J-S68027-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                   Appellee                :
                                           :
             v.                            :
                                           :
KARIBE TOYONN BEATTY,                      :
                                           :
                   Appellant               :   No. 105 MDA 2017

            Appeal from the Judgment of Sentence October 24, 2016
        in the Court of Common Pleas of York County, Criminal Division,
          at No(s): CP-67-CR-0001140-2016, CP-67-CR-0006914-2015

BEFORE:       LAZARUS, DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED APRIL 06, 2018

        Karibe Toyonn Beatty (Appellant) appeals from the October 24, 2016

aggregate judgment of sentence of 102 to 204 months of imprisonment. We

affirm.

        On September 7, 2016, Appellant entered an open guilty plea to two

counts of felony robbery related to his demanding money at two different

financial institutions on different occasions in 2015. On October 24, 2016,

the trial court imposed two consecutive sentences of 51 to 102 months of

incarceration.    On November 1, 2016, Appellant pro se filed both a PCRA1

petition claiming ineffective assistance of plea counsel, and a motion to

withdraw his plea. Counsel was appointed, who filed a post-sentence motion


1   Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.



*Retired Senior Judge assigned to the Superior Court.
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supplementing Appellant’s pro se post-sentence motion.        At a subsequent

hearing to address both the post-sentence motion and the PCRA petition,

Appellant withdrew his PCRA claims.          The trial court proceeded with

Appellant’s post-sentence motions, and denied relief by order of October 24,

2016.

        Appellant timely filed a notice of appeal.   Per court order, Appellant

filed a statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b).2    He presents one question for this Court’s review: “Whether the

sentencing court committed a manifest abuse of discretion in sentencing []

Appellant pursuant to a sentencing scheme wherein the imposed sentences

were structured to be at the top of the aggravated range and consecutive

one to the other?” Appellant’s Brief at 3.

        We consider this question mindful of the following.

        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. 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.

                                      ***



2  Counsel filed the Rule 1925(b) statement more than 21 days after being
ordered to do so. However, the trial court in its opinion addressed the
issues raised in the late-filed statement, so we need not remand for the
filing of a statement nunc pro tunc pursuant to Pa.R.A.P. 1925(c)(3).



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            When imposing sentence, a court is required to consider
      the particular circumstances of the offense and the character of
      the defendant. In considering these factors, the court should
      refer to the defendant’s prior criminal record, age, personal
      characteristics and potential for rehabilitation.

Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)

(internal citations and quotation marks omitted).

      An appellant is not entitled to the review of challenges to the
      discretionary aspects of a sentence as of right. Rather, an
      appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction. We determine whether the
      appellant has invoked our jurisdiction by considering the
      following four factors:

            (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.[] § 9781(b).

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)

(some citations omitted).

      Here, Appellant filed a notice of appeal after preserving the issue by

filing a motion to modify sentence, and his brief contains a statement

pursuant to Pa.R.A.P. 2119(f).      We thus consider whether there is a

substantial question that Appellant’s sentence is inappropriate.

      Appellant contends that the imposition of consecutive, aggravated-

range sentences is excessive.        He posits that the sentence was not

warranted because “[t]here is nothing atypical about the Appellant’s conduct

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that was not accounted for by the criminal statute and his sentencing

guidelines.” Appellant’s Brief at 8.

      Assuming arguendo that Appellant has raised a substantial question,3

we are not persuaded that his sentence was the result of an abuse of

discretion. The trial court at sentencing offered sufficient, valid reasons for

imposing the sentences it did:

            [Appellant] has a significant criminal history since [a]ge
      11. He is 23 years of age. He has been in trouble more years
      than he has been out of trouble in his life, and he says, “Just
      give me a second chance.” We are so far past second chances in
      this case that we are in a different galaxy, you and I, in
      perception of this.

             His crimes were violent while he was a juvenile, involved
      felonies, including escape in 2010. Then, as an adult, all of his
      offenses have been felonies, except for one theft for which he
      pled. He was on State parole at the time. Putting him in a State
      prison only serves to protect the community. It has no impact
      on making him change the way he thinks and the way he lives
      his life. In terms of competing and balancing the interest of
      society with his interests, I think I have a stronger need to
      protect society.

             Mr. Beatty, you have had more opportunities to turn your
      life around than anybody else I’ve seen, and you chose not to do


3 Appellant’s claim amounts to little more than a bald claim of excessiveness,
which does not raise a substantial question. See, e.g., Commonwealth v.
Wright, 832 A.2d 1104, 1107 (Pa. Super. 2003) (“[Wright’s] claim here,
that consecutive sentences are too harsh, is little more than a bald claim of
excessiveness. [Wright] simply has not raised a substantial question and so
is not entitled to review.”). However, this Court has addressed the merits of
claims that “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 in this case.” Commonwealth v. Zirkle, 107 A.3d
127, 133-34 (Pa. Super. 2014) (internal quotation marks omitted).



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      it, deliberately chose not to do it. … You didn’t much care what
      the consequences were, and you chose to continue to live your
      life that way.

             The Ohio Risk Assessment indicates that he’s got a high
      likelihood of recidivism. He is a RFEL, or repeat felon. The
      offense gravity score in both cases are sevens, and I, quite
      frankly, don’t see what anybody can do, other than you, to make
      you turn your life around. You have already had the tools. You
      have had the opportunity. The entire purpose of the juvenile
      system for the seven years you were involved with it was to give
      you the chance to make better decisions in your life. You never
      availed yourself of it. You just kept living your life the way you
      lived it. Again, it didn’t have any impact on the way you lived it
      when you became an adult.

N.T., 10/24/2016, at 5-6.

      The trial court’s determination was not manifestly unreasonable, or

was the product of partiality, prejudice, bias, or ill-will. First, the trial court

reviewed Appellant’s presentence investigation report, and thus was aware

of all relevant sentencing factors.4 Commonwealth v. Baker, 72 A.3d 652,

663 (Pa. Super. 2013).          Second, Appellant’s repeated failure to be

rehabilitated, and his commission of new crimes while still under supervision

for prior offenses, constituted justification for sentencing him in the

aggravated range.     Accord Commonwealth v. Simpson, 829 A.2d 334,

338-39 (Pa. Super. 2003) (finding no abuse of discretion in imposition of

sentences in excess of the aggravated range where the defendant had an



4We also note that the sentence that the trial court imposed is precisely the
sentence recommended in the presentence investigation report. Trial Court
Opinion, 4/7/2017, at 8.



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extensive criminal history and committed the crimes at issue while on

parole).   Finally, Appellant is not entitled to a volume discount for

committing multiple robberies, of different banks, on different days.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013).

      Accordingly, Appellant is entitled to no relief from this Court.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/6/2018




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