J-S03023-20



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
    LASEAN RAYMON HARDEN                   :
                                           :
                     Appellant             :   No. 869 WDA 2019

        Appeal from the Judgment of Sentence Entered August 21, 2015
      In the Court of Common Pleas of Somerset County Criminal Division
                       at No(s): CP-56-CR-0000508-2014


BEFORE:      McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*

MEMORANDUM BY McCAFFERY, J.:                      FILED FEBRUARY 06, 2020

        Lasean Raymon Harden (Appellant) appeals from the judgment of

sentence1 entered in the Somerset County Court of Common Pleas, following

the denial of his nunc pro tunc post-sentence motion. Appellant argues the

court abused its discretion when imposing his sentence because the court did

not consider mitigating circumstances. We affirm.

        On April 17, 2015, Appellant pleaded guilty to possession with intent to


*   Retired Senior Judge assigned to the Superior Court.

1 Appellant purported to appeal from the trial court’s May 13, 2019, order
denying his nunc pro tunc post-sentence motion. However, an order denying
a post-sentence motion “acts to finalize the judgment of sentence for purposes
of appeal. Thus, the appeal is taken from the judgment of sentence, not the
order denying post-sentence motions.” Commonwealth v. Chamberlain,
658 A.2d 395, 397 (Pa. Super. 1995). We have amended the caption to reflect
the appeal is taken from the August 21, 2015 judgment of sentence.
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deliver2 (PWID) heroin, an ungraded felony.          On August 21, 2015, the

Honorable Judge John Cascio imposed a sentence of 27 to 60 months’

incarceration, a sentence at the higher end of the standard-range under the

Sentencing Guidelines3.

        The ensuing procedural history of this case was “torturous” and set forth

in a prior memorandum by this Court.         See Commonwealth v. Harden,

1090 WDA 2017 (unpub. memo. at 1-3) (Pa. Super. Feb. 14, 2018). For ease

of discussion, we summarize that on February 14, 2018, this Court affirmed

the judgment of sentence, based on Appellant’s failure to preserve his

discretionary aspect of sentencing issue for appeal by not raising it in his post-

sentence motion and not including a Pa.R.A.P. 2119(f) statement in his brief.

See Pa.R.A.P. 2119(f) (explaining that appellant must set forth in separate

section of brief concise statement of reasons relied upon for allowance of

appeal with respect to discretionary aspects of sentence).

        While Appellant’s appeal was pending before this Court, he filed a pro

se Post Conviction Relief Act4 (PCRA) petition on November 15, 2017. The

trial court held this petition in abeyance pending the outcome of Appellant’s

appeal. Following this Court’s disposition, the court appointed counsel on April

16, 2018 to represent Appellant. Appellant filed an amended PCRA petition


2   35 P.S. § 780-113(a)(30).
3 We note Judge Cascio retired from the bench in December 2016 and this
case was reassigned to the Honorable Judge Gregory Geary.
4   42 Pa.C.S. §§ 9541-9546.


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on May 30, 2018, alleging ineffective assistance of counsel. On March 6, 2019

the trial court granted Appellant’s amended PCRA petition and reinstated

Appellant’s post-sentence motion rights nunc pro tunc.

      On March 15, 2019 Appellant timely filed the instant post-sentence

motion, arguing: (1) his sentence should be mitigated because he has yet to

have meaningful appellate review; (2) the trial court failed to recognize that

trial counsel had informed him that his sentence would be 27 to 40 months;

and (3) his serious health conditions, cooperation with law enforcement, and

acceptance of responsibility as well as new mitigating factors such as his

successful rehabilitation, compliance with parole, and gainful employment

require a mitigation of the sentence imposed. Appellant’s Post-Trial Motion,

3/15/19 at 2-4.

      On May 13, 2019, the trial court denied Appellant’s post-sentence

motion. This timely appeal followed. Appellant complied with the trial court’s

order to file Pa.R.A.P. 1925(b) statement of errors complained of on appeal.

      Appellant presents one issue for our review:

      Whether the trial court erred in not reconsidering the discretionary
      aspects of Appellant’s sentence on post-sentence review?

Appellant’s Brief at 3. Appellant avers that he has yet to have meaningful

appellate review of his sentence. He further contends that his sentence, at

the high end of the standard-range under the Sentencing Guidelines, is

excessive.   Appellant also claims that the trial court failed to consider the

mitigating circumstances presented at sentencing, including his serious health


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conditions,   cooperation   with   law    enforcement,    and   acceptance    of

responsibility for his criminal acts.    Appellant further cites post-sentence

mitigating factors warranting this Court’s review, such as his successful

rehabilitation, parole, full compliance with the terms of his parole, and gainful

employment. Appellant avers he no longer poses a safety concern to society

and is now a productive functioning member of the community.

      Appellant challenges the discretionary aspects of his sentence. Such a

claim is not appealable as of right, but “must be considered a petition for

permission to appeal.” Commonwealth v. Best, 120 A.3d 329, 348 (Pa.

Super. 2015) (citation omitted). Before we reach the merits of a discretionary

sentencing issue, this Court must 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; and (4) whether
      the concise statement raises a substantial question that the
      sentence is appropriate under the sentencing code.

Commonwealth v. Edwards, 71 A.3d 323, 329-30 (Pa. Super. 2013)

(citation omitted).

            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 judges’ 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.”

            As to what constitutes a substantial question, this Court
      does not accept bald assertions of sentencing errors. An appellant
      must articulate the reasons the sentencing courts’ actions violated


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      the sentencing code.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations

omitted). “An allegation that the sentencing court failed to consider certain

mitigating factors generally does not . . . raise a substantial question.” Id. at

171. Accord Commonwealth v. Wellor, 731 A.2d 152, 155 (Pa. Super.

1999) (stating allegation that sentencing court “failed to consider” or “did not

adequately consider” mitigating factors generally does not raise substantial

question).

      Appellant complied with the procedural requirements for this appeal by

filing a timely post-sentence motion and notice of appeal. In his appellate

brief, Appellant includes a statement of reasons relied upon for appeal

pursuant to Pa.R.A.P. 2119(f). See Edwards, 71 A.3d at 329-30; Appellant’s

Brief at 10. However, Appellant’s claim that the trial court did not consider

mitigating factors does not raise a substantial question invoking this Court’s

jurisdiction. See Moury, 992 A.2d at 170.

      Moreover, even if Appellant had properly raised a substantial question,

no relief would be due.

      [T]he proper standard of review when considering whether to
      affirm the sentencing court's determination is an abuse of
      discretion. . . . [A]n abuse of discretion is more than a mere error
      of judgment; thus, a sentencing court will not 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. . . .

Moury, 992 A.2d at 169-70 (citation omitted).



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      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.” Further, where a sentence is within the
      standard range of the guidelines, Pennsylvania law views the
      sentence as appropriate under the Sentencing Code.

Id at 171 (citations omitted).

      “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.”

Id. (citations omitted).

      Here, the trial court explained:

      The reasons for the sentence included the contents of the
      presentence investigation report, that [Appellant] had two prior
      felony drug convictions and two additional felony drug convictions
      that occurred after the instant offense was committed, and the
      offense involved possession of a substantial amount of heroin.
      [N.T. Sentencing Hearing, 8/21/15 at 6-7.] The Court further
      found that [Appellant] presented a continued threat to the
      community, prior rehabilitative measures had proven ineffective,
      and granting [Appellant] a lesser sentence would depreciate the
      seriousness of his offense.

Trial Ct. Op., 10/5/19 at 1.

      We presume that the trial court weighed the information in the PSI

concerning Appellant’s character. See Moury, 992 A.2d at 175. Judge Geary

noted that Judge Cascio considered, but ultimately rejected, Appellant’s

mitigation claims, which included: Appellant’s poor health, cooperation with

law enforcement, and acceptance of responsibility for his actions. Trial Ct.

Op. at 5. Judge Geary explained that he “was loathe to engage in second


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guessing Judge Cascio’s decision, particularly at this late date.”         Id.

Furthermore, while the court noted that it was “unfortunate” that Appellant

had not had meaningful appellate review of his sentence thus far, it found that

this factor does not implicate any sentencing considerations. Id. at 6. As

Judge Geary aptly noted, Appellant’s assertion of new, post-sentence

“mitigating” factors go to his eligibility for parole, and not any retroactive

reduction of his sentence. See id. Accordingly, Appellant is not entitled to

relief.

          Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/6/2020




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