J-S87045-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ANDREW DAVID WESTRY

                            Appellant                 No. 527 MDA 2016


            Appeal from the Judgment of Sentence January 29, 2016
               In the Court of Common Pleas of Lancaster County
    Criminal Division at No(s): CP-36-CR-0000031-2015 CP-36-CR-0000163-
       2015 CP-36-CR-0000165-2015 CP-36-CR-0000170-2015 CP-36-CR-
                                  0000173-2015
               CP-36-CR-0000174-2015 CP-36-CR-0000175-2015
                            CP-36-CR-0000176-2015
                            CP-36-CR-0006037-2014


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

JUDGMENT ORDER BY LAZARUS, J.:                   FILED DECEMBER 13, 2016

        Andrew David Westry appeals from the judgment of sentence entered

in the Court of Common Pleas of Lancaster County.          After our review, we

deny allowance of appeal and affirm.

        Westry entered an open guilty plea to eight counts of robbery, four

counts of theft by unlawful taking, four counts of criminal conspiracy, and

one count each of firearms not to be carried without a license and public

drunkenness.      The charges stemmed from eight gunpoint robberies that

occurred from October 2014 to December 2014.           Following his plea, the
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S87045-16



court sentenced Westry to an aggregate term of imprisonment of twenty-

eight to sixty-four years.       On appeal, Westry challenges the discretionary

aspects of sentencing, arguing that the court failed to consider mitigating

factors and thus misapplied the Sentencing Guidelines.1

       “Sentencing is a matter vested in the sound discretion of the

sentencing judge, and it will not be disturbed on appeal absent a manifest

abuse of discretion.” Commonwealth v. Johnson, 961 A.2d 877, 879 (Pa.

Super. 2008) (citation omitted).          Additionally, for this Court to reach the

merits of a discretionary sentencing issue, an appellant must invoke our

jurisdiction by satisfying the following four-part test:

       (1) whether the appeal is timely; (2) whether [a]ppellant
       preserved his issue; (3) whether [a]ppellant’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. Carrillo-Diaz, 64 A.3d 722, 725 (Pa. Super. 2013)

(citations omitted). See 42 Pa.C.S.A. § 9781(b); Commonwealth v.

Tuladziecki, 522 A.2d 17, 18 (Pa. 1987).



____________________________________________


1
  An appellant may challenge the discretionary aspects of sentence in these
circumstances, so long as there is no plea agreement as to the terms of the
sentence. Commonwealth v. Dalberto, 648 A.2d 16, 21 (Pa. Super.
1994). Westry entered an open plea, N.T. Guilty Plea, 11/5/15, at 4, thus he
is not precluded from raising discretionary aspects of his sentence. See
Commonwealth v. Stewart, 867 A.2d 589 (Pa. Super. 2005).



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       Westry complied with the first three requirements, but failed to raise a

substantial question for our review. Therefore, we do no reach the merits of

his argument.

       In   his   Pa.R.A.P.    2119(f)     statement,   Westry   asserts   that   the

“[s]entencing [c]ourt failed to properly take into consideration mitigating

factors” such as his “lack of prior criminal record and his need for

rehabilitative measures due to clearly demonstrated mental health issues.”

Appellant’s Brief at 10.        An argument that the court failed to consider

mitigating factors does not present a substantial question appropriate for our
                                                                                    2
review. Commonwealth v. McNabb, 819 A.2d 54, 57 (Pa. Super. 2003).

Since Westry has failed to present a substantial question sufficient to

warrant appellate review of his sentencing challenge, we cannot address the

merits of his argument.

       Judgment of sentence affirmed
____________________________________________


2
   The sentencing court considered a presentence investigation report
outlining Westry’s background and prior criminal history, as well as a
forensic psychiatric evaluation and a psychological evaluation. The court
was aware of Westry’s drug and alcohol abuse, that he was a victim of
sexual abuse, and that he suffered from post-traumatic stress disorder. N.T.
Sentencing, 1/29/16, at 4-5. The court acknowledged Westry’s youth (22),
intelligence and potential, and made Westry eligible for every rehabilitative
program available; nonetheless, the court concluded that Westry was not
entitled to a “volume discount” for eight gunpoint robberies. Id. at 6, 16-
23. We note also that at his guilty plea hearing, Westry wished to stand for
sentencing, but the court deferred sentencing in order to obtain as much
information as possible, acknowledging Westry’s prior record score of zero,
and directing a presentencing investigation report be prepared. N.T. Guilty
Plea, 11/5/15, at 4-5, 16.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/2016




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