J-A05016-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
                v.                         :
                                           :
                                           :
 JEFFREY DAVID BURTON                      :
                                           :
                     Appellant             :   No. 1468 WDA 2017

       Appeal from the Judgment of Sentence Entered August 3, 2017
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0014040-2016


BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.

MEMORANDUM BY SHOGAN, J.:                               FILED JULY 12, 2019

      Appellant, Jeffrey David Burton, appeals from the judgment of sentence

entered August 3, 2017, in the Court of Common Pleas of Allegheny County.

After careful consideration, we vacate in part and affirm in part.

      The trial court summarized the factual and procedural history of this

case as follows:

             [Appellant] was charged by             criminal information
      (201614040) with one count each of driving while under the
      influence[(“DUI”)]-general       impairment      (BAC      .08-.10),1
      possession of a firearm prohibited, firearms not to be carried
                                            2

      without a license,3 fleeing or attempting to elude officer,4
      accidents involving death or personal injury,5 accident involving
      damage to attended vehicle/property,6 reckless driving,7 disregard
      traffic lanes,8 driving at safe speed,9 follow too closely,10 no rear
      lights,11 and no headlights.12 Additionally Appellant was charged
      with two counts of driving while under the influence-general
      impairment (incapable of safe driving),13 and four counts of
      recklessly endangering another person.14

            1   75 Pa.C.S. § 3802 §§A2.
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              2  18 Pa. C.S. § 6105 §§A1.
              3  18 Pa. C.S. § 6106 §§A1.
              4 75 Pa. C.S. § 3733 §§A.
              5 75 Pa. C.S. § 3742 §§A.
              6 75 Pa. C.S. § 3743§§ A.
              7 75 Pa. C.S. § 3736§§ A.
              8 75 Pa. C.S. § 3309§§ 1.
              9 75 Pa. C.S. § 3361.
              10 75 Pa. C.S. § 3310§§ A.
              11 75 Pa. C.S. § 4303§§ B.
              12 75 Pa. C.S. § 4303§§ A.
              13 75 Pa. C.S. § 3802§§ A1.
              14 18 Pa. C.S. § 2705.



            On May 18, 2017, Appellant pled guilty to all
       aforementioned charges. On August 3, 2017, Appellant was
       sentenced by the Trial Court as follows:

             Count one:     driving while under the influence-general
       impairment (BAC .08-.10)-six months of probation to be served
       concurrent to the period of incarceration imposed at count four.

             Count four: possession of a firearm prohibited-four to eight
       years incarceration;

             Count six: fleeing or attempting to elude officers-one to two
       years incarceration to be served consecutive to the period of
       incarceration imposed at count four;

             Count seven: accidents involving death or personal injury-
       one to two years incarceration to be served consecutive to the
       period of incarceration imposed at count six; and

              All remaining counts: no further penalty.[1]

              Thus, the aggregate sentence was six to twelve years
              incarceration.




____________________________________________


1 At the remaining counts, the sentencing order reflects “[a] determination
of guilty without further penalty.” Sentencing Order, 8/3/17, at 1-2.

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            On August 8, 2017, Appellant filed post-sentence motions,
            which were denied by the Trial Court on September 15,
            2017.

            This timely appeal follows.

Trial Court Opinion, 7/26/18, at 2-4. Appellant and the trial court complied

with Pa.R.A.P. 1925.

      Appellant presents the following issues for our review:

      I.    Whether [Appellant’s] sentence was illegal because he
            received a sentence on three counts of DUI under 75 Pa.C.S.
            §3802(a) for one instance of drunk driving, in contravention
            of Commonwealth v. Farrow, 168 A.3d 207 (Pa. Super.
            2017).

      II.   Did the trial court fail to consider and apply all relevant
            sentencing criteria, including the protection of the public,
            the gravity of the offense/violation, and especially
            [Appellant’s] character and rehabilitative needs, as required
            under 42 Pa.C.S. § 9721(b) (sentencing generally; general
            standards), thus making [Appellant’s] sentence excessive
            and unreasonable?

Appellant’s Brief at 6 (issues renumbered for ease of disposition).

      Appellant’s first issue challenges the legality of his sentence. Appellant

argues that his two convictions under Section 3802(a)(1) and one conviction

under Section 3802(a)(2) are virtually identical in that they all allege that

Appellant operated a vehicle “after imbibing a sufficient amount of alcohol

such that he was rendered incapable of safely driving, operating or being in




                                     -3-
J-A05016-19


actual physical control of the vehicle.”2        Appellant’s Brief at 28.   Thus,

Appellant contends that his sentences at counts two and three must be

vacated because they violate the Fifth Amendment of the United States

Constitution and Article 1, Section 10 of the Pennsylvania Constitution on

double jeopardy grounds. Id. at 29.

       Specifically, Appellant maintains that pursuant to Farrow, 168 A.3d at

215-218, his sentence at count two must be vacated as he cannot be

subjected to multiple punishments for the same act of driving under the

influence. Appellant’s Brief at 32. Appellant further posits:

       This Honorable Court should extend the holding in Farrow to
       prohibit a sentencing court from imposing multiple punishments
       for a single act under the same general subsection of 75 Pa.C.S.
       § 3802. In other words, this Honorable Court should also find that
       [Appellant’s] sentence at Count 3 must be vacated for the same
       reasons established above for Count 2 – [Appellant] was convicted
       for DUI:       General Impairment at Count 1 because the
       Commonwealth was able to establish that [Appellant’s] BAC was
       between 0.08% - 0.10%. This evidence proved his guilt at 75
       Pa.C.S. . . . §3804(a)(1). Thus, [Appellant] was convicted of DUI
       under 3802(a), and the Commonwealth should not be able to
       convict him for a second DUI for one criminal act.

Appellant’s Brief at 32-33 (footnote omitted).

       Moreover, Appellant argues that, even if Farrow is not extended to

Appellant’s sentence at count three, count three must be vacated under “a



____________________________________________


2  At count one, Appellant was charged with and convicted of violating 75
Pa.C.S. § 3802(a)(2). Criminal Information, 11/10/16, at 1; Sentencing
Order, 8/3/17, at 1. At counts two and three, Appellant was charged with and
convicted of violating 75 Pa.C.S. § 3802(a)(1). Id.

                                           -4-
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different application of the Double Jeopardy Clause.” Id. at 33. Appellant

contends that this Court has held that for sentencing purposes all counts of

DUI arising from the same instance of drunk driving must merge; he cites to

Commonwealth v. McCoy, 895 A.2d 18, 26-27 (Pa. Super. 2006), and

Commonwealth v. Williams, 871 A.2d 254, 264-267 (Pa. Super. 2005), in

support of this assertion. Id. at 34.

      Because Appellant’s contentions plainly challenge the legality of his

judgment of sentence under double jeopardy principles, we conclude that the

present claim is not subject to waiver and may be raised for the first time on

appeal.   See Commonwealth v. Foster, 960 A.2d 160, 164 (Pa. Super.

2008) (“[A]rgument premised upon double jeopardy-merger principles is

considered to relate to the legality of sentence.”). “The issue of whether a

sentence is illegal is a question of law; therefore, our task is to determine

whether the trial court erred as a matter of law and, in doing so, our scope of

review is plenary.” Commonwealth v. Kennedy, 868 A.2d 582, 590 (Pa.

Super. 2005).

      In Farrow, 168 A.3d 207, Farrow was convicted of three counts of DUI-

general impairment, in violation of 75 Pa.C.S. § 3802(a)(1), stemming from

a single episode of criminal conduct. Count one charged Farrow with DUI-

general impairment and the enhancement for refusing breath/blood alcohol

testing in violation of 75 Pa.C.S. § 3802(a)(1) and 75 Pa.C.S. § 3804(c) of the

Motor Vehicle Code. Id. at 209. Count two charged Farrow with DUI-general


                                        -5-
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impairment, where an accident resulting in damage to a vehicle occurred in

violation of 75 Pa.C.S. § 3802(a)(1) and 75 Pa.C.S. § 3804(b). Id. Count

three charged Farrow with DUI-general impairment in violation of 75 Pa.C.S.

§ 3802(a)(1).3 Id.

       Farrow was convicted at all counts. At count one, Farrow was sentenced

to three to six days of incarceration, together with a concurrent term of six

months of probation. Farrow, 168 A.3d at 210. At counts two and three, the

trial court entered a determination of “guilty without further penalty.” Id.

       On appeal, Farrow argued that the trial court violated the protection

against    double    jeopardy     under    the   United   States   and   Pennsylvania

Constitutions in convicting and sentencing her for three DUI offenses of the

same statutory provision stemming from a single episode of criminal conduct.

Id. at 210-211.        In considering Farrow’s claim, this Court outlined the

applicable law as follows:

              The Double Jeopardy Clause, applicable to the States
              through the Fourteenth Amendment, provides that no
              person shall “be subject for the same offense to be
              twice put in jeopardy of life or limb.” Furthermore,
              the Double Jeopardy Clause protects against a second
              prosecution for the same offense after acquittal. It
              protects against a second prosecution for the same
              offense after conviction. And it protects against
              multiple punishments for the same offense.



____________________________________________


3  Not relevant to our discussion but of note because this Court affirmed the
conviction, count four charged Farrow with accident involving damage to
attended vehicle in violation of 75 Pa.C.S. § 3743. Farrow, 168 A.3d at 209.

                                           -6-
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     Typically, to determine whether a defendant’s protection from
     multiple punishments for the same offense has been violated, we
     apply the test set forth in [Blockburger v. United States, 284
     U.S. 299 (1932);] see Commonwealth v. Beckwith, 449
     Pa.Super. 433, 674 A.2d 276, 279 (1996). The [United States]
     Supreme Court explained this test as follows:

            In both the multiple punishment and multiple
            prosecution contexts, the United States Supreme
            Court has concluded that where the two offenses for
            which the defendant is punished or tried cannot
            survive the “same-elements” test, the double
            jeopardy bar applies.     The same-elements test,
            sometimes referred to as the Blockburger test,
            inquires whether each offense contains an element
            not contained in the other; if not, they are the ‘same
            offense’ and double jeopardy bars additional
            punishment and successive prosecution.

     We have long followed the “same-elements” test of Blockburger
     in this Commonwealth.

Farrow, 168 A.3d at 214-215 (some internal citations and quotations

omitted).

     After setting forth these general principles, however, this Court

acknowledged that Farrow’s claim was “unusual,” as she did not rely on the

Blockburger test since there was no doubt that her three DUI-general

impairment convictions under Section 3802(a)(1) all involved the same

elements. Farrow, 168 A.3d at 215. We acknowledged that a court may

impose “guilt without further penalty” as a sentence under 42 Pa.C.S.

§ 9721(a)(2), and accordingly, we treated the dispositions at counts two and

three as sentences for purposes of the double jeopardy analysis.     Id.   In

analyzing the matter and considering precedent, we distinguished the


                                    -7-
J-A05016-19


situation in Farrow from other cases because “the issue [in Farrow] is

whether a single criminal act can result in multiple sentences for violations of

the same DUI provision” and not as a result of multiple convictions under

distinct DUI statutes. Id. at 217 (emphasis in original). We concluded that

it cannot. Id. In reaching this conclusion, we explained:

       The doctrine of merger applies w[h]ere multiple “crimes arise from
       a single criminal act and all of the statutory elements of one
       offense are included in the statutory elements of the other
       offense.” 42 Pa.C.S.A. § 9765. Where these conditions are met,
       “the court may sentence the defendant only on the higher graded
       offense.” Here, in contrast, a single criminal act violated a single
       criminal statute and the resulting sentence was subject to two
       distinct § 3804 enhancements, so long as proper notice and
       adjudicatory standards were followed. The concept of merger
       is inapplicable in these circumstances.

Id. at 218 (internal citation omitted) (emphasis added). As a result, this Court

vacated Farrow’s convictions and sentences at counts one and two, affirmed

her conviction but vacated her sentence and remanded for resentencing at

count three.4 Id. at 219.

       Applying Farrow to the matter before us, we are constrained to vacate

Appellant’s conviction and sentence at count two.        As in Farrow, herein

convictions at counts one through three result from one incident of criminal

conduct. Counts two and three are convictions of the identical DUI provision:

Section 3802(a)(1).       Furthermore, the fact that the sentence at those two



____________________________________________


4  This Court affirmed Farrow’s conviction and sentence at count four.
Farrow, 168 A.3d at 219.

                                           -8-
J-A05016-19


counts is “[a] determination of guilty without further penalty” does not change

that determination. As explained in Farrow, that determination constitutes a

punishment for purposes of double jeopardy analysis. Farrow, 168 A.3d at

215. As such, Farrow makes clear that one of these two counts must be

vacated because the trial court imposed multiple punishments for offense of

the same statutory subsection in violation of double jeopardy protections.

Thus, we vacate Appellant’s conviction and sentence entered at count two.5

       We next address Appellant’s claim that Farrow should be extended to

require that Appellant’s conviction at count three also be vacated. We cannot

agree that the determination in Farrow mandates vacation of Appellant’s

conviction at count three. As noted, Appellant’s conviction at count one is for

violation of Section 3802(a)(2), and his conviction at count three is for

violation of Section 3802(a)(1). This scenario was not the scenario before the

court in Farrow. As explained, Farrow dealt with multiple convictions of the

same statutory subsection, specifically Subsection 3802(a)(1), and thus, it is

not determinative of the issue Appellant places before this Court. For reasons

based on other precedent, however, we conclude that Appellant’s judgment

of sentence at count three should be vacated.


____________________________________________


5 The Commonwealth concedes that count two should be vacated in light of
Farrow. Commonwealth’s Brief at 19-20. In its Pa.R.A.P. 1925(a) opinion,
the trial court stated: “In light of the recent holding in Farrow, the Trial Court
acknowledges that Appellant must be resentenced at the counts of driving
while under the influence-general impairment pursuant to the dictates of
Farrow.” Trial Court Opinion, 7/26/18, at 15.

                                           -9-
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      As stated, at count one, Appellant was convicted of Subsection

3802(a)(2), and at count three, he was convicted of Subsection 3802(a)(1).

Both subsections define offenses of DUI-general impairment.           75 Pa.C.S.

§ 3802(a). Specifically, the provisions state as follows:

      (a)   General impairment. –

            (1) An individual may not drive, operate or be in
            actual physical control of the movement of a vehicle
            after imbibing a sufficient amount of alcohol such that
            the individual is rendered incapable of safely driving,
            operating or being in actual physical control of the
            movement of the vehicle.

            (2) An individual may not drive, operate or be in
            actual physical control of the movement of a vehicle
            after imbibing a sufficient amount of alcohol such that
            the alcohol concentration in the individual’s blood or
            breath is at least 0.08% but less than 0.10% within
            two hours after the individual has driven, operated or
            been in actual physical control of the movement of the
            vehicle.

75 Pa.C.S. § 3802(a).

      While both subsections define the offense of DUI-general impairment,

the two provisions allow for the offense to be established in different ways.

Under Subsection 3802(a)(1), an individual is guilty of DUI-general

impairment if he or she is in control of the movement of a motor vehicle after

imbibing a sufficient amount of alcohol “such that the individual is rendered

incapable of safely driving, operating or being in actual physical control of the

movement of the vehicle.”      As an alternative means of establishing DUI

general impairment, Subsection 3802(a)(2) allows for establishment of the


                                     - 10 -
J-A05016-19


offense when the individual has imbibed a sufficient amount of alcohol “such

that the alcohol concentration in the individual’s blood or breath is at least

0.08% but less than 0.10% within two hours after the individual has driven,

operated or been in actual physical control of the movement of the vehicle.”

Thus, these two provisions proscribe the offense of DUI-general impairment

but allow for proof of the offenses by different means of evidence: observation

versus BAC measurement.

      Reviewing Appellant’s convictions and sentences at counts one and

three in this context reflects that Appellant twice was sentenced for DUI-

general impairment for one incident of criminal conduct as a result of the

Commonwealth utilizing two different types of evidence to prove the offense.

Again, as Farrow set forth, the fact that at count three the trial court imposed

“[a] determination of guilty without further penalty” does not render one

sentence a nullity.

      We find our decision in Williams, 871 A.2d 254, to be instructive in this

matter. In Williams, the appellant was convicted of two counts of DUI: one

pursuant to 75 Pa.C.S. § 3731(a)(1) and the other pursuant to 75 Pa.C.S.

§ 3731(a)(4)(i) (both now repealed). Id. at 257. At the time of Williams’s

offense, Section 3731 of Pennsylvania’s Motor Vehicle Code provided in

relevant part, as follows:

      § 3731. Driving under influence of alcohol or controlled
      substance




                                     - 11 -
J-A05016-19


       (a) Offense defined.-A person shall not drive, operate or be in
       actual physical control of the movement of a vehicle in any of the
       following circumstances:

              (1) While under the influence of alcohol to a degree
              which renders the person incapable of safe driving.

                                          * * *

              (4)    While the amount of alcohol by weight in the blood of:

                     (i) an adult is 0.10% or greater;

75 Pa.C.S. § 3731(a)(1), (a)(4)(i).6

       The court sentenced Williams to two consecutive thirty-day flat terms of

incarceration to be followed by two concurrent terms of eighteen months of

probation. Id. at 258. On appeal, Appellant argued that his sentence was

illegal because it consisted of separate sentences under two subsections of

the same DUI statute, although they arose from a single criminal act. Id. at

261.

       In considering whether the merger doctrine barred separate sentences

for convictions of two different provisions of the same statute, this Court

stated:

              To resolve this challenge we need not engage in the
              traditional merger analysis of lesser and greater
              included offenses. Instead we examine the rationale
              favoring merger where a defendant has engaged in a
              single criminal act and he is found guilty of violating
              more than one section of a statute. If the sections
____________________________________________


6  We note that although this statute has been repealed, Subsections
3731(a)(1) and (a)(4)(i) are similar to the subsections at issue in this case:
Subsections 3802(a)(1) and (a)(2).

                                          - 12 -
J-A05016-19


           that the defendant has violated are designed to
           proscribe a single harm and the defendant in violating
           them committed one act, then the sentences merge.
           Otherwise the sentences would constitute more than
           one punishment for the same crime and be
           impermissible as violative of double jeopardy.

     Commonwealth v. Dobbs, 452 Pa.Super. 488, 682 A.2d 388,
     391 (1996) (holding aggravated assault statute presented five
     alternative bases for culpability; where only one act is at issue,
     only one sentence is appropriate).

Williams, 871 A.2d at 264.

     Moreover, quoting Commonwealth v. McCurdy, 735 A.2d 681 (Pa.

1991), the Williams Court explained that our Supreme Court, addressing

virtually identical subsections of a prior DUI statute, held that convictions

under Section 3731(a)(1) and (a)(4)(i) did not warrant separate sentences,

where only one act was at issue:

           An offense under Section 3731 may be proven by
           evidence that an individual operated a vehicle under
           the influence of alcohol to a degree that rendered him
           incapable of safe driving (subsection (a)(1)), or, while
           the amount of alcohol by weight in his blood was .10
           percent or greater (subsection (a)(4)(i)).

                                   * * *

           Understood in this manner, the driving under the
           influence statute proscribes a single harm to the
           Commonwealth—the operation of a vehicle under the
           influence to a degree that renders an individual
           incapable of safe driving. The fact that the offense
           may be established as a matter of law if the
           Commonwealth can produce the necessary chemical
           test does not constitute proof of a different offense,
           but merely represents an alternative basis for finding
           culpability.


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J-A05016-19


Willliams, 871 A.2d at 264 (quoting McCurdy, 735 A.2d at 685-686).

      In concluding that the appellant’s sentences for both subsections

resulted in a violation of double jeopardy protections, this Court stated:

      Pennsylvania law has consistently expressed and read subsections
      (a)(1) and (a)(4)(i) of the statute as constituting a single injury
      to the Commonwealth. See 75 Pa.C.S.A. § 3731(a)(1), (a)(4)(i);
      McCurdy, supra; Dobbs, supra. Guided by these cases . . . we
      need not engage in the traditional greater/lesser included offense
      analysis. Instead, we conclude the McCurdy interpretation of the
      DUI statute remains viable, despite later statutory reenactment;
      and the offense, as defined in subsections (a)(1) and (a)(4)(i),
      should not subject Appellant to separate sentences for a single
      act.9

            9  The relevance of this analysis continues, even in
            light of the recent reenactment of the DUI statute at
            75 Pa.C.S.A. § 3802.

Williams, 871 A.2d at 265-266.

      In the case sub judice, we also rely upon McCurdy to conclude that

Appellant should not be subject to multiple sentences for DUI-general

impairment resulting from a single criminal act. The DUI statutory provision

at issue proscribes a single harm to the Commonwealth, specifically, DUI-

general impairment.

      Moreover, repealed Section 3731 (a)(1) is similar to current Section

3802(a)(1), in that it proscribes operation of a motor vehicle when the

individual is incapable of safely operating the vehicle. Repealed Section 3731

(a)(4)(i) is similar to current Section 3802(a)(2) because it proscribes

operation of a motor vehicle by an individual with a certain BAC measurement.

Thus, the analysis in McCurdy is substantially similar to the issue currently

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J-A05016-19


before us, regardless of the reenactment of the DUI statute at 75 Pa.C.S.

§ 3802. The subsections of the relevant DUI statute, under current Section

3802 and repealed Section 3731, simply provide alternative bases and means

by which to establish the offense. Accordingly, application of the traditional

greater/lesser included merger-offense analysis is inappropriate.    Appellant

should not be subject to separate sentences for a single act, i.e., DUI–general

impairment.      Thus, the imposition of separate sentences under Section

3802(a)(1) and (a)(2) for Appellant’s single act of DUI-general impairment

constitutes an illegal sentence.7 Accordingly, we are constrained to vacate

Appellant’s sentence at count three as well.

       In his second issue, Appellant argues that the trial court abused its

discretion in sentencing him to an aggregate sentence of six to twelve years

of incarceration. Appellant’s Brief at 21. Appellant maintains that the trial

court failed to consider relevant sentencing criteria, “particularly the

protection of the public, the gravity of the underlying offense, and the

rehabilitative needs of [Appellant], as required by 42 Pa.C.S. § 9721(b).” Id.

Appellant further asserts that the trial court failed to consider relevant

mitigating evidence presented by Appellant. Id.


____________________________________________


7  This conclusion is consistent with this Court’s observation that “the
Commonwealth may charge separate counts, as appropriate, where the
conduct at issue exposes the defendant to criminal liability under multiple
and distinct criminal provisions found in § 3802, such as DUI-general
impairment under § 3802(a)(1) and DUI-highest rate under § 3802(c).”
Farrow, 168 A.3d at 218 n.10 (emphases added).

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      We note that “[t]he right to appellate review of the discretionary aspects

of a sentence is not absolute.” Commonwealth v. Zirkle, 107 A.3d 127,

132 (Pa. Super. 2014).        Rather, where an appellant challenges the

discretionary aspects of a sentence, the appeal should be considered a petition

for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa.

Super. 2007).

      As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

            An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a four-
      part test:

                   We conduct a four-part analysis to determine:
            (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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.

2006)).

      Here, the first three requirements of the four-part test are met:

Appellant filed a timely appeal; Appellant preserved the issue of imposition of

an excessive sentence in his post-sentence motion; and Appellant included a

statement raising this issue in his brief pursuant to Rule 2119(f). Moury, 992

A.2d at 170. Therefore, we address whether Appellant raises a substantial

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question requiring us to review the discretionary aspects of the sentence

imposed by the sentencing court.

       “We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists.”            Commonwealth v. Ahmad, 961

A.2d 884, 886-887 (Pa. Super. 2008). Allowance of appeal will be permitted

only when the appellate court determines that there is a substantial question

that   the   sentence     is   not   appropriate    under   the   Sentencing   Code.

Commonwealth v. Hartle, 894 A.2d 800, 805 (Pa. Super. 2006).                      A

substantial question exists where an appellant sets forth a plausible argument

that the sentence violates a particular provision of the Sentencing Code or is

contrary to the fundamental norms underlying the sentencing process. Id.

       In his Pa.R.A.P. 2119(f) statement, Appellant asserts that his sentence

was clearly and manifestly unreasonable because the trial court failed to

consider “his evidence in mitigation, his rehabilitative needs, and protection

of the public, which was in contravention of the fundamental norms of

sentencing and 42 Pa.C.S. §9721.”8             Appellant’s Brief at 19.    Further,



____________________________________________


8 Appellant asserted the following mitigating factors and rehabilitative needs:
Appellant presented testimony of his good character; asserted that he had
complied with requirements of parole and had rehabilitated himself on parole;
stated that he helped care for his seven-year-old daughter; stated that he has
an infant daughter; asserted that he had consistent employment during
parole; explained that he suffered from depression and post-traumatic stress
disorder; maintained that he was willing to receive treatment for his
addictions; asserted that he took responsibility for his actions; and expressed
a desire to financially provide for his family. Appellant’s Brief at 24.

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Appellant challenges his aggregate sentence, which consisted of multiple

consecutively-run sentences, as being manifestly unreasonable and unduly

harsh “considering the nature of the crimes and length of imprisonment.” Id.

      We have held that where an appellant challenges the imposition of

consecutive sentences as unduly excessive, combined with a claim that the

court failed to consider his rehabilitative needs and mitigating factors, a

substantial question has been presented. See Commonwealth v. Swope,

123 A.3d 333, 340 (Pa. Super. 2015) (“[W]e conclude that Appellant’s

challenge to the imposition of his consecutive sentences as unduly excessive,

together with his claim that the court failed to consider his rehabilitative needs

and mitigating factors upon fashioning its sentence, presents a substantial

question.”); see also Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa.

Super. 2015) (en banc) (“[A] challenge to the imposition of . . . consecutive

sentences as unduly excessive, together with [a] claim that the [trial] court

failed to consider [the defendant’s] rehabilitative needs upon fashioning its

sentence, presents a substantial question.”).          Because Appellant has

presented a substantial question, we proceed with our analysis.

             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.

Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006).

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             When imposing a sentence, the sentencing court must
       consider the factors set out in 42 Pa.C.S. § 9721(b), that is, the
       protection of the public, gravity of offense in relation to impact on
       victim and community, and rehabilitative needs of defendant, and
       it must impose an individualized sentence. The sentence should
       be based on the minimum confinement consistent with the gravity
       of the offense, the need for public protection, and the defendant’s
       needs for rehabilitation.

Commonwealth v. Ferguson, 893 A.2d 735, 739 (Pa. Super. 2006). Guided

by these standards, we must determine whether the court abused its

discretion by imposing a “manifestly excessive” sentence that constitutes “too

severe a punishment.” Id. Moreover, this Court has explained that when the

“sentencing court had the benefit of a presentence investigation report

(“PSI”), we can assume the sentencing court ‘was aware of relevant

information    regarding     defendant’s       character   and   weighed       those

considerations along with mitigating statutory factors.’” Moury, 992 A.2d at

171.

       At the sentencing hearing, the trial court stated the following:

             [The court]: I ordered a presentence report due to the
       nature of the offenses and [Appellant’s] history.          And the
       guidelines are significant in terms of calling for a period of state
       incarceration. In that regard, a presentence report has been
       prepared, along with the sentencing guidelines which were made
       part of the record. Both of these documents have been reviewed
       by the [c]ourt.

N.T., 8/3/17, at 3.

       Furthermore, the trial court gave the following reasons for imposing

Appellant’s sentence:




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J-A05016-19


           [The court]: All right. As noted, the [c]ourt has reviewed
     the presentence report which details [Appellant’s] background, his
     personal history, as well as his criminal history.

           The [c]ourt appreciates the presence of Ms. Hailsham
     [Appellant’s girlfriend and mother of his children] and her
     comments today on behalf of [Appellant]. And the [c]ourt
     empathizes with her circumstances and the two children that she’s
     raising and [Appellant’s] activities with them when he was not
     incarcerated or involved in their lives.

           The [c]ourt notes the nature of this incident was a dramatic
     one where [Appellant] was subject to a mere traffic stop. The
     county police instead of -- he did stop and at that point in time
     decided to flee the traffic stop. And high speed chases eventually
     wrecked his vehicle and struck at least one other car injuring the
     person, one of the persons in that vehicle which is listed as the
     victim in this matter.

           The [c]ourt notes the flight, I imagine, was prompted by the
     fact he was on parole and on this particular night was in
     possession of a firearm.

          In any event, the flight itself endangered the police officers
     as well as the civilians, one of whom was injured as a result of
     [Appellant’s] conduct.

           The [c]ourt notes that he has multiple firearms violations in
     the past and part of at least one of those incidents and others
     involve flight from law enforcement, perhaps on foot, but
     nonetheless prompted by the combination of alcohol and drugs
     and/or the presence of a parole violation.

           Someone might have said on an earlier occasion it’s only a
     matter of time before [Appellant] injures or kills somebody else
     and that could have very easily happened on this night.

            The [c]ourt, pursuant to its statutory mandate, the
     individualized sentences in Pennsylvania that requires me to take
     into account [Appellant’s] background and rehabilitative needs,
     the protection of the public, and the impact of the crime on the
     victims in this matter, believes that the following sentence is
     reasonable and consistent with my obligation and the guidelines
     in the statute itself in terms of the sentence to be imposed.

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J-A05016-19


N.T., 8/3/17, at 9-12.

      As is reflected by the record, the trial court considered the protection of

the public, the gravity of the offense in relation to its impact on the victim and

community, and the rehabilitative needs of Appellant in sentencing him.

Fullin, 892 A.2d at 847. Moreover, the trial court had the benefit of a PSI.

Thus, we can assume the sentencing court was aware of relevant information

regarding Appellant’s character and weighed those considerations along with

mitigating statutory     factors.   Moury, 992      A.2d at 171;       see also

Commonwealth v. Fowler, 893 A.2d 758, 766 (Pa. Super. 2005) (“Since

the sentencing court had and considered a [PSI], this fact alone was adequate

to support the sentence, and due to the court’s explicit reliance on that report,

we are required to presume that the court properly weighed the mitigating

factors present in the case.”). Accordingly, Appellant’s argument that the trial

court failed to consider mitigating evidence, specifically his need for

rehabilitation, fails. See Moury, 992 A.2d at 171; Fowler, 893 A.2d at 766.

      Furthermore, we cannot agree that Appellant’s sentence was excessive.

The sentences imposed at counts one, six, and seven are within the standard

range. Sentencing Guidelines, 1/24/17, at 1, 3-4. Appellant’s sentence at

count four was in the mitigated range. Id. at 2. “A standard range sentence

carries its own presumption of reasonability.” Commonwealth v. Hicks, 151

A.3d 216, 228 (Pa. Super. 2016) (quoting Commonwealth v. Walls, 926

A.2d 957, 964–965 (Pa. 2007)).


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J-A05016-19


       In sum, the trial court carefully considered the Section 9721(b) factors

when sentencing Appellant, including his rehabilitative needs. The trial court

reviewed the PSI and other information at its disposal when determining the

sentence, considering the gravity of the offenses, the impact on the victims,

and the need to protect the public in the future. It sentenced Appellant to

consecutive terms of imprisonment, which resulted in an aggregate term of

six to twelve years of imprisonment, and a sentence of probation for six

months commencing on August 3, 2017. This application of the guidelines

was not unreasonable. Thus, the trial court did not abuse its discretion in

sentencing Appellant, and Appellant is entitled to no relief on this claim.

       Conviction and judgment of sentence vacated as to count two.

Judgment of sentence vacated as to count three. Conviction and judgment of

sentence affirmed at count one.           Convictions and judgments of sentence

affirmed at all remaining counts.9 Jurisdiction relinquished.


____________________________________________


9 Because the trial court imposed sentences at counts two and three of “[a]
determination of guilty without further penalty,” vacation of sentences at
counts two and three does not upset the sentencing scheme.

       Where a case requires a correction of sentence, this Court has the
       option of either remanding for resentencing or amending the
       sentence directly.     [Because the sentences for the two
       convictions] run concurrently. . . . the aggregate sentence is not
       changed by merging the sentences. As such, a remand is not
       necessary. Instead we will vacate the concurrent sentence for
       [one of the convictions].




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J-A05016-19


       Judge Murray joins this Memorandum.

       P.J.E. Gantman concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/12/2019




____________________________________________


Commonwealth v. Klein, 795 A.2d 424, 430 (Pa. Super. 2002); see also
Commonwealth v. Thur, 906 A.2d 552, 569-570 (Pa. Super. 2006) (holding
if appellate court can vacate illegal sentence without upsetting the trial court’s
overall sentencing scheme, it need not remand for resentencing). Thus, we
need not remand this matter to the trial court for resentencing.

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