J-S44021-18



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 JULIAN DENT                             :
                                         :
                   Appellant             :   No. 1195 EDA 2017

        Appeal from the Judgment of Sentence September 8, 2014
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0001231-2014,
                        CP-51-CR-0004231-2014


BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                              FILED JULY 27, 2018

     Julian Dent (Appellant) appeals from the judgment of sentence imposed

after he pled guilty at Docket 1232-2014 to aggravated assault, attempted

robbery by threatening serious bodily injury, conspiracy, and possession of a

firearm by a minor; and at Docket 1231-2014 to robbery by inflicting serious

bodily injury, conspiracy to robbery by inflicting serious bodily injury,

possession of a firearm by a minor, and simple assault. We affirm.

     The trial court summarized the background of this case as follows:

           For incidents occurring December 20-21, 2013, Julian Dent,
     the Appellant, was arrested and charged with two counts of
     aggravated assault (F2), conspiracy to robbery by threatening
     serious bodily injury (F1), two counts of carrying a firearm without
     a license (F3), attempted theft by unlawful taking of movable
     property (M1), two counts of carrying a firearm in public in
     Philadelphia (M1), two counts of possession of a firearm by a
     minor (M1), two counts of possession of a criminal instrument
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      (M1), two counts of simple assault (M2), recklessly endangering
      another person (M2), attempted robbery by inflicting serious
      bodily injury (F1), robbery by inflicting serious bodily injury (F1),
      conspiracy to robbery by inflicting serious bodily injury (F1), theft
      by unlawful taking of movable property (M1), and receiving stolen
      property (M2).

            On January 30, 2014, all ten charges were held for court.
      On February 7, 2014, the charge of attempted robbery by inflicting
      serious bodily injury was replaced with attempted robbery by
      threatening serious bodily injury (F1). On July 11, 2014, a
      decertification hearing was held before the Honorable Benjamin
      Lerner and decertification of the Appellant was denied. On
      September 8, 2014, the Appellant entered an open guilty plea on
      CP-XX-XXXXXXX-2014 to aggravated assault, attempted robbery
      by threatening serious bodily injury, conspiracy, and possession
      of a firearm by a minor. On CP-51-C R-0004231-2014, the
      Appellant entered an open guilty plea to robbery by inflicting
      serious bodily injury, conspiracy to robbery by inflicting serious
      bodily injury, possession of a firearm by a minor, and simple
      assault. The Commonwealth entered a nolle prosequi on the
      remaining charges. The Appellant was sentenced to a total of six
      (6) to twelve (12) years of state incarceration and two (2) years
      of state-supervised probation with credit for time served.

           On September 16, 2014, the Appellant filed a motion for
      reconsideration of sentence. On September 17, 2014, the court
      denied the Appellant’s motion without a hearing. On March 7,
      2017, a Post-Conviction Relief Act (PCRA) hearing was held and
      the Appellant’s motion for reinstatement of his appellate rights
      nuns pro tunc was granted. The Appellant timely filed a direct
      appeal to the Pennsylvania Superior Court.

Trial Court Opinion, 2/28/18, at 1-2 (footnotes citing the relevant portions of

the Crimes Code omitted).

      Both Appellant and the trial court have complied with Pennsylvania Rule

of Appellate Procedure 1925. On appeal, Appellant presents a single issue for

our review:




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           Did the Sentencing Court abuse its discretion when it
      sentenced [Appellant] to a term of six (6) to twelve (12) years,
      which was manifestly excessive under all the circumstances?

Appellant’s Brief at 3.

      Appellant challenges the discretionary aspects of his sentence.           Our

standard of review when considering discretionary aspects of sentencing

claims is as follows:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge. The standard employed when reviewing the
      discretionary aspects of sentencing is very narrow. We may
      reverse only if the sentencing court abused its discretion or
      committed an error of law. A sentence will not be disturbed on
      appeal absent a manifest abuse of discretion. In this context, an
      abuse of discretion is not shown merely by an error in judgment.
      Rather, the appellant must establish, by reference to the record,
      that the sentencing court ignored or misapplied the law, exercised
      its judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision. We must accord
      the sentencing court’s decision great weight because it was in the
      best position to review the defendant’s character, defiance or
      indifference, and the overall effect and nature of the crime.

Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (internal

quotations and citations omitted).

      “The right to appellate review of the discretionary aspects of a sentence

is not absolute, and must be considered a petition for permission to appeal.”

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014),

appeal denied, 104 A.3d 1 (Pa. 2014). “An appellant must satisfy a four-

part test to invoke this Court’s jurisdiction when challenging the discretionary

aspects of a sentence.”     Id.   We conduct this four-part test to determine

whether:

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     (1) the appellant preserved the issue either by raising it at the
     time of sentencing or in a post[-]sentence motion; (2) the
     appellant filed a timely notice of appeal; (3) the appellant set forth
     a concise statement of reasons relied upon for the allowance of
     his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant
     raises a substantial question for our review.


Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted), appeal denied, 86 A.3d 231 (Pa. 2014). “A defendant presents a

substantial question when he sets forth a plausible argument that the

sentence violates a provision of the sentencing code or is contrary to the

fundamental norms of the sentencing process.” Commonwealth v. Dodge,

77 A.3d 1263, 1268 (Pa. Super. 2013) (quotations and citations omitted),

appeal denied, 91 A.3d 161 (Pa. 2014).

     Here, Appellant has substantially complied with the first three prongs of

the discretionary aspect test to invoke our jurisdiction. We thus proceed to

determine whether he has raised a substantial question. Whether a particular

issue constitutes a substantial question about the appropriateness of a

sentence   is   a   question   to   be   evaluated   on   a   case-by-case    basis.

Commonwealth v. Johnson, 961 A.2d 877, 879 (Pa. Super. 2008), appeal

denied, 968 A.3d 1280 (Pa. 2009).

     Appellant argues that his 6 to 12 year sentence was manifestly

excessive because he was a juvenile when he committed the crimes, had a

prior record score of zero, and has an IQ of 72.          Appellant’s Brief at 4-5

(Petition for Allowance of Appeal with Respect to Discretionary Aspects of

Sentence Pursuant to Rule of Appellate Procedure 2119(f)); 13-15.               The


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essence of this claim is that the trial court abused its discretion by failing to

consider mitigating factors.

      In his two pages of argument, Appellant cites only one case to support

this claim. See Appellant’s Brief at 14-15, citing Commonwealth v. Hyland,

875 A.2d 1175 (Pa. Super. 2005). In Hyland, we reviewed a sentencing

claim from an appellant who was sentenced in the aggravated range. In

granting relief and vacating the appellant’s sentence, we stated:

      [The sentencing court’s] comments indicate the sentencing court
      focused exclusively on Appellant’s failed attempt to blame the
      accident on Mr. Geiger, the seriousness of the offense, and
      Appellant’s need for rehabilitation. The court virtually ignored
      Appellant’s lack of any prior criminal record, his age, and his
      personal characteristics, and his life situation. In light of these
      facts, we vacate Appellant’s judgment of sentence and remand for
      re-sentencing so that the court might consider the mitigating
      circumstances of this case in balance with what it considers
      aggravating factors.

Hyland, 875 A.2d at 1185.        Our decision in Hyland is consistent with

Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003) (en

banc) (stating that a substantial question is raised where an appellant alleges

that the sentencing court imposed a sentence in the aggravated range without

adequately considering mitigating circumstances). However, in the present

case, Appellant was sentenced in the standard range. We have held that

when an appellant has been sentenced in the standard range, “a claim that

the court failed to consider certain mitigating factors does not present a

substantial question.” Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.

Super. 2010). Thus, Appellant has failed to present a substantial question.

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      Furthermore, even had Appellant presented a substantial question, it is

well-settled that:

      [W]e can reverse a standard-range sentence only if the sentence
      is clearly unreasonable when viewed in light of the four statutory
      factors outlined in 42 Pa.C.S. § 9781(d). Commonwealth v.
      Walls, 592 Pa. 557, 926 A.2d 957, 963–964 (2007); see also
      Commonwealth v. Macias, 968 A.2d 773 (Pa. Super. 2009).
      Section 9781(d) provides that when we review this type of
      question, we have regard for:

        (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.

      Walls, supra at 963. Furthermore, “rejection of a sentencing
      court's imposition of sentence on unreasonableness grounds
      [should] occur infrequently, whether the sentence is above or
      below the guidelines ranges.” Macias, supra at 777 (quoting
      Walls, supra at 964).

Commonwealth v. Corley, 31 A.3d 293, 298 (Pa. Super. 2011).

      It is evident from the record that – contrary Appellant’s argument – the

trial court at sentencing considered Appellant’s juvenile status at the time of

the crimes, his intellectual capacity, and his zero prior record score. We agree

with the trial court’s statement that “[t]he record reflects the court’s careful

consideration of the Appellant’s background and the circumstances of his

offenses before delivering its sentence.” Trial Court Opinion, 2/28/18, at 9-

10. The court explained:


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            Here, the Appellant’s total sentence of six (6) to twelve (12)
     years of incarceration and two (2) years of probation for the eight
     charges to which he pled guilty was more than reasonable . . . the
     court extensively considered the Appellant’s history and
     characteristics along with the nature and circumstances of the
     Appellant’s multiple offenses. At the decertification hearing, the
     testimony of Dr. Skoller and his forensic psychiatric evaluation
     showed that the Appellant harbored a below average to low IQ
     and bipolar attention deficit disorder, coupled with a psychosocial
     background of drug and alcohol use. (N.T. 7/11/14 pp. 9-1 1). The
     Appellant had also previously been committed to juvenile facilities
     for about twenty (20) months and it was only about two weeks
     after his release from the facilities that he committed the robbery
     and attempted robbery. (N.T. 7/11/14 pp. 17-18, 22). The court
     took into account the Appellant’s age, life situation, and prior
     criminal record at the sentencing hearing and made clear that his
     less active role in the [one] robbery . . . would also be reflected in
     its sentence. (N.T. 9/8/14 pp. 22, 32-33).

                                     ***

            [T]he sentencing guidelines provided for a maximum of one
     hundred and two (102) years of incarceration before even
     including the forty (40) to fifty-four (54) months recommended as
     a deadly weapon enhancement on each case. (N.T. 9/8/14 pp. 9,
     22). Of the eight charges to which the Appellant pled guilty, the
     court ran five concurrently and assessed no further penalty on the
     remaining three. (N.T. 9/8/14 pp. 35-36). All told, the court
     significantly reduced the maximum total years of incarceration the
     Appellant faced.

           As it concerns the Appellant’s assertion that the court
     abused its discretion, since it did not exceed the statutory limit for
     this case of beyond a hundred years, the Appellant’s contention
     solely rests upon whether the court’s sentence was manifestly
     excessive. On that, it is beyond dispute that the court significantly
     mitigated the Appellant’s sentence by running five of the charges
     concurrent and assessing no further penalty on the remaining
     three. Further, the minimum of five (5) to ten (10) years of
     incarceration was only slightly extended to six (6) to twelve (12)
     years of incarceration and the two (2) year probation tail given by
     the court.

Trial Court Opinion, 2/28/18, at 9-10.

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     For the above reasons, we find no merit to Appellant’s challenge to the

discretionary aspects of his sentence. We therefore affirm the judgment of

sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/27/18




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