa.C.S. § 9721(b), we cannot deem the sentence

irrational. The sentence was guided by sound judgment. Therefore, we find

no abuse of discretion.



____________________________________________


3
   The four factors are: (1) The nature and circumstances of the offense and
the history and characteristics of the defendant; (2) The opportunity of the
sentencing court to observe the defendant, including any presentence
investigation; (3) The findings upon which the sentence was based; (4) The
guidelines promulgated by the commission.




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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/16/2016




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