J-S43037-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                      v.

JERMAINE LAVELL LUCAS

                           Appellant                    No. 148 WDA 2017


           Appeal from the Judgment of Sentence December 6, 2016
                 In the Court of Common Pleas of Erie County
             Criminal Division at No(s): CP-25-CR-0003431-2015

BEFORE: STABILE, SOLANO, and FITZGERALD* JJ.

MEMORANDUM BY FITZGERALD, J.:              FILED: July 20, 2017

        Appellant, Jermaine Lavell Lucas, appeals from the judgment of

sentence imposed following his guilty pleas to two counts of possession with

intent to deliver (“PWID”) a controlled substance,1 and one count of

hindering     apprehension     or   prosecution.2    Appellant    challenges   the

discretionary aspects of his sentence. We affirm.

        The trial court summarized the relevant facts and procedural history of

this case as follows:

              Appellant pled guilty on October 4, 2016 to Possession
           with Intent to Deliver Heroin, Possession with Intent to
           Deliver   Cocaine,   and    Hindering   Apprehension   or
           Prosecution. The remaining counts were nolle prossed.


*
    Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
2
    18 Pa.C.S. § 5105(a)(1).
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            On December 6, 2016, Appellant was sentenced in the
        standard range of the sentencing guidelines on each count.
        He received 24-48 months at [PWID] Count 1, 20-[40]
        months at [PWID] Count 2, and 3-[23½] months [for
        hindering/apprehension]. Confinement was consecutive on
        all three counts and consecutive to the sentence Appellant
        received at his probation revocation hearing at Docket
        Number 444 of 2014.

          The aggregate sentence which results is 47 to [111½3]
        months of incarceration for Docket Number 3431 of 2015.
        Appellant understood when he entered his plea that the
        maximum sentences for his crimes totaled 27 years (324
        months). . . .

           On December 16, 2016, Appellant filed a Motion for
        Reconsideration of Sentence.        Appellant claimed the
        sentencing judge failed to consider mitigating factors such
        as [] Appellant’s family situation, that he was remorseful
        for his conduct and accepted responsibility in his plea of
        guilty. Appellant averred that a sentence at the low-end of
        the standard range was most appropriate in this case. The
        motion was denied by Order dated December 19, 2016.

           Appellant filed a Notice of Appeal [on January 18,
        2017,] and a Concise Statement on February 8, 2017.
        Appellant argued there was not sufficient grounds to
        sentence him at the high end of the standard range and
        that the sentences should have been concurrent instead of
        consecutive. Appellant also argued that the [c]ourt failed
        to adequately consider mitigating factors, including []
        Appellant’s cooperation at arrest and admission of guilt,
        Appellant’s guilty plea, Appellant’s remorse, and five minor
        children. Appellant averred a more appropriate sentence
        would be at the low end of the standard range with each
        count running concurrently.

3
  We note the trial court’s opinion and Appellant’s brief misstate Appellant’s
sentence for count 2 of PWID as 20-46 months’ imprisonment and for
hindering/apprehension as 3-23 months’ imprisonment.            However, the
sentencing order correctly indicates that Appellant’s sentence for count 2 of
PWID and for hindering/apprehension is 20-40 months’ and 3-23½ months’
imprisonment, respectively. See Sentencing Order, 12/6/16.



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Trial Ct. Op., 3/10/17, at 1-2 (citations omitted).

      Appellant raises the following issue for our review:

         Was the sentence in this case manifestly excessive and
         clearly unreasonable, and not individualized as required by
         law, especially in that the sentence did not properly take
         into account the several mitigating factors present?

Appellant’s Brief at 3 (capitalization omitted).

      Appellant challenges the discretionary aspects of his sentence.

Appellant   argues   his   aggregate   sentence    of   47   to   111½   months’

imprisonment is manifestly excessive.        Appellant also contends the trial

court failed to consider mitigating factors, including that he expressed

remorse, took responsibility for his actions, had a high school degree, and

has five children. Appellant concludes this Court should vacate his judgment

of sentence and remand for resentencing. No relief is due.

      This Court has stated that:

         [c]hallenges to the discretionary aspects of sentencing do
         not entitle an appellant to appellate review as of right.
         Prior to reaching the merits of a discretionary sentencing
         issue:

            [W]e 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).



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         Objections to the discretionary aspects of a sentence are
         generally waived if they are not raised at the sentencing
         hearing or raised in a motion to modify the sentence
         imposed at that hearing.


Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa. Super. 2006)

(quotation marks and some citations omitted).

         [T]he Rule 2119(f) statement must specify where the
         sentence falls in relation to the sentencing guidelines and
         what particular provision of the Code is violated (e.g., the
         sentence is outside the guidelines and the court did not
         offer any reasons either on the record or in writing, or
         double-counted factors already considered). Similarly, the
         Rule 2119(f) statement must specify what fundamental
         norm the sentence violates and the manner in which it
         violates that norm . . . .

Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en

banc).

     “Our inquiry must focus on the reasons for which the appeal is

sought, in contrast to the facts underlying the appeal, which are necessary

only to decide the appeal on the merits.”    Id.   A claim that a sentence is

manifestly excessive might raise a substantial question if the appellant’s

Rule 2119(f) statement sufficiently articulates the manner in which the

sentence imposed violates a specific provision of the Sentencing Code or the

norms underlying the sentencing process.      Commonwealth v. Mouzon,

812 A.2d 617, 627 (Pa. 2002). However, “[a] claim that a sentencing court

failed to consider certain mitigating factors does not raise a substantial




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question . . . .” Commonwealth v. Lewis, 911 A.2d 558, 567 (Pa. Super.

2006) (citations omitted).

      Instantly, Appellant timely appealed, preserved his discretionary

aspects of sentencing issue in his motion for reconsideration of sentence,

and included a Pa.R.A.P. 2119(f) statement in his brief.         See Evans, 901

A.2d at 533.      Appellant asserts the trial court imposed a manifestly

excessive sentence.     Generally, such a bald assertion does not raise a

substantial question.    See Mouzon, 812 A.2d at 627.              In any event,

Appellant’s claim is meritless. This Court has stated:

         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. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation

omitted).

      In making a reasonableness determination, a court should consider

four factors: (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 pre-sentence investigation;

(3) the findings upon which the sentence was based; and (4) the guidelines

promulgated by the commission. 42 Pa.C.S. § 9781(d)(1)-(4).



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      A sentence may be found to be unreasonable if it fails to properly

account for these four statutory factors, or if it “was imposed without

express or implicit consideration by the sentencing court of the general

standards applicable to sentencing[.]” Commonwealth v. Walls, 926 A.2d

957, 964 (Pa. 2007). These general standards mandate that a sentencing

court impose a sentence “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.”            42

Pa.C.S. § 9721(b).

      “[W]here the sentencing court imposed a standard-range sentence

with the benefit of a pre-sentence report, we will not consider the sentence

excessive.”    Commonwealth v. Corley, 31 A.3d 293, 298 (Pa. Super.

2011); see also Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super.

2010) (stating “where a sentence is within the standard range of the

guidelines, Pennsylvania law views the sentence as appropriate under the

Sentencing Code” (citation omitted)).    Under such circumstances, “we can

assume the sentencing court was aware of relevant information regarding

the defendant’s character and weighed those considerations along with

mitigating    statutory   factors.”   Corley,   31   A.3d   at   298   (quoting

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)) (quotation marks

omitted).




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      Here, Appellant’s sentence is in the standard range of the Sentencing

Guidelines.      Because the trial court reviewed Appellant’s pre-sentence

investigation report, we assume it took into consideration the mitigating

circumstances raised in Appellant’s brief, such as his high school degree and

five children.    See Corley, 31 A.3d at 298.      Moreover, the trial court

summarized its reasons for Appellant’s sentence as follows:

            I have listened to the evidence presented here today. I
         have read the revocation summary and the [pre-sentence
         investigation report] for both docket numbers 444 of 2014
         and 3431 of 2015.

            I’m also familiar with the facts of the case at 3431,
         since I presided over a pretrial hearing in that case. And I
         do note to your credit, [Appellant], as to Docket 3431,
         you’ve accepted responsibility by way of your plea in that
         case.

            And then I have to balance that. And I do take in
         account your age and the fact you do have a high school
         degree. I’m not sure what kind of parent you’ve been to
         five children at such a young age that you are. When, in
         fact, you spend most of your time in and out of the
         criminal justice system as a juvenile and as an adult.

            As a juvenile you had serious offenses, including
         robbery, conspiracy to commit robbery. There were efforts
         to work with you. You were revoked several times as a
         juvenile.

            You came into the adult system, and you’re given
         benefit by Judge Garhart originally at Docket Number 444,
         and I’m sure he took into account your age and the fact
         this was your first adult offense, but they were serious; it
         involves a firearm that you were carrying without a license
         and a resisting arrest. But he allowed you to stay in the
         community and gave you a sentence in the mitigated
         range of the sentencing guidelines, and that was on April
         29th of 2015.


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           Unfortunately, the offenses at Docket 3431 were
        committed less than six months later, on October 23rd of
        2015, and in the meantime, you had already been called in
        by your probation officer for—to your credit you admitted
        smoking marijuana and services were in place for you, so
        you had services in place. He didn’t detain you, he got
        you services for the use of pot.        So while you were
        supposedly doing that, on October 23, 2015, you’re clearly
        harboring a fugitive who’s wanted for homicide and you’re
        clearly involved in dealing drugs out of this house.

           And there’s a significant quantity of heroin, a significant
        quantity of cocaine found in that house, and that is a
        concern, because it tells me that you have made no
        significant effort to change your lifestyle or your criminal
        thinking. And that if left to your own devices, you would
        continue on those ways and that’s unfortunate, because
        possessing firearms and dealing drugs are a very
        dangerous combination. And they’re a threat to the health
        and safety of other people in this community.

N.T. Sentencing, 12/6/16, at 12-14. We discern no abuse of discretion in

the trial court’s reasoning.   See Sheller, 961 A.2d at 190.        Therefore,

Appellant’s sentence of 47 to 111½ months’ imprisonment was not

manifestly excessive.   See Corley, 31 A.3d at 298; Moury, 992 A.2d at

171. Accordingly, we affirm Appellant’s judgment of sentence.

     Judgment of sentence affirmed.




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J-S43037-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/20/2017




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