J-S58005-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 ELIJAH ESTES PACELY                       :
                                           :
                    Appellant              :   No. 61 WDA 2019

        Appeal from the Judgment of Sentence Entered May 5, 2017
                In the Court of Common Pleas of Erie County
           Criminal Division at No(s): CP-25-CR-0003690-2016


BEFORE: PANELLA, P.J., BENDER, P.J.E., and DUBOW, J.

MEMORANDUM BY PANELLA, P.J.:                     FILED DECEMBER 13, 2019

      Elijah Estes Pacely appeals nunc pro tunc from the judgment of sentence

entered in the Erie County Court of Common Pleas on May 5, 2017. Pacely

contends that the sentencing court failed to give weight to several mitigating

factors and also did not provide a legally sufficient statement in support of its

imposition of a consecutive sentence. As we find Pacely’s first issue does not

raise a substantial question and hold that his second issue lacks merit given

the existence of a pre-sentence report and on-the-record colloquy at

sentencing, we affirm.

      Pacely was charged with various offenses stemming from an armed

robbery and hostage situation occurring at a Family Dollar store in Erie,

Pennsylvania. After his arrest, Pacely entered a negotiated plea wherein he

pleaded guilty to robbery, carrying a firearm without a license, and unlawful
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restraint.1 For these offenses, the court sentenced Pacely to an aggregate

period of 90 to 180 months of incarceration followed by 60 months of

probation. Pacely did not file a post-sentence motion nor did he file a direct

appeal.

       Approximately one year later, Pacely filed a petition pursuant to the Post

Conviction Relief Act (“PCRA”), see 42 Pa.C.S.A. §§ 9541-9546, asserting his

counsel was ineffective for not filing a direct appeal. Eventually, the PCRA

court reinstated his right to file a post-sentence motion nunc pro tunc,

ultimately allowing Pacely to pursue a direct appeal nunc pro tunc.

       After the sentencing court denied his nunc pro tunc post-sentence

motion, Pacely filed the present nunc pro tunc appeal to this Court. The parties

have complied with the dictates of Pa.R.A.P. 1925, and this direct appeal is

now properly before us.

       On appeal, Pacely asserts:

       1) The sentencing court committed legal error and abused its
          discretion in failing to afford due consideration and deference
          to the mitigating factors presented and otherwise discernable
          on behalf of Pacely, given, among other factors, his acceptance
          of responsibility; and

       2) The sentencing court committed legal error and abused its
          discretion in imposing a consecutive sentencing scheme
          without a legally sufficient contemporaneous statement in
          support of its decision.



____________________________________________


1 See 18 Pa.C.S.A. § 3701(a)(1)(ii), 18 Pa.C.S.A. § 6106(a)(1), and 18
Pa.C.S.A. § 2902(a)(1), respectively.

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See Appellant’s Brief, at 2.

      Pacely’s two issues implicate the discretionary aspects of his sentence.

“It is well settled that, with regard to the discretionary aspects of sentencing,

there is no automatic right to appeal.” Commonwealth v. Austin, 66 A.3d

798, 807–08 (Pa. Super. 2013) (citation omitted).

      Before [this Court may] reach the merits of [a challenge to the
      discretionary aspects of a sentence], we must engage in a four
      part analysis to determine: (1) whether the appeal is timely; (2)
      whether Appellant preserved his issue; (3) whether Appellant's
      brief includes a concise statement of the reasons relied upon for
      allowance of appeal with respect to the discretionary aspects of
      sentence [see Pa.R.A.P. 2119(f)]; and (4) whether the concise
      statement raises a substantial question that the sentence is
      appropriate under the [S]entencing [C]ode.... [I]f the appeal
      satisfies each of these four requirements, we will then proceed to
      decide the substantive merits of the case.

Id. (citation omitted).

      Here, Pacely filed a timely notice of appeal and preserved both of his

challenges to the discretionary aspects of his sentence in the sentencing court.

See Motion for Reconsideration and Modification of Sentence Nunc Pro Tunc,

10/15/18, at 2 (unpaginated). Additionally, Pacely has included in his

appellate brief a separate Rule 2119(f) statement. See Appellant’s Brief, at 4.

Therefore, we proceed to determine whether he has presented a substantial

question that his sentence was somehow inappropriate.

      The determination of what constitutes a substantial question must
      be evaluated on a case-by-case basis. A substantial question
      exists 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.

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Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (citations

and internal quotation marks omitted).

        As to his first issue, Pacely, in his Rule 2119(f) statement, maintains

that “the fundamental norm violated was that the sentencing scheme was

compromised in that the sentencing court failed to afford due weight and

consideration to mitigating factors presented by [Pacely].” Appellant’s Brief,

at 4.

        “[T]his Court has held on numerous occasions that a claim of inadequate

consideration of mitigating factors does not raise a substantial question for

our review.” Commonwealth v. Downing, 990 A.2d 788, 794 (Pa. Super.

2010) (citation omitted, brackets in original). Accordingly, as we find no basis

to conclude that Pacely is advancing anything beyond that of an “inadequate

consideration of mitigating factors” argument, his first issue on appeal does

not present a substantial question appropriate for our review.

        However, Pacely’s second issue, where he claims the sentencing court

failed to place its reasons on the record when it imposed consecutive

sentences, does present a substantial question. See Commonwealth v.

Brown, 741 A.2d 726, 735 (Pa. Super. 1999) (“An allegation that the

sentencing court did not adequately set forth its reasons on the record does




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present a substantial question.”) (en banc) (citation omitted).2

       The standard of review in sentencing matters is well settled.
       Imposition of a sentence is vested in the discretion of the
       sentencing court[, whose decision] will not be disturbed absent a
       manifest abuse of discretion. An abuse of discretion is more than
       just an error in judgment.... [O]n appeal, the trial court will not
       be found to 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.

Commonwealth v. Smith, 673 A.2d 893, 895 (Pa. 1996) (citations omitted).

       We afford the sentencing court great weight as it is in the best position

to review not only a defendant’s character, but also displays of remorse,

defiance, or indifference and the overall effect and nature of the crime. See

Commonwealth v. Clever, 576 A.2d 1108, 1110 (Pa. Super. 1990). Where

the court’s sentencing colloquy “shows consideration of the defendant’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. Phillips, 601 A.2d

816, 823-24 (Pa. Super. 1992).

       Our Supreme Court has outlined the standard that governs whether a

sentencing court has properly stated its reasons for imposing a sentence on


____________________________________________


2 We note that a direct challenge to the imposition of consecutive 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. Moury,
992 A.2d 162, 171-172 (Pa. Super. 2010) (citation omitted).

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the record:

      Where pre-sentence reports exist, we shall continue to presume
      that the sentencing judge was aware of relevant information
      regarding the defendant's character and weighed those
      considerations along with mitigating statutory factors. A pre-
      sentence report constitutes the record and speaks for itself....
      Having been fully informed by the pre-sentence report, the
      sentencing court's discretion should not be disturbed.

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). Accordingly, if the

court states on the record that it has consulted a pre-sentence report, this

requirement is met. See id.; see also Commonwealth v. Rhoades, 8 A.3d

912, 919 (Pa. Super. 2010) (affirming that, when the sentencing court has

had the benefit of a pre-sentence investigation report, our Court will assume

it was aware of the relevant information regarding the defendant’s character

and weighed those considerations along with mitigating statutory factors).

      Pacely avers that his sentence is “comprised of consecutive sentences

without a sufficient contemporaneous statement of the factors in support of

sentencing.” Appellant’s Brief, at 6. Pacely continues by suggesting that “the

sentencing court [did not] afford[] due and adequate consideration of the

mitigating factors presented on behalf of [Pacely] at time of sentencing.” Id.

“Moreover, the recitation of factors in support of the imposition of consecutive

sentences was insufficient as a matter of law to satisfy the requisite for a

contemporaneous statement in support of the sentence as contemplated and

mandated under the [S]entencing [C]ode.” Id.




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      Here, the court explicitly stated that it read the pre-sentence report in

its entirety and listened to all of the evidence that was presented, both on

behalf of the Commonwealth and on behalf of Pacely. See Sentencing Hearing,

N.T., 5/5/17, at 12. The court “read the sentencing guidelines” and referenced

the fact that it read a letter from Pacely’s grandmother, wherein it both

described his “good qualities” as well as his drug use. Id. The court found that

Pacely faced many stressors in his life and was “someone who is remorseful

and [accepting of] responsibility.” Id., at 12-14. Undoubtedly, the on-the-

record acknowledgment of those elements implies consideration of the same.

However, the court also indicated that it had “to balance [Pacely’s mitigating

features] with the facts of [his] case, which [were] horrendous” and take into

account his prior criminal history. Id., at 10-11, 14. Considering all of this,

the court imposed a sentence in the standard range of the sentencing

guidelines. See id., at 15.

      Based on this record, the sentencing court did not fail to state, on the

record, adequate reasons for the sentence imposed. See Devers, 546 A.2d

at 19 (rejecting the rule requiring “a meaningful explanation” of facts relied

upon in imposing sentence when the record reveals the court had sufficient

information to impose sentence). Accordingly, we affirm Pacely’s judgment of

sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/2019




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