J-S36009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RICKY MCCLINTON                            :
                                               :
                       Appellant               :   No. 1960 EDA 2017


             Appeal from the Judgment of Sentence, May 24, 2017,
                In the Court of Common Pleas of Lehigh County,
             Criminal Division at No(s): CP-39-CR-0001147-2017,
                           CP-39-CR-0005035-2016.


BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                              FILED JULY 13, 2018

        Ricky McClinton appeals from the judgment of sentence imposed

following his guilty plea to charges of possession with intent to deliver a

controlled substance and resisting arrest.1 He challenges the discretionary

aspect of his sentence. We affirm the judgment of sentence.

        The facts underlying McClinton’s sentence are largely irrelevant as the

challenge is to the sentence itself. On April 27, 2017 McClinton, while on

parole, was charged with and pled guilty to the aforementioned crimes, and

the associated plea deal required the sentences for each charge to not exceed

the standard range within the Sentencing Guidelines. He was sentenced to a

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1
    35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 5104, respectively.
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term of imprisonment between fourteen and thirty-six months on the charge

of possession with intent to deliver, and six to eighteen months on the charge

of resisting arrest. The sentences were ordered to run consecutively. A

Gagnon II hearing for McClinton’s parole violation on an unrelated previous

case was also held on the same date, and he was remanded to a correctional

facility to serve the balance of the six-month sentence previously imposed.

McClinton would be eligible for parole after serving one-third of the balance of

his total sentence. Trial Court Opinion, 8/1/17, at 1-2.

      McClinton challenges the length of the sentence imposed by the trial

court. He claims the sentence is excessive and constitutes an abuse of

discretion. We have long held that there is no absolute right to appeal when

challenging the discretionary aspect of a sentence. Commonwealth v.

Crump, 995 A.3d 1058, 1064 (Pa. Super. 2011). Criminal defendants must

petition for allowance to appeal pursuant to 42 Pa.C.S.A. § 978. As such we

must conduct a four-part analysis before the merits of a discretionary

sentence challenge can be addressed. Commonwealth v. Mourey, 992 A.2d

162, 170 (Pa. Super. 2010). Under this analysis, we must 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 the appellant’s brief contained a 2119(f) statement; and

4) whether there is a substantial question that the sentence appealed from is




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inappropriate under the Sentencing Code. Id; Commonwealth v. Hanson,

856 A.2d 1254 (Pa. Super. 2004).

       McClinton’s appeal was timely2 and his challenge was preserved in a

post-sentence motion. His brief also contained a statement pursuant to

2119(f) challenging the discretionary aspect of his sentence. See McClinton’s

Brief at 11. McClinton has satisfied the first three parts of the analysis, so we

turn to the fourth part to determine whether he has raised a substantial

question.

       Whether a substantial question has been raised regarding discretionary

sentencing is determined on a case-by-case basis. Commonwealth v.

Brown, 741 A.2d 726, 735 (Pa. Super. 1999). A substantial question exists,

and an appeal will be granted, “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.” Id.

       McClinton’s 2119(f) statement reads:

          Mr. McClinton is requesting the review of his sentence based
          upon his belief that the Trial Court abused its discretion
          when it imposed a harsh and excessive punishment contrary
          to the fundamental norms of the Sentencing Guidelines. He
          believes that the Court failed to consider or to adequately
____________________________________________


2
  This appeal was granted although McClinton included both docket numbers
in a single notice of appeal. We will not quash this appeal based on the
violation of this procedure, although each docket number should be
contained in its own notice of appeal. See generally Commonwealth v.
Walker, 2018 WL 2448643 (Pa. June 1, 2018); Pa.R.A.P. 341(a).

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           consider appropriate sentencing factors or mitigating factors
           as required as part of the individualized sentencing process.
           The Court ignored legitimate mitigating factors in
           contravention of its duty and as required pursuant to the
           sentencing code. Commonwealth v. Raven, 2014 Pa.
           Super. 186. 97 A.3d 1244. 1253 (Pa. Super. 2014),
           (additional citations omitted) and, Commonwealth v.
           Swope, 2015 Pa. Super. 196, 123 A.3d 333 (Pa. Super.
           2015.)

      McClinton’s Brief at 11.

      McClinton’s argument advances a claim that mitigating factors were not

considered by the trial judge during his sentencing and, therefore, the trial

judge abused her discretion in imposing the sentence. This Court has

consistently held that a claim of inadequate consideration of mitigating factors

does not raise a substantial question for appellate review. Commonwealth

v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013); Commonwealth v.

Downing, 990 A.2d 788, 794 (Pa. Super. 2010). Accordingly, we conclude

that McClinton’s argument regarding the trial court’s failure to consider

mitigating factors does not raise a substantial question and is not proper for

appellate review.

      Even if a substantial question were raised, McClinton’s underlying

argument is without merit and the trial court’s judgment of sentence would

still be affirmed. Our standard of review of a sentencing challenge is well

settled:
           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

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         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. Booze, 953 A.2d 1263, 1278-79 (Pa. Super. 2008). This

Court gives great weight to the decision of the sentencing judge, as the

sentencing judge is in the most advantageous position to weigh various factors

such as “the nature of the crime and the defendant’s displays of remorse,

defiance, or indifference.” Commonwealth v. Fries, 523 A.2d 1134, 1135

(Pa. Super. 1987). The sentencing court must consider the protection of the

public, the gravity of the offense as it relates to the impact on the life of the

victim and on the community, and the rehabilitative needs of the defendant

when considering an appropriate sentence. 42 Pa.C.S.A. §9721(b). This Court

cannot reweigh sentencing factors and impose its own judgment in the place

of the sentencing court. Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007).

      Here, McClinton’s sentences for both charges are within the sentencing

guidelines, and as such the sentence is presumed reasonable and the burden

is on him to demonstrate that application of the guidelines was clearly

unreasonable. Commonwealth v. Ventura, 975 A.2d 1128, 1134 (Pa.

Super. 2009). McClinton’s claim that the sentencing court failed to properly

consider mitigating factors cannot defeat this presumption, and his argument

falls short of demonstrating that application of the guidelines was clearly

unreasonable. Additionally, Commonwealth v. Devers states that where a

pre-sentence report exists, as it does in the case sub judice, there is a

presumption that the sentencing court was aware of and adequately


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considered the information, including mitigating factors. 546 A.2d 12 (Pa.

1988). McClinton’s sentence was eminently reasonable in light of record. He

was arrested for the charges at hand less than a month after he was placed

on supervision for a previous drug charge. The sentencing court also indicated

that McClinton was disrespectful, “smug,” and unremorseful. N.T., 5/24/17,

at 8. In light of his attitude and the gravity of the charges, McClinton’s

aggregate sentence of 26 to 54 months is reasonable and well within the

sentencing   guidelines.   We   discern   no   manifest   abuse   of   discretion,

misapplication of law, or bias in this case.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/13/2018




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