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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                    v.                   :
                                         :
RYAN NARVELL KELLEY,                     :         No. 1897 WDA 2013
                                         :
                         Appellant       :


          Appeal from the Judgment of Sentence, November 12, 2013
              in the Court of Common Pleas of Allegheny County
               Criminal Division at No. CP-02-CR-0003276-2013


BEFORE: FORD ELLIOTT, P.J.E., WECHT AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED OCTOBER 14, 2014

      Ryan Narvell Kelley appeals from the judgment of sentence entered

November 12, 2013, in the Court of Common Pleas of Allegheny County. We

affirm.

      The facts, as summarized by the Commonwealth at appellant’s guilty

plea hearing, are as follows:

                   If the evidence were presented at trial today it
             would be that on August 5, 2012, [appellant] drove
             his vehicle through a red light at the intersection of
             Tokay and Bennett Streets hitting a motorcycle
             driven by Douglas Watson. He additionally struck
             one more vehicle that was occupied by Jewell Toliver
             and Dolores Smith.         All three parties in the
             aforementioned vehicle[s] suffered serious injuries
             that required hospital care.

                  Additionally, [], [appellant’s license]      was
             suspended at the time of the accident.



* Retired Senior Judge assigned to the Superior Court.
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Notes of testimony, 8/19/13 at 4.

      On April 18, 2013, appellant was charged with three counts of accident

involving injury or death while not properly licensed and recklessly

endangering another person (“REAP”) as well as single counts of driving

without a license; driving while operating privilege suspended/revoked;

traffic control signal; careless driving and reckless driving.   Two counts of

REAP and the reckless driving count were withdrawn by the Commonwealth;

and on August 19, 2013, appellant appeared before the Honorable Donna Jo

McDaniel and entered a plea of guilty to the remaining charges.

      On November 12, 2013, appellant was sentenced to 11½ months to

23 months’ incarceration at Count 1, accidents involving injury or death

while not properly licensed, to be followed by 5 years of probation.         No

further penalty was imposed at the remaining counts.          Appellant filed a

motion to reconsider sentence which was denied on November 27, 2013. On

December 3, 2013, appellant filed a notice of appeal.       Appellant complied

with the trial court’s order to file a concise statement of errors complained of

on appeal pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial

court has filed an opinion.

      Appellant presents one issue for our review:

            I.    DID   THE   TRIAL   COURT  ABUSE   ITS
                  DISCRETION AT SENTENCING BY FAILING TO
                  APPROPRIATELY     CONSIDER   RELEVANT
                  MITIGATING EVIDENCE, INCLUDING THE
                  NATURE AND CIRCUMSTANCES OF THE



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                   OFFENSE   AND    THE     HISTORY          AND
                   CHARACTERISTICS OF MR. KELLEY?

Appellant’s brief at 6.

      “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. McAfee, 849 A.2d 270, 274

(Pa.Super. 2004), appeal denied, 860 A.2d 122 (Pa. 2004).            Prior to

reaching the merits of a discretionary aspect of sentencing issue, we 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 has been

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, see Pa.R.A.P. 2119(f); and (4) whether there is a substantial

question that the sentence is not appropriate under the Sentencing Code,

see 42 Pa.C.S.A. § 9781(b). Commonwealth v. Evans, 909 A.2d 303 (Pa.

2006).

      We note that appellant has filed a timely notice of appeal and has

included in his brief the requisite separate statement of reasons for

allowance of appeal pursuant to Pa.R.A.P., Rule 2119(f), 42 Pa.C.S.A.

(Appellant’s brief at 13-16.)    In his Rule 2119(f) statement, appellant

essentially claims that while the court did consider the protection of the

public and gravity of the offense in relation to the impact on the victims and

community, the court did not consider relevant mitigating evidence, such as,


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appellant took responsibility for his actions by pleading guilty, the charges

were unintentional in nature, he was not under the influence at the time of

the accident, he was both employed and enrolled in school prior to his

incarceration, and that he helped care for and provide for his children.

(Appellant’s brief at 16.)     Appellant has raised a substantial question;

however, we find the issue to be meritless.           See Commonwealth v.

Ahmad, 961 A.2d 884, 887 (Pa.Super. 2008) (finding the appellant’s claim

that the sentencing court abused its discretion by failing to consider his

individualized circumstances in its imposition of sentence in violation of the

Sentencing Code raised a substantial question).

      Our standard of review for sentencing claims is as follows:

            [T]he proper standard of review when considering
            whether       to  affirm    the    sentencing      court’s
            determination is an abuse of discretion. [A]n abuse
            of discretion is more than a mere error of judgment;
            thus, a sentencing court will not have abused its
            discretion unless the record discloses that the
            judgment exercised was manifestly unreasonable, or
            the result of partiality, prejudice, bias, or ill-will. In
            more expansive terms, our Court recently offered:
            An abuse of discretion may not be found merely
            because an appellate court might have reached a
            different conclusion, but requires a result of manifest
            unreasonableness, or partiality, prejudice, bias, or
            ill-will, or such lack of support so as to be clearly
            erroneous.

Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa.Super. 2012)

(quotation omitted).

            In exercising its discretion, the trial court must
            consider the character of the defendant and the


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           particular circumstances of the offense in light of the
           legislative Guidelines for sentencing, and the court
           must impose a sentence that is consistent with the
           protection of the public, the gravity of the offense
           and the rehabilitative needs of the defendant.

Commonwealth v. Guth, 735 A.2d 709, 711 (Pa.Super. 1999), quoting

Commonwealth v. Burkholder, 719 A.2d 346, 350 (Pa.Super. 1998); see

42 Pa.C.S.A. § 9721(b).

     Our review is guided by 42 Pa.C.S.A. § 9781(c) and (d) which provide:

           § 9781. Appellate review of sentence

           (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:



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                  (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.

Id.

      Instantly, appellant argues the trial court did not appropriately address

the nature of the offense at issue or his history and personal characteristics.

We have conducted a review of appellant’s claim along with the information

set forth at the sentencing hearing and conclude that the sentence imposed

was fair and appropriate. The trial court indicated that it considered the pre-

sentence investigation report and the sentencing guidelines.       “Where the

sentencing judge had the benefit of a pre-sentence report, it will be

presumed that he was aware of relevant information regarding appellant’s

character and weighed those considerations along with the mitigating

statutory factors.”     Commonwealth v. L.N., 787 A.2d 1064, 1071

(Pa.Super. 2001).

      The sentencing transcript indicates the trial court heard defense

counsel’s argument that “[Appellant] is a full-time student.      He also has

primary custody of two younger sons.” (Notes of testimony, 11/12/13 at 2.)


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Defense counsel also stated that her review of appellant’s record is that “it is

pretty minimal” and that “he may have had one or two prior criminal

convictions.” (Id.) The trial court then stated:

            Okay, Mr. Kelley, you caused an accident by
            speeding and running through a red light.       The
            motorcycle passenger was critically injured, as was
            one of the victims in the pole line. You have been
            suspended since 2004.        You have two prior
            accidents. You actually have four prior convictions
            for assault.

            When this case happened, you were still on
            probation with me. So, you didn’t do well when you
            were on probation. You just keep driving around,
            and now you have injured people.

            You have been in jail before, and you weren’t
            deterred from continuing criminal activity.

Id. at 3.

      The above statement demonstrates the trial court considered the

seriousness of the offense as appellant’s action resulted in a critical injury to

two victims. The court noted the required factors regarding the protection of

the public and rehabilitative needs of appellant.

      Appellant offers no support from the record that the trial court did not

consider relevant mitigating factors.    It appears from this record that the

trial court was well aware of appellant’s history and characteristics but did

not view them as significantly, perhaps, as appellant would have liked. We

find appellant’s argument in his brief, that he took responsibility for his

actions by pleading guilty and that he was not under the influence at the



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time of his accident, to be rather hollow.           Appellant ignores the fact he

should not have been driving in the first place as his license was suspended.

       Moreover, we note appellant was sentenced for a third degree felony

that was punishable by up to 7 years’ imprisonment.                According to the

sentencing guidelines, the standard range calls for 9 to 16 months’

imprisonment. Appellant received a sentence of 11½ to 23 months with no

further sentence imposed at the remaining counts.

       In   sum,   because   the   trial   court’s    sentencing   colloquy   shows

consideration of [appellant’s] circumstances, prior criminal record, personal

characteristics and rehabilitative potential, and the record indicates that the

court had the benefit of the presentence report, an adequate statement of

the reasons for the sentence imposed has been given. Commonwealth v.

Brown, 741 A.2d 726, 735-736 (Pa.Super. 1999) (en banc), appeal

denied, 790 A.2d 1013 (Pa. 2001).             Accordingly, we find no merit to

appellant’s contention that the trial court abused its discretion in sentencing

him.

       The judgment of sentence is affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/14/2014



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