J-S25026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DAVID JAMARR BARKSDALE

                            Appellant                 No. 1603 WDA 2014


         Appeal from the Judgment of Sentence entered August 28, 2014
                   In the Court of Common Pleas of Erie County
                Criminal Division at No: CP-25-CR-0002804-2013


BEFORE: BENDER, P.J.E., STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                                 FILED JULY 28, 2015

         Appellant, David Jamarr Barksdale, appeals from the judgment of

sentence the Court of Common Pleas of Erie County entered August 28,

2014.      On appeal, Appellant challenges the discretionary aspects of his

sentence. Upon review, we affirm.

         The trial court summarized the background of this matter as follows:

         On May 7, 2014, the Appellant appeared before [the trial court]
         and entered a negotiated no contest plea [to statutory sexual
         assault, and corruption of minors]. The charge[s] involved the
         Appellant’s commission of sexual intercourse with the fourteen[-
         ]year[-]old victim. The events took place between June[] 2013
         through July[] 2013 in the City of Erie.

         On August 28, 2014, the Appellant was sentenced . . . to 30 to
         60 months[’] incarceration [on the statutory sexual assault
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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       conviction] and . . . 9 to 24 months[’] incarceration [on the
       corruption of minors conviction] to run consecutively to [the
       statutory sexual conviction]. The aggregate sentence was 39 to
       84 months. . . . [On August 29, 2014, Appellant filed a motion
       for reconsideration of sentence, which the trial court denied on
       September 2, 2014.1]

       Appellant filed a [n]otice of [a]ppeal and a [c]oncise [s]tatement
       of [m]atters [sic] [c]omplained of on [a]ppeal on September 30,
       2014 pursuant to Pa.R.A.P. 1925.

Trial Court Opinion, 11/17/14, at 1 (citations to record omitted) (footnote

omitted).

       On appeal, Appellant argues that the imposition of consecutive

sentences and the trial court’s alleged failure to consider mitigating factors

make his aggregate sentence excessive.2 Appellant is entitled to no relief on

his challenge to the discretionary aspects of his sentence.


____________________________________________


1
  In both his motion for reconsideration and his Rule 1925(b) statement,
Appellant challenged the discretionary aspects of the sentence to the extent
the trial court imposed consecutive sentences.
2
  In his statement of questions involved, Appellant challenges only the trial
court’s failure to consider mitigating factors. See Appellant’s Brief at 4. In
the argument section of the brief, however, Appellant adds another reason
for challenging the sentence, i.e., the trial court abused its discretion in
sentencing Appellant to consecutive sentences. Id. at 10-11. Failure to
include the latter issue in the statement of questions involved is generally
fatal. See Pa.R.A.P. 2116(a) (“[N]o question will be considered unless
stated in statement of questions involved or fairly suggested thereby”);
Commonwealth v. Fremd, 860 A.2d 515, 523-24 (Pa. Super. 2004) (“In
his brief, appellant also argues that the police conduct was so outrageous as
to bar conviction even if entrapment is not found. Appellant failed to raise
this issue in the ‘Statement of Questions Involved’ portion of his appellate
brief and it is, therefore, waived.”). Despite the waiver, we will address the
merits of the contention.



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     We begin by addressing [the] standard of review in sentencing
     matters:

             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. Hoch, 936 A.2d 515, 517–18 (Pa. Super.
     2007) (citation omitted).

     The right to appellate review of the discretionary aspects of a
     sentence is not absolute, and must be considered a petition for
     permission to appeal. See Hoch, 936 A.2d at 518 (citation
     omitted). An appellant must satisfy a four-part test to invoke
     this Court’s jurisdiction when challenging the discretionary
     aspects of a sentence.

             [W]e conduct a four-part analysis to 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. Moury, 992 A.2d 162, 170 (Pa. Super.
     2010) (citations omitted).

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014)

(en banc).

     Here, it is undisputed that Appellant timely filed a notice of appeal,

timely filed a post-sentence motion raising a discretionary issue, and


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included a Pa.R.A.P. 2119(f) statement in his brief.       The only issue is

whether he raised a substantial question for our review.

     Whether a particular challenge to a sentence amounts to a
     substantial question is determined on a case-by-case
     basis. See Commonwealth v. Coulverson, 34 A.3d 135,
     142 (Pa. Super. 2011) (citation omitted). “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.”
     Commonwealth v. Glass, 50 A.3d 720, 727 (Pa. Super.
     2012) (citations and internal quotation marks omitted).

Buterbaugh, 91 A.3d at 1266.

     Appellant argues the trial court abused its discretion in sentencing

Appellant to consecutive as opposed to concurrent sentences. Generally, a

challenge to the imposition of consecutive rather than concurrent sentences

does not present a substantial question regarding the discretionary aspects

of sentence. See, e.g., Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa.

Super. 2014); Commonwealth v. Austin, 66 A3d 798, 808 (Pa. Super.

2013). However,

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

Zirkle, 107 A.3d at 133-34 (quoting Commonwealth v. Mastromarino, 2

A.3d 581, 588 (Pa. Super. 2010)).


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      Here, the trial court sentenced Appellant to an aggregate sentence of

39 to 84 months’ imprisonment in connection with his no contest plea to

statutory sexual assault and corruptions of minors.      Appellant had sexual

intercourse with a fourteen-year-old victim.      At the time of the crimes,

Appellant was thirty-five years old.     We do not find this sentence to be

extreme under the circumstances.        Appellant, therefore, failed to raise a

substantial question for our review.

      Similarly, Appellant fails to raise a substantial question for our review

regarding the alleged trial court’s failure to consider mitigating factors.

“[T]his Court has held on numerous occasions that a claim of inadequate

consideration of mitigating factors does not raise a substantial question for

our review.” Commonwealth v. Matroni, 923 A.2d 444, 455 (Pa. Super.

2007). Moreover, the record belies the argument. A review of the record

reveals that the trial court reviewed, inter alia, the presentence investigation

report.   N.T. Sentencing, 8/28/14, at 22.         “Our Supreme Court has

determined that where the trial court is informed by a pre-sentence report,

it is presumed that the court is aware of all appropriate sentencing factors

and considerations, and that where the court has been so informed, its

discretion should not be disturbed.” Commonwealth v. Ventura, 975 A.2d

1128, 1145 (Pa. Super. 2009) (citing Commonwealth v. Devers, 546 A.2d

12, 18–19 (Pa. 1988)).




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     Even if we were to assume Appellant raised a substantial question for

our review, we would conclude no relief is due.

     In relevant part, Section 9781 of the Sentencing Code provides:

     (c) Determination on appeal.--The appellate court shall
     vacate the sentence and remand the case to the sentencing
     court with instructions if it finds:

     (1) the sentencing court purported to sentence within the
     sentencing guidelines but applied the guidelines erroneously;

     (2) the sentencing court sentenced within the sentencing
     guidelines but the case involves circumstances where the
     application of the guidelines would be clearly unreasonable; or

     (3) the sentencing court sentenced outside the sentencing
     guidelines and the sentence is unreasonable.

     In all other cases the appellate court shall affirm the sentence
     imposed by the sentencing court.

     (d) Review of record.--In reviewing the record the appellate
     court shall have regard for:

     (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 presentence investigation.

     (3) The findings upon which the sentence was based.

     (4) The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(c), (d).

     Here, Appellant acknowledges the sentence was within the guidelines.

Appellant’s Brief at 10. Thus, the question is whether the sentence, under

the circumstance, was clearly unreasonable.


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      In determining whether a particular sentence is ‘clearly
      unreasonable’ or ‘unreasonable,’ the appellate court must
      consider the defendant’s background and characteristics as well
      as the particular circumstances of the offense involved, the trial
      court’s opportunity to observe the defendant, the presentence
      investigation report, if any, the Sentencing Guidelines as
      promulgated by the Sentencing Commission, and the ‘findings'
      upon which the trial court based its sentence.

Coulverson, 34 A.3d at 147.

      Here, upon review of the record before us, and in particular the

applicable sentencing guidelines, the findings upon which the trial court

based the sentence, see N.T. Sentencing, 8/28/14, at 22-27, and the

circumstances of the offense, id.; see also N.T. Plea, 5/7/14, at 9-11, we

would conclude the sentence is not clearly unreasonable. Thus, even if we

had reached the merits of the issue, we would have found the trial court did

not abuse its discretion in fashioning Appellant’s sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/28/2015




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