J-S30030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

AARON JADEN WEAVER

                            Appellant                  No. 925 MDA 2016


             Appeal from the Judgment of Sentence April 28, 2016
               In the Court of Common Pleas of Lycoming County
              Criminal Division at No(s): CP-41-CR-0001913-2015


BEFORE: SHOGAN, J., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY RANSOM, J.:                                FILED JULY 18, 2017

       Appellant, Aaron Jaden Weaver, appeals from the judgment of

sentence of two and one-half to six years, imposed April 28, 2016, following

an open guilty plea resulting in his conviction for theft by unlawful taking

and criminal use of a communication facility.1 We affirm.

       This sentence was to run consecutive to any other sentence Appellant

was presently serving.2         Appellant filed a motion for reconsideration of

sentence, arguing the sentence was unduly harsh and excessive, as it was in

the aggravated range of the sentencing guidelines.           The court denied

Appellant’s motion.

____________________________________________


1
  See 18 Pa.C.S. §§ 3921, 7512, respectively.
2
  Appellant was serving a sentence of two and one-half to five years for
robbery. See Sentencing Court Opinion (SCO), 12/15/16, at 1-2.
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       Appellant timely appealed.             The court did not direct compliance with

Pa.R.A.P.   1925(b),      but       instead    issued   a   Pa.R.A.P.   1925(a)   opinion

addressing the discretionary aspects of Appellant’s sentence.

       On appeal, Appellant raises a single question for our review:

       Did the trial court abuse its discretion when imposing a sentence
       of [thirty] to [seventy-two] months, a sentence within the
       aggravated range of the sentencing guidelines, where the
       Appellant’s conduct was less than egregious in that no victims
       were physically harmed, his success in his youth offender
       programming adequately addressed his rehabilitative needs, and
       where the Court referenced a prior criminal proceeding Appellant
       was found “not guilty” of at the sentencing hearing?

Appellant’s Brief at 4.

       Appellant challenges the discretionary aspects of his sentence, a

challenge which does not entitle him to review as of right. Commonwealth

v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011).                   Prior to addressing a

discretionary challenge, this Court engages in a four-part analysis: 1)

whether the appeal is timely; 2) whether Appellant preserved his issue; 3)

whether Appellant’s brief contains a concise statement of the reasons relied

upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f); and 4) whether

that   statement   raises       a     substantial    question   that    the   sentence   is

inappropriate under the sentencing code. See Commonwealth v. Austin,

66 A.3d 798, 808 (Pa. Super. 2013); see also Pa.R.A.P. 2119(f).




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       Appellant timely filed a notice of appeal, preserved one of his claims in

a post-sentence motion, and included in his brief an appropriate Pa.R.A.P.

2119(f) statement.3        We must now determine whether he has raised a

substantial question that the sentence is inappropriate under the sentencing

code and, if so, review the merits.

       A substantial question must be evaluated on a case-by-case basis.

Commonwealth v. Anderson, 830 A.2d 1013, 1018 (Pa. Super. 2003).              A

substantial question exists only where the Appellant advances a colorable

argument that the sentencing judge’s actions were either inconsistent with a

specific provision of the Sentencing Code, or contrary to the fundamental

norms which underlie the sentencing process. Commonwealth v. Sierra,

752 A.2d 910, 913 (Pa. Super. 2000). A claim that a sentence is manifestly

excessive may raise a substantial question if Appellant’s Pa.R.A.P. 2119(f)

statement sufficiently articulates the manner in which the sentence was




____________________________________________


3
   Appellant also contended that the sentencing court acted vindictively in
considering a prior acquittal for purposes of Appellant’s sentence. See
Appellant’s Brief at 8.     Appellant cites in support Commonwealth v.
Robinson, 931 A.2d 15, 20-21 (Pa. Super. 2007). Appellant did not
preserve this claim in his post-sentence motion and, accordingly, has waived
it for purposes of appeal. See Pa.R.A.P. 2119(f). Additionally, we note that
Robinson and its progeny implicate challenges to the sentence following
resentencing. See Robinson, 931 A.2d at 19; see also Commonwealth
v. Tapp, 997 A.2d 1201, 1203 (Pa. Super. 2010). In the instant case,
Appellant was not following the vacation or remand of his original sentence.
Accordingly, Robinson is inapposite.



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inconsistent with the Code or contrary to its norms.             Commonwealth v.

Mouzon, 812 A.2d 617, 627-28 (Pa. 2002).

      In his Pa.R.A.P. 2119(f) statement, Appellant asserts that the court’s

imposition of an aggregate sentence of two and one-half to six years was

clearly    inappropriate    and   excessive    as   to   constitute     too    severe   a

punishment. See Appellant’s Brief at 8.          Appellant contends that Mouzon

establishes a substantial question, as a claim of excessiveness can raise a

substantial question that the sentence is inappropriate. However, we note

that Appellant must still articulate the manner in which the sentence is

inconsistent with the Code or contrary to its norms. Mouzon, 812 A.2d at

627-28.

      Appellant’s Pa.R.A.P. 2119(f) statement does not identify a specific

provision of the Code with which the sentence was inconsistent. Instead, he

appears to argue that the court failed to give appropriate weight to several

mitigating factors, including Appellant’s difficult upbringing, abandonment by

his adoptive parents, and good behavior in confinement.               See Appellant’s

Brief at 7-8.

      A defendant’s contention that the trial court did not adequately

consider    mitigating     circumstances,     without    more,   does    not    raise   a

substantial question.      See Commonwealth v. Ladamus, 896 A.2d 592,

596 (Pa. Super. 2006). Here, Appellant acknowledges that his sentence was

within the guideline range, if within the aggravated range. See Appellant’s

Brief at 6. Further, the record reflects that the court had the benefit of a

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pre-sentence investigation report. See Notes of Testimony (N.T.), 4/28/16,

at 2; see also Commonwealth v. Fullin, 892 A.2d 843, 849–50 (Pa.

Super. 2006) (noting that where the sentencing judge has the benefit of a

pre-sentence report it is presumed he was aware of and weighted relevant

mitigating statutory factors).

      Accordingly, we conclude that Appellant has failed to raise a

substantial question that his sentence was excessive.        Consequently, a

review of the merits of his discretionary challenge is unwarranted.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/18/2017




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