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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JAMES NOVIS,

                            Appellant                No. 2280 MDA 2015


           Appeal from the Judgment of Sentence December 2, 2015
               in the Court of Common Pleas of Luzerne County
              Criminal Division at No.: CP-40-CR-0000950-2015


BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED FEBRUARY 14, 2017

        Appellant, James Novis, appeals from the judgment of sentence

imposed following his open guilty plea to homicide by vehicle while driving

under the influence (DUI), DUI-general impairment, DUI-high rate of

alcohol, and accidents involving death or personal injury while not properly

licensed.1 We affirm.

        We take the following facts from our review of the certified record. In

the early morning hours of May 4, 2013, Officer Charles Musial of the

Lehman Township Police Department was dispatched to the scene of a single

vehicle crash.        Upon arriving, the officer found Appellant, and his
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    75 Pa.C.S.A. §§ 3735(a), 3802(a)(1) and (b), and 3742.1(a), respectively.
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passengers, Cheri Hummel, and Michael Romanoskey, injured on the side of

the road. He detected a strong odor of alcohol on Appellant and Hummel,

who was nonresponsive and died at the scene.                An investigation by the

Pennsylvania State Police determined that Appellant’s vehicle was travelling

at approximately eighty-three miles per hour (MPH) in a fifty MPH zone.

Appellant failed to negotiate a turn, went up an embankment, “vaulted

approximately forty-five (45) feet over a gap, and [landed] directly into

another embankment.” (Trial Court Opinion, 6/27/16, at 2).

       On    November        12,    2015,      Appellant   pleaded   guilty   to   the

aforementioned charges.            On December 2, 2015, after ordering and

receiving the pre-sentence investigation report (PSI), the trial court

sentenced Appellant to an aggregate term of incarceration of not less than

seven nor more than fourteen years.               The court denied Appellant’s post-

sentence motion. Appellant timely appealed.2

       Appellant raises two questions for this Court’s review: “I. Whether the

trial court abused its discretion in sentencing [him; and] II. Whether the trial

court failed to consider [his] remorse and other mitigating circumstances[?]”

(Appellant’s Brief, at 1).



____________________________________________


2
 Appellant filed a court-ordered statement of errors complained of on appeal
on December 30, 2015. See Pa.R.A.P. 1925(b). The court filed an opinion
on June 27, 2016. See Pa.R.A.P. 1925(a).



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         Appellant’s issues challenge the discretionary aspects of his sentence,

which    “must       be    considered     a     petition    for   permission    to    appeal.”

Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011) (citation

omitted).

        Further:

              This Court has held that there is no absolute right to
        appeal when challenging the discretionary aspect of sentencing.
        In order for such an appeal to be valid, an appellant’s brief must
        contain a concise statement of reasons relied upon for allowance
        of appeal with respect to the discretionary aspects of the
        sentence and must also show that there is a substantial question
        that the sentence imposed is not appropriate under the
        Sentencing Code. In order to raise a substantial question, an
        appellant’s Pa.R.A.P. 2119(f) statement must argue the manner
        in which the sentence violates either a specific provision of the
        sentencing scheme set forth in the Sentencing Code or a
        particular fundamental norm underlying the sentencing process.

Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2012), appeal

denied, 63 A.3d 776 (Pa. 2013) (citations omitted).

        In   the    case   before   us,       Appellant’s    one-sentence      Rule   2119(f)

statement merely claims, “Appellant alleges that the trial court abused its

discretion in sentencing Appellant in the aggravated range of the Sentencing

Guidelines.”       (Appellant’s Brief, at 3).      Although, standing alone, this does

not raise a substantial question, a review of Appellant’s brief reveals that he

claims “the trial court abused its discretion in sentencing him in the

aggravated range relying upon issues already factored into the Sentencing

Code[,]” and in failing to consider mitigating factors. (Id., at 7; see id. at




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10).   Appellant raises a substantial question.     See Commonwealth v.

Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003) (en banc).

       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 or misapplied the law,
       exercised its judgment for reasons of partiality, prejudice, bias
       or ill will, or arrived at a manifestly unreasonable decision.

                                  *    *    *

             When imposing a sentence, a court is required to consider
       the particular circumstances of the offense and the character of
       the defendant. In particular, the court should refer to the
       defendant’s    prior  criminal   record,   his    age, personal
       characteristics and his potential for rehabilitation. Where the
       sentencing court had the benefit of a presentence investigation
       report (PSI), we can assume the sentencing court was aware of
       relevant information regarding the defendant’s character and
       weighed those considerations along with mitigating statutory
       factors. . . .

Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa. Super. 2013), appeal

denied, 76 A.3d 538 (Pa. 2013) (citations and quotation marks omitted).

       Additionally:

             It is impermissible for a court to consider factors already
       included within the sentencing guidelines as the sole reason for
       increasing or decreasing a sentence to the aggravated or
       mitigated range.     Trial courts are permitted to use prior
       conviction history and other factors already included in the
       guidelines if, they are used to supplement other extraneous
       sentencing information.




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Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)

(emphasis in original) (citation, quotation marks, and some emphasis

omitted).

     Here, the trial court explains in its opinion that, at the sentencing

hearing:

     . . . [It] noted [Appellant’s] extensive criminal record, the
     attempts at rehabilitation offered through probation, parole and
     the Luzerne County IPP program; all of which were afforded the
     Appellant numerous times in the past[,] noting that the attempts
     failed. The [c]ourt noted that [Appellant] repeatedly committed
     other crimes while he was on prior parole and probation
     sentences. He was rearrested for some while he was under
     conditions and drove while intoxicated multiple times. As the
     court reviewed the criminal history, the court noted that it could
     not find one sentence that [Appellant] previously served that
     was not revoked. Lastly, the court specifically found that the
     Appellant was a danger to society and that he had been afforded
     many opportunities over the past years.

(Trial Ct. Op., at 5).   Our review of the notes of testimony from the

sentencing hearing supports the trial court’s opinion, and demonstrates that

the court did not impermissibly “consider factors already included within the

sentencing guidelines as the sole reason” for sentencing Appellant in the

aggravated range.   Shugars, supra at 1275 (emphasis in original); (see

also N.T. Sentencing, 12/02/15, at 9-14). Moreover, the trial court had the

benefit of a PSI, and, therefore, is presumed to have considered all relevant

mitigating factors. See Griffin, supra at 937. Hence, we conclude that the

trial court did not abuse its discretion in sentencing Appellant in the

aggravated range. See id. Appellant’s claims lack merit.


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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/14/2017




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