J-S34043-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                                                 :
                v.                               :
                                                 :
                                                 :
    SHAWN C. CLARK                               :
                                                 :
                       Appellant                 :   No. 285 WDA 2019

       Appeal from the Judgment of Sentence Entered December 7, 2018
      In the Court of Common Pleas of Warren County Criminal Division at
                        No(s): CP-62-CR-0000271-2018


BEFORE:      DUBOW, J., McLAUGHLIN, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                                FILED AUGUST 07, 2019

        Appellant, Shawn C. Clark, appeals from the aggregate judgment of

sentence of 32 to 64 months of confinement, which was imposed after he

pleaded guilty to recklessly endangering another person and persons not to

possess, use, etc. firearms.1       We affirm.

        The facts underlying this case are as follows. Appellant pointed a loaded

gun at his father’s head during a domestic dispute, while in the presence of

Appellant’s eight-year old son.        At the time of the incident, Appellant was

prohibited from possessing a loaded firearm, having been previously

involuntarily committed to a mental institution for inpatient care and

treatment. On the count of reckless endangering another person, Appellant

was sentenced, with the deadly weapon used enhancement, to 12-24 months

____________________________________________


1   18 Pa.C.S. §§ 2705 and 6105(c)(4), respectively.


*    Retired Senior Judge assigned to the Superior Court.
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of confinement in a state correctional institution. On the count of persons not

to possess, he was sentenced to 20-40 months of confinement, with sentences

to run consecutively. Following sentencing, on December 17, 2018, Appellant

filed a motion for reconsideration of sentence.         Following oral argument,

Appellant’s motion was denied by order filed on January 25, 2019.             On

February 22, 2019, Appellant filed this timely notice of appeal.2

         Appellant presents the following issue for our review:

         Was the sentence imposed upon [Appellant] unreasonable,
         manifestly excessive and an abuse of discretion?

Appellant’s Brief at 9 (unnecessary capitalization and answer omitted).

       Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right. Commonwealth v. Manivannan, 186 A.3d

472, 489 (Pa. Super. 2018).            An appellant challenging the discretionary

aspects of his sentence must invoke this Court’s jurisdiction by satisfying a

four-part test:

       [W]e conduct a four-part test analysis to determine: (1) whether
       [the] 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 [the] 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.[] § 9781(b).



____________________________________________


2Appellant was ordered to file a statement of errors complained of on appeal
under Pa.R.A.P. 1925(b), and did so on February 25, 2019. The sentencing
court entered its opinion on March 5, 2019.

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Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.), appeal denied,

909 A.2d 303 (Pa. 2006) (internal citations omitted).

      Appellant complied with the first three parts of the test by filing a timely

notice of appeal, a post sentence motion for reconsideration of sentence, and

the inclusion of a Rule 2119(f) statement in his brief. We thus must determine

whether Appellant’s appeal presents a substantial question.

      A claim that the trial court imposed consecutive sentences does not

generally raise a substantial question.       Commonwealth v. Gonzalez-

Dejusus, 994 A.2d 595, 598 (Pa. Super. 2010).              “[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.” Commonwealth v. Lamonda, 52 A.3d 365,

372 (Pa. Super. 2012) (en banc) (emphasis added). Nor does a claim that a

sentence is unreasonable and excessive, without further explanation, raise a

substantial question. See Commonwealth v. Lutes, 793 A.2d 949, 964 (Pa.

Super. 2002) (stating “a bald allegation that a sentence is excessive does not

raise a substantial question”). However, Appellant argues that the sentencing

court focused only on the gravity of the offense, and failed to consider the fact

that the two crimes to which he pleaded guilty stemmed from the same

domestic dispute that took place at the same time and place, and thus

amounted to one criminal act. We conclude, therefore, that Appellant has

presented a substantial question, and will address the merits of the issue.

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See Commonwealth v. Caldwell, 117 A.3d 763, 769-70 (Pa. Super. 2015)

(en banc) (excessive sentence claim, in conjunction with an assertion that the

court failed to consider mitigating factors, raises a substantial question); see

also Commonwealth v. Hicks, 151 A.3d 216, 227 (Pa. Super. 2016) (claim

that sentencing court failed to set forth adequate reasons for the sentence

imposed raises a substantial question).

        Our standard for review for challenges to the discretionary aspects of

sentencing is as follows:

        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. Conte, 198 A.3d 1169, 1176 (Pa. Super. 2018) (citation

omitted).

        Initially, we note that Appellant concedes that the doctrine of merger3

is inapplicable in this case; nevertheless, he asserts that in the interests of

____________________________________________


3   The statute governing merger provides as follows:

        No crimes shall merge for sentencing purposes unless the crimes
        arise from a single criminal act and all of the necessary elements
        of one offense are included in the statutory elements of the other
        offense. Where crimes merge for sentencing purposes, the court
        may sentence the defendant only on the higher graded offense.

42 Pa.C.S. § 9765.

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justice, it is logical and reasonable that since his crimes occurred at the same

time and place, his sentences should therefore be concurrent. However, the

crimes to which Appellant has pleaded guilty clearly do not arise from a single

criminal act; indeed, Appellant counsel acknowledged at the sentencing

hearing that the charges of recklessly endangering another person and person

not to possess were separate and distinct criminal acts, and that the trial court

could elect to sentence Appellant to consecutive sentences for the two crimes.

N.T. at 8.

      Furthermore, Appellant’s assertion that the trial court gave particular

weight to the gravity of the offense, and failed to consider the fact that both

charges stemmed from the same domestic dispute are belied by the testimony

at the December 7, 2018 sentencing hearing. There, the trial court clearly

considered each of the separate criminal acts to which Appellant pleaded

guilty, noting, with regard to the persons not to possess charge, that Appellant

had a previous conviction for firearms not to be carried without a license and

was well aware at the time of the altercation that he was not permitted to

have a weapon. N.T. at 15. The trial court discussed the information contained

within the pre-sentence investigation report, and considered the events

described by the Commonwealth, wherein Appellant’s eight-year old son called

911 and remained on the phone with the police “begging them to hurry up

and get there, giving them a play-by-play of what [was] going on while

[Appellant] and [Appellant’s father] argued and had the altercation in the front


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yard and in the house.” N.T. at 11. In its 1925(a) opinion, the trial court

noted that the consecutive sentences were both within the standard range,

and voiced its concern that Appellant’s reckless behavior will affect both his

father and his eight-year old son long after Appellant has served his

sentences. Trial Court Opinion at 3. We do not agree that the trial court

focused unduly on the gravity of the offense, and note that the weighing of

sentencing factors is exclusively reserved to the judge imposing the sentence,

and an appellate court may not substitute its own weighing of the factors.

Commonwealth v. Bricker, 41 A.3d 872, 876 (Pa. Super. 2012).

Accordingly, Appellant has not demonstrated that the sentencing court

misapplied or ignored the law, exercised its judgment impartially or with

prejudice, bias or ill will, or that the sentence imposed was manifestly

unreasonable. Conte, 198 A.3d at 1176. Based on the foregoing, Appellant

is not entitled to relief.

      Judgment of sentence affirmed.

      Judge McLaughlin joins the Memorandum.

      Judge Dubow Concurs in the Result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



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Date: 8/7/2019




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