J-A31033-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                    v.

NATHAN DANIEL STEIMLING

                          Appellant                  No. 636 MDA 2014


     Appeal from the Judgment of Sentence entered January 15, 2014
       In the Court of Common Pleas of Columbia/Montour Counties
    Columbia County Criminal Division at No: CP-19-CR-0000820-2012


BEFORE: BOWES, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                      FILED FEBRUARY 24, 2015

      Appellant, Nathan Daniel Steimling, appeals from the judgment of

sentence the Court of Common Pleas of Columbia/Montour Counties entered

January 15, 2014.        On appeal, Appellant raises two sentencing issues.

Specifically, Appellant argues the trial court failed to account for mitigating

factors and did not credit time served.    For the reasons stated below, we

affirm.

      The trial court summarized the relevant factual and procedural

background as follows:

      [Appellant] was charged with a number of offenses arising out of
      the drug-related death of Trichelle Grove on July 20, 2012, in
      Columbia County. As a result of plea agreement, he entered
      pleas of guilty to the charges of [p]ossession with [i]ntent to
      [d]eliver . . . , an ungraded felony, and [i]nvoluntary
      [m]anslaughter . . . , a misdemeanor of the first degree. The
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      plea agreement specifically provided for a “sentence to be in the
      standard range of sentencing guidelines”.

      [Appellant] was sentenced on the charge of [p]ossession with
      [i]ntent to [d]eliver to a period of incarceration of not less than
      27 months nor more than 54 to be consecutive to a sentence he
      was presently serving imposed by the Court of Common Pleas of
      Snyder County.         He was sentenced on the charge of
      [i]nvoluntary [m]anslaughter to a period of incarceration of not
      less than 27 months nor more than 54 months to be consecutive
      to the sentence imposed on the [p]ossession

      Both sentences were within the standard range guidelines.

      When imposing the sentences, the court relied on a pre-sentence
      investigation [report] and stated the reasons for sentence on the
      record. Nothing more need be said.

Trial Court Opinion, 5/5/14, at 1-2 (footnote omitted).

      The   trial   court   denied   Appellant’s   post-sentence   motion   for

reconsideration of sentence. This appeal followed.

      On appeal, Appellant raises the following claims:

      A.    Whether the trial court erred in its sentence by failing to
      consider mitigating factors and sentencing [Appellant] to the
      high end of the standard range.

      B.    Whether the trial court erred in denying the Appellant’s
      credit time.

Appellant’s Brief at 6.

      In his first contention, Appellant argues the trial court abused its

discretion in fashioning his sentence because it failed to acknowledge or

consider, inter alia, Appellant’s: (1) sincere and genuine remorse; (2) ability

to appreciate wrongfulness of conduct; (3) low likelihood of re-offending; (4)

lack of prior violent criminal history; (5) involvement in programs—


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presumably while incarcerated; and (6) involvement in peer education along

with obtaining his GED and attending college classes since the accident.

     It is well-settled that

     [c]hallenges to the discretionary aspects of sentencing do not entitle
     an appellant to review as of right. Commonwealth v. Sierra, 752
     A.2d 910, 912 (Pa. Super. 2000). An appellant challenging the
     discretionary aspects of his sentence must invoke this Court’s
     jurisdiction by satisfying a four-part test:

           [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).

     Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
     2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006)
     (internal citations omitted).   Objections to the discretionary
     aspects of a sentence are generally waived if they are not raised
     at the sentencing hearing or in a motion to modify the sentence
     imposed. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.
     Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

     The determination of what constitutes a substantial question
     must be evaluated on a case-by-case basis. Commonwealth v.
     Paul, 925 A.2d 825, 828 (Pa. Super. 2007). 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.” Sierra, supra at 912-13.

     As to what constitutes a substantial question, this Court does not
     accept bald assertions of sentencing errors. Commonwealth v.
     Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006).               An

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      appellant must articulate the reasons the sentencing court’s
      actions violated the sentencing code. Id.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).

      Assuming, but not deciding, all other requirements were met,

Appellant fails to raise a substantial question for our review.    It is well-

settled that

      [a]n allegation that the sentencing court failed to consider
      certain mitigating factors generally does not necessarily raise a
      substantial question. Commonwealth v. McNabb, 819 A.2d
      54, 57 (Pa. Super. 2003). Accord Commonwealth v. Wellor,
      731 A.2d 152, 155 (Pa. Super. 1999) (reiterating allegation that
      sentencing court “failed to consider” or “did not adequately
      consider” certain factors generally does not raise substantial
      question).” Compare Commonwealth v. Felmlee, 828 A.2d
      1105, 1107 (Pa. Super. 2003) (en banc) (stating substantial
      question is raised, however, where appellant alleges sentencing
      court imposed sentence in aggravated range without adequately
      considering mitigating circumstances).

      “When imposing a sentence, a court is required to consider the
      particular circumstances of the offense and the character of the
      defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.
      Super. 2002), appeal denied, 582 Pa. 671, 868 A.2d 1198
      (2005), cert. denied, 545 U.S. 1148, 125 S.Ct. 2984, 162
      L.Ed.2d 902 (2005). “In particular, the court should refer to the
      defendant’s     prior  criminal   record,   his    age,   personal
      characteristics and his potential for rehabilitation.” Id. Where
      the sentencing court had the benefit of a presentence
      investigation report (“PSI”), 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.” Commonwealth v. Devers, 519
      Pa. 88, 101-02, 546 A.2d 12, 18 (1988).                 See also
      Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa. Super.
      2005) (stating if sentencing court has benefit of PSI, law expects
      court was aware of relevant information regarding defendant’s
      character and weighed those considerations along with any
      mitigating factors). Further, where a sentence is within the
      standard range of the guidelines, Pennsylvania law views the


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       sentence as appropriate under the Sentencing Code.         See
       Commonwealth v. Cruz-Centeno, 447 Pa. Super. 98, 668
       A.2d 536 (1995), appeal denied, 544 Pa. 653, 676 A.2d 1195
       (1996) (stating combination of PSI and standard range sentence,
       absent more, cannot be considered excessive or unreasonable).

Id. at 171.

       Here, as noted, the trial court sentenced Appellant to the high end of

the standard range of the sentencing guidelines, after reviewing and

considering, among other things, a pre-sentence investigation report,

Appellant’s own testimony, and counsel’s argument. “That the court refused

to weigh the proposed mitigating factors as Appellant wished, absent more,

does not raise a substantial question.” Moury, 992 A.2d at 175. Thus, we

conclude Appellant failed to raise a substantial question for our review.1


____________________________________________


1
  In passing, in the text of the argument section, Appellant also argues the
trial court “failed to state adequate reasons for imposing and sentencing him
to the statutory maximum.” Appellant’s Brief at 14.

Failure to state adequate reasons for imposing the sentence was not raised
as a claim in the questions for our review or fairly suggested in it, and it was
not raised in the motion for reconsideration. As such, the claim is waived.
See, e.g., Commonwealth v. Freeland, --- A.3d ----, 2014 WL 6982658,
*7 (Pa. Super. 2014); Commonwealth v. Bullock, 948 A.2d 818, 826 (Pa.
Super. 2008). At any rate, as noted, the record belies this bald allegation.
The trial court explained its reasons on the record. Upon consideration of
the Appellant’s pre-sentence investigation report, Appellant’s testimony, and
his counsel’s argument, the trial court reasoned that “[a]ny lesser sentence,
in the [c]ourt’s opinion, would depreciate the seriousness of [Appellant]’s
conduct in this matter . . . . In addition, the sentence complies with the plea
agreement, the sentence contemplated by the parties’ plea agreement.”
N.T., 1/15/14, at 21.

(Footnote Continued Next Page)


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      Regarding the second issue, Appellant claims he did not receive any

credit for the time served on this matter.          See Appellant’s Concise

Statement of Matters [sic] Complained of on Appeal, 4/28/14, at 2. A closer

examination reveals Appellant is apparently asking this Court to grant credit

in the instant matter for time served on other matters or time already

credited. To the extent Appellant’s contention involves time served on this

matter, the record before us is devoid of any support for this contention. 2

      Appellant argues that the trial court should have credited him for time

he served on this matter, namely 455 days from July 25, 2012 (date

apparently the Parole Board lodged a detainer while on parole on previous

state sentences) through January 15, 2014 (date of his sentencing on this

matter).

                       _______________________
(Footnote Continued)

Appellant also misapprehended the terms of his sentence. Appellant was
sentenced within the standard range of the sentencing guidelines, not to the
statutory maximum. Thus, Appellant’s argument is misplaced. At any rate,
even if he had been sentenced to the statutory maximum, that alone, does
not raise a substantial question for our review.      Commonwealth v.
Yeomans, 24 A.3d 1044, 1049-50 (Pa. Super. 2011).
2
   We note the Commonwealth attached Appellant’s pre-sentence
investigation report to its brief, as an addition to be part of the original
record (as a supplement). It should be noted that pursuant to Pa.R.Crim.P.
703 a pre-sentence investigation report is “confidential, and not of public
record,” which is available only to the authorities or the individuals listed
therein.    See Pa.R.Crim.P. 703.       Accordingly, the Columbia County
Prothonotary and the Commonwealth should have taken steps and should
act to preserve the confidential nature of the pre-sentence investigation
report by sealing it or taking reasonable steps to prevent unauthorized
access to it.



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     Here the record shows: (1) the sentences imposed run consecutive to

each other and consecutively to any other sentence he was serving at the

time of sentencing on this matter, which included parole violation of state

sentences and a pending sentence by the Snyder County Court of Common

Pleas; (2) Appellant received 12 days credit on the state parole violations

(July 25, 2012 through August 6, 2012); (3) Appellant received 282 days

credit (August 6, 2012 through May 14, 2013) for pre-sentence incarceration

on the Snyder County sentence; (4) the Snyder County Court of Common

Pleas sentenced Appellant on May 14, 2013 to one to three years’

incarceration; and (5) at the time of sentencing on this matter, Appellant

was serving his Snyder County sentence.       Therefore, Appellant received

credit for time served, and Appellant failed to provide any authority for the

proposition he is entitled for time already credited.   To the contrary, this

Court held that “a defendant is not entitled to receive credit against more

than one sentence for the same time served. We have acknowledged that

such ‘double credit’ is prohibited both by the statutory language of [42

Pa.C.S.A. § 9760] and by the principle that a defendant be given credit only

for time spent in custody . . . for a particular offense.” Commonwealth v.

Ellsworth, 97 A.3d 1255, 1257 (Pa. Super. 2014) (internal citations,

quotation marks, and alterations omitted). Except for a broad allegation of

error, Appellant provides no authority or points to anything in the record to




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support his claim. Accordingly, we conclude the time served credit issue is

without merit and the trial court did not err in this regard.3

       Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2015




____________________________________________


3
  It should be noted the trial court did not specifically address this issue
despite the fact Appellant raised it at the time of sentencing and in his
statement of errors.



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