J-S18009-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

MIKAEL COLES,

                        Appellant                   No. 2951 EDA 2013


      Appeal from the Judgment of Sentence Entered August 14, 2013
              In the Court of Common Pleas of Lehigh County
           Criminal Division at No(s): CP-39-CR-0003759-2012


BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.

MEMORANDUM BY BENDER, P.J.E.:                        FILED APRIL 30, 2015

      Appellant, Mikael Coles, appeals from the aggregate judgment of

sentence of 13-26 years’ incarceration following his guilty plea to charges of

aggravated assault, robbery, burglary, and conspiracy. Appellant presents a

challenge to the discretionary aspects of his sentence. After careful review,

we affirm.

      The trial court summarized the facts leading to Appellant’s plea as

follows:

            [A]ppellant and his masked confederates entered the
      Herod home through a basement window. They located six (6)
      members of the family and herded them into an upstairs
      bathroom. A seventh family member hid in a closet.

            Prior to forcing Jermaine Herod, one of the family
      members, into the bathroom, they asked him for the location of
      his safe. In doing so, Jermaine Herod was kicked in the head.
      He was then placed in the bathroom, and the Commonwealth
      alleges that [A]ppellant fired six (6) shots through the door
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      striking Jermaine Herod multiple times. [A]ppellant denied that
      he fired the weapon. However, a co-defendant implicated him in
      that act. The victim also believed [A]ppellant was responsible
      for both striking and shooting him. This Court[,] in imposing
      sentence, drew no conclusions regarding the shooter.

            Jermaine Herod's injuries necessitated his hospitalization
      for approximately one (1) month. Bullets are still inside his
      body, and he still experiences pain and discomfort from his
      wounds. A victim impact statement was read by the Chief
      Deputy District Attorney at sentencing.

           The motive behind the home invasion was a concert
      promotion that failed. Specifically, Jermaine Herod introduced
      [A]ppellant to a concert promoter, who was supposed to provide
      musicians. [A]ppellant allegedly provided the promoter with a
      deposit of $6,000, but the musicians failed to appear.

             [A]ppellant, according to Jermaine Herod, was the only
      invader known to him. During the invasion, Jermaine Herod's
      tuition money, approximately $2,100, was stolen with his wallet.
      [A]ppellant indicated that he received $200 from the wallet, and
      the wallet was discarded. He was unsure what happened to the
      firearm, although the co-defendant indicated that [A]ppellant
      discarded a firearm in a river.

Trial Court Opinion, 10/2/14, at 3-4 (footnotes citing to the record omitted).

      On May 6, 2013, pursuant to a plea agreement, Appellant entered a

guilty plea to charges of aggravated assault, 18 Pa.C.S. § 2701(a)(1);

Robbery, 18 Pa.C.S. § 3701(a)(1); Burglary, 18 Pa.C.S. § 3502(a); and

conspiracy, 18 Pa.C.S. § 903.      A presentence report was ordered.       On

August 14, 2013, the trial court sentenced Appellant to 72-144 months’ (6-

12 years’) incarceration for aggravated assault, a consecutive term of 84-

168 months’ (7-14 years’) incarceration for robbery, a concurrent term of

42-84 months’ (3½-7 years’) incarceration for burglary, a concurrent term of




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54-108 months’ (4½-9 years’) incarceration for conspiracy, for an aggregate

sentence of 156-312 months’ (13-26 years’) incarceration.

      Appellant filed a timely motion for reconsideration of his sentence on

August 21, 2013, which was denied by the trial court on September 19,

2013. Appellant then filed a timely notice of appeal on October 18, 2013.

Appellant now presents the following question for our review:

      Whether the court erred by not properly considering or giving
      appropriate weight to the mitigating factors in this case and in
      crafting an unreasonable sentence[?]

Appellant’s Brief, at 6.

      Appellant   asserts   that   the   trial   court   failed   to   give   adequate

consideration to the fact that he “accepted his role in being involved in these

criminal acts and pleaded guilty[,]” and that he “went beyond the mere

resolution of the case by providing to law enforcement information regarding

a Brinks robbery and also expressed a willingness to testify against his co-

defendants in this case.” Id. at 10. Thus, Appellant contends that the trial

failed to consider or otherwise afforded inadequate weight to these

mitigating factors, rendering his sentence an unreasonable exercise of the

court’s discretion.

      Our standard of review of discretionary aspects of sentencing claims is

well-settled:

         Challenges 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:

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        [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 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).

     Here, Appellant filed a timely appeal and preserved his claim in a

timely post-sentence motion. He also provided this Court with a Pa.R.A.P.

2119(f) statement in his brief.    Appellant’s Brief, at 5.   However, the

Commonwealth argues that Appellant fails to present a substantial question

for our review. We agree.

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      In Appellant’s 2119(f) statement, he claims that he is raising a

substantial question because:

      [T]he [trial] court's reasons for the sentence imposed, especially
      the consecutive aspect of one count, do not justify the sentence
      imposed because … [A]ppellant not only pleaded guilty and
      therefore accept[ed] responsibility, but was also willing to and in
      fact cooperated with law enforcement and the crimes were all
      committed in a single criminal episode.

Appellant’s Brief, at 5.

      However, “[a] claim that a sentencing court failed to consider certain

mitigating factors does not raise a substantial question that the sentence is

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

2006). In Lewis, the appellant argued that the trial court failed to consider,

inter alia, “his overall acceptance of responsibility for the injuries caused to

the victim.” Id. The Lewis court held that such a claim did not present a

substantial question for our review.

      Moreover,    this    Court   has   also   held   that   “[t]he   imposition   of

consecutive, rather than concurrent, sentences may raise a substantial

question in only the most extreme circumstances, such as where the

aggregate sentence is unduly harsh, considering the nature of the crimes

and the length of imprisonment.” Moury, 992 A.2d at 171-72. Appellant’s

aggregate sentence of 13-26 years’ incarceration, composed exclusively of

standard range guideline sentences, was imposed for criminal conduct

involving an armed home invasion, one that ultimately resulted in significant

and serious injuries to the victim, Jermaine Herod, who was shot multiple


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times by Appellant or one of his cohorts.      Appellant’s sentence does not

appear on its face to be unduly harsh or extreme in light of these

circumstances.    Accordingly, we conclude that Appellant fails to present a

substantial question for our review. Consequently, he is not entitled to relief

on his discretionary aspects of sentencing claim.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/2015




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