J-S77008-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    NATE MITCHELL                              :
                                               :
                       Appellant               :   No. 3237 EDA 2017

            Appeal from the Judgment of Sentence August 16, 2017
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0001577-2016,
              CP-51-CR-0002317-2016, CP-51-CR-0005208-2015


BEFORE:      OTT, J., DUBOW, J., and STRASSBURGER, J.

MEMORANDUM BY OTT, J.:                              FILED DECEMBER 31, 2018

        Nate Mitchell appeals from the judgment of sentence imposed on August

16, 2017, at CP-51-CR-0001577-2016, CP-51-CR-0002317-2016, CP-51-CR-

0005208-2015. 1 The trial judge sentenced Mitchell to an aggregate sentence


____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1 It is important to point out that counsel filed a notice of appeal and listed
four docket numbers: CR-XX-XXXXXXX-2009, CP-51-CR-0001577-2016, CP-
51-CR-0002317-2016, CP-51-CR-0005208-2015. This Court issued a Rule to
Show Cause as to why the appeal should not be quashed, as to CR-51-
0006869-2009, as untimely filed on October 2, 2017, from the judgment of
sentence imposed on August 16, 2017. See Pa.R.Crim.P. 708(E) (“The filing
of a motion to modify sentence will not toll the 30-day appeal period”); see
also Commonwealth v. Coleman, 721 A.2d 798 (Pa. Super. 1998) (a notice
of appeal from a sentence imposed at a revocation hearing must be filed within
30 days from the date of sentencing).
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of imprisonment of 29 to 58 years, after Mitchell entered an open guilty plea

to firearm charges at CP-51-CR-0005208-2015, rape and related offenses at

CP-51-CR-0001577-2016, rape and related offenses at CP-51-CR-0002317-

2016, and the trial court found Mitchell in violation of his probation at CP-51-

CR-0006869-2009, regarding a prior conviction for aggravated assault. Based

upon the following, we affirm.

       The trial court has summarized the procedural background of this case,

as follows:

       With respect to CP-51-CR-0006869-2009, on June 16, 2009, Nate
       Mitchell, Defendant, pled guilty before this Court to Aggravated
       Assault (18 Pa.C.S.A. § 2702(a)), and was sentenced to four (4)
       years of probation. Following a Violation of Probation (“VOP”)
       hearing on December 11, 2013, this Court revoked [Mitchell’s]
       probation and imposed a sentence of six (6) to twenty three (23)
       months of confinement, followed by five (5) years of probation.

       On May 5, 2015, while on this Court’s probation, [Mitchell] was
       arrested for Violations of the Uniform Firearms Act (“VUFA”)
       offenses. On September 30, 2015, [Mitchell] pled guilty to
       Possession of a Firearm Prohibited, Firearms Not to Be Carried
       Without a License, and Carrying a Firearm on the Public Streets of
       Philadelphia. Sentencing on these cases was deferred pending
       resolution of [Mitchell’s] other open cases, which are discussed
       below.

       At the time of [Mitchell’s] arrest in May 2015, DNA samples were
       taken which, on May 28, 2015, proved to be a match for two open
       rape cases in Philadelphia. Both of the rapes occurred in 2008.
       The first took place on September 12, 2008. The victim was
       waiting for a friend in a parking lot when [Mitchell] attacked her
____________________________________________


Mitchell did not file a response. The appeal as to CR-XX-XXXXXXX-2009 has
been quashed as untimely filed. The appeal is still active as to the remaining
docket numbers (CP-51-CR-0001577-2016, CP-51-CR-0002317-2016, CP-
51-CR-0005208-2015).

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     and raped her orally [and] vaginally. N.T. 5/3/2017 at 5, 7. During
     the attack, [Mitchell] told the victim that he would “really hurt”
     her if she did not stop crying. Id. at 6. He also told her “now you
     can tell your boyfriend you have AIDS.” Id. at 6. The victim went
     to the hospital for treatment for her injuries, at which time a
     sexual assault evidence kit was obtained and a specimen was
     retrieved and analyzed for DNA and submitted to the Combined
     DNA Indexing System (“CODIS”). Id. On May 28, 2015, DNA
     analysis confirmed that the DNA from the evidence kit came from
     [Mitchell].

     The second rape occurred on October 10, 2008. The victim in that
     case was working as a prostitute when [Mitchell] approached her
     and asked for oral sex. N.T. 5/3/2017 at 6. [Mitchell] told the
     victim they could go to his sister’s house nearby. [Mitchell] then
     led the victim to a vacant lot, grabbed her by the throat, and
     strangled her. N.T. 8/16/2017 at 11. [Mitchell] raped the victim
     orally, vaginally, and anally. At one point he wiped himself off with
     the victim’s bra and then raped her again. N.T. 5/3/2017 at 7. He
     told her he would kill her if she did not do as she was told. Id. 6-
     7. The victim waited briefly after the attack before running and
     screaming for help. Police [] recovered the victim’s bra and jeans.
     A specimen was retrieved from the clothing, analyzed for DNA,
     and submitted to CODIS. On May 28, 2015, DNA analysis
     confirmed that the DNA found on the victim’s clothing came from
     [Mitchell].

     On May 3, 2017, [Mitchell] pled guilty before this Court to two (2)
     counts of Rape (18 Pa.C.S.A. § 3121(a)(1)), two (2) counts of
     Involuntary Deviate Sexual Intercourse (“IDSI”) (18 Pa.C.S.A. §
     3123(a)(1)), two (2) counts of Unlawful Restraint (18 Pa.C.S.A. §
     2902(a)(1)), and one (1) count of Aggravated Assault (18 Pa.
     C.S.A. § 2702(a)). On August 16, 2017, following a hearing, this
     Court sentenced [Mitchell] as follows. On docket CP-51-CR-
     0001577-2016, this Court sentenced [Mitchell] to ten (10) to
     twenty (20) years of confinement for Rape, ten (10) to twenty
     (20) years of confinement for Aggravated Assault, ten (10) to
     twenty (20) years of confinement for IDSI, and no further
     penalties for Unlawful Restraint, to run concurrent to one another
     and consecutive to the sentences imposed on all other dockets.
     On docket CP-51-CR-0002317-2016, this Court sentenced
     [Mitchell] to ten (10) to twenty (20) years of confinement for
     Rape, ten (10) to twenty (20) years of confinement for IDSI, and
     no further penalties for Unlawful Restraint, to run concurrent to

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       one another and consecutive to the sentences imposed on all
       other dockets. On docket CP-51-CR-0005208-2015, this Court
       sentenced [Mitchell] to five (5) to ten (10) years of confinement
       for Possession of a Firearm Prohibited, three and one-half (3 1/2)
       to seven (7) years of confinement for Firearms Not to be Carried
       Without a License, and two and one-half (2 1/2) to five (5) years
       of confinement for Carrying a Firearm on the Public Streets of
       Philadelphia, to run concurrent to one another and consecutive to
       the sentences imposed on all other dockets. This Court also found
       [Mitchell] to be in violation of [his] probation on CP-51-CR-
       0006869-2009, and revoked probation and imposed a VOP
       sentence of four (4) to eight (8) years of confinement for
       Aggravated Assault, to run consecutive to all other sentences
       imposed. In total, this Court issued an aggregate sentence of
       twenty nine (29) to fifty eight (58) years of confinement.

       [Mitchell] filed a Motion for Reconsideration of Sentence on August
       28, 2017. This Court denied [Mitchell’s] motion on September 6,
       2017. [Mitchell] then filed a Notice of Appeal to the Superior Court
       of Pennsylvania on October 2, 2017. On October 18, 2017, this
       Court issued an order pursuant to Pa.R.A.P. 1925(b) requiring
       [Mitchell] to file a Concise Statement of Matters Complained of on
       Appeal within twenty one days. [Mitchell] asked for additional time
       to submit a Concise Statement, as not all notes of testimony were
       available. This Court granted that request on November 15, 2017,
       and [Mitchell] submitted a Concise Statement on December 5,
       2017.

Trial Court Opinion, 1/24/2018, at 1-4.

       The two issues raised in this appeal are challenges to the discretionary

aspects of the sentence.2 As already noted, only the sentences imposed at

CP-51-CR-0001577-2016,           CP-51-CR-0002317-2016,     CP-51-CR-0005208-

2015 are at issue. Specifically, Mitchell raises the following questions:

       (1)    Did the lower court err when sentencing [Mitchell] to a
              combined twenty-nine to fifty-eight years’ imprisonment,
____________________________________________


2Mitchell timely complied with the order of the trial court to file a Pa.R.A.P.
1925(b) statement of errors complained of on appeal.

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              where the guidelines called for a sentence of forty-eight to
              sixty-six months per offense, and where the court did not
              address any mitigating factors, including: accepting
              responsibility, pleading guilty and thus saving the
              Commonwealth the expense of a lengthy trial, and sparing
              the victims from having to re-live the crime?

       (2)    Did the lower court err in issuing consecutive sentences
              instead of concurrent sentences without providing adequate
              reason for doing so?
Mitchell’s Brief at 2.3

       “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa.

Super. 2007). (citations and quotation marks omitted). To reach the merits

of a discretionary issue, this Court must determine:

       (1) whether appellant has filed a timely notice of appeal; (2)
       whether the issue was properly preserved at sentencing or in a
       motion to reconsider and modify sentence; (3) whether
       appellant's brief has a fatal defect; and (4) whether there is a
       substantial question that the sentence appealed from is not
       appropriate under the Sentencing Code.

Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011)

(footnotes omitted).

       Here, Mitchell filed a timely notice of appeal. In addition, this Court

granted Mitchell permission to file a supplemental filing, and Mitchell has filed

a supplemental brief, consisting of the requisite statement pursuant to


____________________________________________


3Mitchell’s brief states that Mitchell is currently 30 years old. See Mitchell’s
Brief at 8.

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Pa.R.A.P. 2119(f). See Mitchell’s Supplemental Brief, filed 11/21/2018.

Moreover, counsel for Mitchell preserved the claims by raising them in a post-

sentence motion. Therefore, we may proceed to determine whether Mitchell

has presented a substantial question that the sentence appealed from is not

appropriate under the Sentencing Code. Commonwealth v. Edwards, 71

A.3d 323, 330 (Pa. Super. 2013).

     With respect to whether an issue presents a substantial question, we

are guided by the following:

         The determination of what constitutes a substantial
         question must be evaluated on a case-by-case basis. See
         Commonwealth v. Paul, 2007 PA Super 134, 925 A.2d
         825 (Pa. Super. 2007). “A substantial question exits 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.” Commonwealth v. Griffin, 2013 PA
         Super 70, 65 A.3d 932, 2013 WL 1313089, *2 (Pa. Super.
         filed 4/2/13) (quotation and quotation marks omitted).

Edwards, 71 A.3d at 330 (citation omitted). Moreover,

           [w]e have stated that the imposition of consecutive
           rather than concurrent sentences lies within the sound
           discretion of the sentencing court. Long standing
           precedent of this Court recognizes that 42 Pa.C.S.[] §
           9721 affords the sentencing court discretion to impose
           its sentence concurrently or consecutively to other
           sentences being imposed at the same time or to
           sentences already imposed. A challenge to the
           imposition of consecutive rather than concurrent
           sentences does not present a substantial question
           regarding the discretionary aspects of sentence. ...

         However, we have recognized that a sentence can be so
         manifestly excessive in extreme circumstances that it may

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             create a substantial question. When determining whether
             a substantial question has been raised, we have focused
             upon whether 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, 133-134 (Pa. Super. 2014)

(citations and internal quotation marks omitted).

      In the Rule 2119(f) Statement, Mitchell states the trial court (1) abused

its discretion in sentencing Mitchell to an unduly harsh sentence by imposing

consecutive, not concurrent sentences, and in giving an aggregate sentence

of 29-58 years’ imprisonment, far above the guideline sentences of 4-6 years,

and (2) erred in justifying its sentence by characterizing Mitchell as a violent

threat, despite the Sexual Offenders Assessment Board’s determination that

Mitchell was not sexually violent and not a predator.

      Our review shows the criminal conduct at issue involves three dockets:

one docket involving two firearm violations, and two dockets that each involve

charges of rape, involuntary deviate sexual intercourse, and unlawful

restraint.     There is also an aggravated assault charge at one of the two

dockets.     The rapes were vicious, and during both Mitchell threatened the

victims with more violence if they did not cooperate with him. Furthermore,

when Mitchell committed the firearms offenses, he had a prior aggravated

assault conviction, for which he was on probation. Pursuant to Zirkle, given

the crimes at issue and the circumstances surrounding them, we conclude the

trial court’s decision to run the sentences consecutively does not result in a


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facially excessive sentence.      Consequently, Mitchell’s challenge to the

consecutive sentences does not present a substantial question.

      Moreover, although Mitchell claims the trial court erred in justifying its

sentence by characterizing him as a violent threat despite the Sexual

Offenders Assessment Board’s determination that Mitchell was not a sexually

violent predator, Mitchell has failed to explain what specific provision of the

sentencing code or fundamental norm underlying the sentencing process has

been violated.    In this regard, it is well settled that a claim of inadequate

consideration of mitigating factors does not raise a substantial question for

our review.   Commonwealth v. Bullock, 868 A.2d 516, 529 (Pa. Super.

2005). Therefore, Mitchell has failed to raise a substantial question on this

basis, as well.

      Even if Mitchell had raised a substantial question, no relief would be due.

      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. Griffin, 65 A.3d 932, 937 (Pa. Super. 2013).

      Further, pursuant to statute, upon review, our Court is required to

vacate a sentence and remand with instructions, if the trial court has imposed




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a sentence “outside the sentencing guidelines and the sentence               is

unreasonable.” 42 Pa.C.S. § 9781(c)(3).

     At the time of sentencing, the trial judge explained his rationale for the

sentences:

     I made them consecutive because of the reason I said: He’s a
     threat to the public. These are violent crimes. I need to protect
     the public. He rapes two women within a 28-day limit. He tells a
     woman she has AIDS. She has to live with that for seven years
     not knowing whether she's going to die or not. I sent him for
     rehabilitation to try to rehabilitate him and then for punishment
     for the heinous crime he committed on the public in raping
     women. And also for the violence he used in raping the women.

N.T., 8/16/2017, at 18-19.

     In his opinion, the trial judge expounded:

     This Court heard a great deal about the mitigating circumstances
     in this case, and considered all of them when fashioning
     [Mitchell’s] sentence. This Court considered the fact that, once
     apprehended, [Mitchell] chose to plead guilty, accepting
     responsibility and sparing his victims further trauma. [Mitchell]
     has worked to become a better man in prison. [Mitchell]
     apologized to his victims in court. He says that he is now a
     Christian, and that he regularly attends services. He expressed a
     desire to be a productive member of society upon his release, and
     was in fact working at the time of his arrest. He has a daughter,
     and his mother and brother appeared at the sentencing hearing
     to show their support.1 This Court does not doubt that [Mitchell]
     has come a long way since 2008. The fact remains that he has not
     come far enough.

         __________________________________
         1 [Mitchell] argues that this Court “did not address any
         mitigating factors,” however, it is clear from the record that
         this Court was well aware of, and considered, the
         mitigation presented. This Court asked [Mitchell] to speak
         up during his allocution, and made comments indicating it
         understood what [Mitchell] was saying. N.T. 8/16/2017 at
         13. This Court also briefly questioned [Mitchell] and trial

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         counsel as to the presence of [Mitchell’s] family members
         at the sentencing hearing. Id. at 14.
         __________________________________



      This Court cannot accept that violently attacking two women
      within a one month period was, as [Mitchell] suggests, a product
      of his youth. N.T. 8/13/2017 (“Before I was a man, I was a boy.
      I've grown.”). Nor does this Court believe that the Sentencing
      Guidelines take into account circumstances such as this, where
      two violent attacks are committed in such a short period of time,
      and where the attacker goes out of his way to psychologically
      antagonize and terrify at least one of his victims for years to come
      by telling her he has given her AIDS. This Court believes that
      [Mitchell] is remorseful, but notes that he is not so remorseful that
      he turned himself in to police for the rapes he committed. He was
      not remorseful enough to abide by the terms of his probation, or
      to decline to own a firearm he is expressly prohibited from
      possessing. Nothing about [Mitchell’s] conduct prior to his
      incarceration shows that he felt any particular remorse, or that he
      is capable of modifying his behavior when not confined. As such,
      this Court formulated its sentence both so that [Mitchell] may
      continue to rehabilitate himself while incarcerated, and to protect
      the public. Id. at 19. This Court also addressed its reasons for
      imposing consecutive sentences on the record, citing the short
      timeframe in which the rapes were committed, and the extreme
      violence [Mitchell] exhibited during the commission of those
      crimes. Id. at 18-19. ….

Trial Court Opinion, 1/24/2018, at 6-7.

      In light of the record, and applying our standard of review, there would

be no basis upon which to disturb the trial court’s decision to impose an above-

guideline sentence of 29 to 58 years’ imprisonment.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/31/18




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