J-A22014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

COREY L. WILLIAMS

                            Appellant               No. 1989 MDA 2015


         Appeal from the Judgment of Sentence September 10, 2015
             In the Court of Common Pleas of Franklin County
            Criminal Division at No(s): CP-28-CR-0000511-2002


BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                        FILED AUGUST 24, 2016

       Corey L. Williams appeals from the judgment of sentence entered in

the Franklin County Court of Common Pleas following his jury trial

convictions for robbery, simple assault, recklessly endangering another

person (“REAP”), terroristic threats, and carrying a firearm without a

license.1 We affirm.

       The trial court set forth the relevant facts and procedural history of

this appeal as follows:

          On October 23, 2003, [Appellant] was convicted by a jury
          on eleven separate counts stemming from a robbery of a
          Getty-Mart.   On December 3, 2003, [Appellant] was
          sentenced to an aggregate sentence of 81 to 168
          months[’] incarceration.   Included in this aggregate
____________________________________________


1
  18 Pa.C.S. §§ 3701(a)(1), 2701(a)(3), 2705, 2706(a)(1), and 6106(a),
respectively.
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       sentence was a specific sentence for 73 to 132 months[’]
       incarceration on Count 1 – Robbery. After exhausting
       direct appeal rights, [Appellant] filed a timely pro se PCRA
       petition on December 20, 2010. Throughout the PCRA
       process, [Appellant] had no less than 10 different
       attorneys represent him at some point, and filed numerous
       pro se hybrid motions. On December 18, 2013, this court
       denied all of [Appellant’s] claims in his PCRA petition.
       [Appellant] appealed this court’s denial, and on October
       14, 2014, the Superior Court issued an opinion ruling that
       [Appellant’s] sentence was illegal because the 72 to 132
       month sentence violated 42 Pa.C.S. § 9756(b)(1) by
       imposing a minimum sentence that was more than one-
       half of the maximum. As such, the Superior Court vacated
       and remanded the entire judgment of sentence for
       resentencing.

       On September 10, 2015, this court held a resentencing
       hearing. The court heard argument from Assistant District
       Attorney Zachary Mills, as well as testimony from
       [Appellant]. Upon [Appellant] appearing contrite, taking
       responsibility for his actions, and showing the attempts he
       has made to better himself while incarcerated, the court
       resentenced [Appellant] to 60 to 120 months[’]
       incarceration on Count 1, which reduced the entire
       sentencing scheme by one year.

       On September 18, 2015, [Appellant] filed a motion to
       modify sentence. On October 12, 2015, the court denied
       the motion, reasoning that everything [Appellant] asked
       the court to consider in modifying the sentence had
       already been considered by the court in determining the
       sentence. At this point, [Appellant] sought to appeal the
       order, while Attorney Clark saw no merit in that course of
       action. On November 12, 2015, Attorney Clark filed a
       motion to withdraw as counsel, which was accompanied by
       a memorandum outlining the irretrievable breakdown of
       the attorney-client relationship. To protect [Appellant’s]
       rights, on that same date, Attorney Clark also filed a notice
       of appeal on his behalf. On December 9, 2015, [Appellant]
       filed a concise statement of matters complained of on
       appeal. On December 17, 2015, the court entered an
       order granting Attorney Clark leave to withdraw as
       counsel, and appointed Drew Deyo, Esq., as counsel.

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Trial Court Pa.R.A.P. 1925(a) Opinion, filed December 18, 2015, at 1-2.

      Appellant raises the following issue for our review:

         IN CONSIDERATION OF THE EVIDENCE PRESENTED AT
         APPELLANT’S RESENTENCING HEARING, DID THE TRIAL
         COURT COMMIT AN ABUSE OF DISCRETION BY
         SENTENCING     APPELLANT    WITHOUT     PROPER
         CONSIDERATION OF THE PENNSYLVANIA SENTENCING
         FACTORS,   AND    BY  RUNNING   HIS   SENTENCE
         CONSECUTIVE WITH THE SENTENCE ALREADY IMPOSED
         IN FRANKLIN COUNTY COURT OF COMMON PLEAS CASE
         NUMBER 432 OF 2002?

Appellant’s Brief at 6.

      Appellant challenges the discretionary aspects of his sentence.       He

argues the court failed to properly consider his rehabilitative needs and

potential when sentencing him. Although he admits the court sentenced him

within the standard range, Appellant claims the court abused its discretion

by imposing his sentence consecutively to the sentence he is serving on a

separate docket for a separate crime. Appellant’s issue merits no relief.

      Challenges to the discretionary aspects of sentencing do not entitle a

petitioner to review as of right. Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super.2011). Before this Court can address such a discretionary

challenge, an appellant must invoke this Court’s jurisdiction by satisfying the

following four-part test:

      (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

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      substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code.

Id.

      Instantly, Appellant preserved his issue in a post-sentence motion,

filed a timely notice of appeal and included in his brief a concise statement

of reasons relied upon for allowance of appeal with respect to the

discretionary aspects of his sentence pursuant to Pa.R.A.P. 2119(f).     See

Appellant’s Brief at 14-15. Thus, we must determine whether Appellant has

raised a substantial question that the sentence appealed from is not

appropriate under the Sentencing Code.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.”    Commonwealth v. Prisk, 13 A.3d

526, 533 (Pa.Super.2011). Further:

         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. (internal citations omitted).

      We observe:

         a defendant may raise a substantial question where he
         receives consecutive sentences within the 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. See Commonwealth
         v. Moury, 992 A.2d 162, 171–172 (Pa.Super.2010) (“The
         imposition of consecutive, rather than concurrent,


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          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.”)

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

reargument denied (Nov. 21, 2013), appeal denied, 91 A.3d 161 (Pa.2014)

(internal citations omitted) (emphasis in original).

       “[O]rdinarily, a claim that the sentencing court failed to consider or

accord proper weight to a specific sentencing factor does not raise a

substantial question.”       Commonwealth v. Berry, 785 A.2d 994, 996-97

(Pa.Super.    2001)      (internal    citation     omitted)   (emphasis    in    original).

However,     “reliance      on   impermissible      sentencing   factors   can    raise   a

substantial question.” Dodge, 77 A.3d at 1273 (citing Commonwealth v.

Roden, 730 A.2d 995 (Pa.Super.1999)).                   Further, a challenge to the

imposition of consecutive sentences as unduly excessive, together with a

claim that the court failed to consider rehabilitative needs upon fashioning

its   sentence,   presents       a   substantial    question.     Commonwealth            v.

Caldwell, 2015 PA Super 128, 117 A.3d 763, 770 (Pa.Super.2015) (en

banc), appeal denied, 126 A.3d 1282 (Pa.2015).

       Additionally:

          In determining whether a substantial question exists, this
          Court does not examine the merits of whether the
          sentence is actually excessive. Rather, we look to whether
          the appellant has forwarded a plausible argument that the
          sentence, when it is within the guideline ranges, is clearly
          unreasonable.    Concomitantly, the substantial question


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          determination does not require the court to decide the
          merits of whether the sentence is clearly unreasonable.

Id.

       Here, the consecutive imposition of Appellant’s sentences did not

result in a clearly unreasonable or excessive sentence, and Appellant’s bald

claim of excessiveness due to the consecutive nature of his sentence does

not raise a substantial question.         See Dodge, supra.     He further fails to

forward a plausible argument that his sentence is clearly unreasonable

because the court failed to adequately consider his rehabilitative needs. See

id.; see also Berry, supra.2           Thus, Appellant failed to raise a substantial

question for our review.3

       Judgment of sentence affirmed.


____________________________________________


2
   Further, Appellant fails to raise a substantial question through the
combination of his challenges to the discretionary aspects of his sentence,
because he does not articulate a plausible argument that the court’s
complete failure to consider his rehabilitative needs, combined with the
consecutive imposition of his sentences resulted in an unduly harsh or
unreasonable sentence. C.f. Caldwell, supra. He argues, rather, that the
court did not properly consider his rehabilitative needs and potential, and
that the consecutive imposition of his present sentence with the sentence
already imposed on a separate crime “contradicted the norms that underlie
the sentencing process.” See Appellant’s Brief at 14-15.
3
  Moreover, even if Appellant had raised a substantial question, his issue is
devoid of merit. After Appellant’s judgment of sentence of 72-132 months’
incarceration was vacated, the court conducted a sentencing hearing,
considered all factors Appellant raised, and resentenced Appellant to 60-120
months’ incarceration, thus reducing his sentence by a year.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/24/2016




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