J-S51021-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ROBERT WILLIAM LYONS

                            Appellant                No. 610 MDA 2014


           Appeal from the Judgment of Sentence January 23, 2014
              In the Court of Common Pleas of Lycoming County
             Criminal Division at No(s): CP-41-CR-0001417-2012


BEFORE: BOWES, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                          FILED FEBRUARY 10, 2015

       Robert William Lyons appeals from the judgment of sentence imposed

on January 23, 2014, in the Court of Common Pleas of Lycoming County

following his guilty plea to two counts of person not to possess firearms.1

Lyons was sentenced to a standard range term of 44 to 88 months’

incarceration, on each count, and those sentences were made to run

concurrently.     However, the instant sentence was ordered to be served

consecutive to the six to 12 year sentence imposed on Lyons for other

aspects of the same criminal episode.2         In this timely appeal, Lyons
____________________________________________


1
  18 Pa.C.S. § 6105(a)(1). The two counts were apparently based upon
possession of a rifle and a shotgun during the encounter with the State
Police.
2
  All of the charges presented at the trial and guilty plea hearing arose from
the same criminal episode in which Lyons was involved in a 90 minute
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challenges the discretionary aspects of his sentence, claiming the aggregate

sentence is manifestly excessive and the trial court failed to give proper

consideration to certain mitigating factors. It is important to note that Lyons

is only challenging his sentence being made consecutive to the 6-12 year

sentence that had been previously imposed. Following a thorough review of

Lyons’ brief,3 the certified record, and relevant law, we affirm.

        Initially,

        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.

Commonwealth v. Zirkle, ___ A.3d ___, *3 (Pa. Super. 2014) (citation

omitted).

        We have stated that the imposition of consecutive rather than
        concurrent sentences lies within the sound discretion of the
        sentencing court. Commonwealth v. Lloyd, 878 A.2d 867, 873
        (Pa. Super. 2005) (citing Commonwealth v. Hoag, 665 A.2d
                       _______________________
(Footnote Continued)

armed standoff with Pennsylvania State Troopers following a report of a
domestic disturbance at Lyons’ residence. In the jury trial, Lyons was
convicted of three counts of aggravated assault by physical menace. Lyons
appealed that but obtained no relief. See, Commonwealth v. Lyons, ___
A.3d ___, [2014 Pa. Super. LEXIS 2791] (Pa. Super. May 23, 2014)
(unpublished memorandum). Lyons then pled guilty to the firearm charges
at issue herein and which had been severed from the other charges.
3
    Pursuant to Pa.R.A.P. 1116, the Commonwealth opted not to file a brief.



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      1212, 1214 (Pa. Super. 1995)). Long standing precedent of this
      Court recognizes that 42 Pa.C.S.A. § 9271 affords the sentencing
      court discretion to impose its sentence concurrently or
      consecutively to other sentences being imposed at the same
      time or to sentences already imposed. Commonwealth v.
      Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (citing
      Commonwealth v. Graham, 661 A.2d 1367, 1373 (Pa. 1995)).

Id. at *5.

      However, a challenge to the discretionary aspects of a sentence is not

appealable of right.

      Before we reach the merits of this [issue], 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; and (4) whether the concise
      statement raises a substantial question that the sentence is
      appropriate under the sentencing code. The third and fourth of
      these requirements arise because Appellant's attack on his
      sentence is not an appeal as of right. Rather, he must petition
      this Court, in his concise statement of reasons, to grant
      consideration of his appeal on the grounds that there is a
      substantial question. Finally, if the appeal satisfies each of these
      four requirements, we will then proceed to decide the
      substantive merits of the case.

Commonwealth v. Colon, 102 A.3d 1033, 1042-43 (Pa. Super. 2014)

(citation omitted).

      As noted, the appeal is timely, the issue was preserved when Lyons

filed a motion to modify his sentence, and his brief contains the required

Pa.R.A.P. 2119(f) statement. The only remaining question is whether Lyons’

arguments raise a substantial question.




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     First, Lyons generally argues his sentence is manifestly excessive due

to the sentences running consecutive, for an aggregate sentence of 116 to

232 months’ incarceration.

     A challenge to the imposition of consecutive rather than
     concurrent sentences does not present a substantial question
     regarding the discretionary aspects of sentence. Lloyd, 878 A.2d
     at 873. “We see no reason why [a defendant] should be afforded
     a volume discount for his crimes by having all sentences run
     concurrently.” Hoag, 665 A.2d at 1214.

Commonwealth v. Zirkle, ___ A.3d ____, *5 (Pa. Super. 2014).

     Additionally,

     The imposition of consecutive, rather than concurrent, 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, 171-72 (Pa. Super. 2010).

     Finally,

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

Commonwealth v. Moury, 992 A.2d at 171 (citation omitted).




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       Here, Lyons’ 44 to 88 month sentence on the firearms charges was in

the standard range.4         That sentence, combined with his prior sentence,

provides for the minimum aggregate sentence of 116 months, which is

almost ten years of incarceration.             However, Lyons was convicted of five

second degree felonies5 that provide for a possible sentence of 25 to 50

years’ incarceration.       Lyons’ actual sentence was less than half of his

possible sentence.      Given that Lyons was convicted of aggravated assault

and firearms violations, the aggregate sentence is not unduly harsh and

does not represent an extreme circumstance. Accordingly, this issue does

not raise a substantial question.

       Next, Lyons claims his aggregate sentence is manifestly excessive

because the trial court failed to consider mitigating circumstances and

possession of the firearms was already taken into account in his prior

sentence in the application of the deadly weapons enhancement.




____________________________________________


4
 The record reflects the standard range minimum sentence was between 42
and 54 months incarceration. This is based upon an offense gravity score of
10 and Lyons’ prior record score of 3.
5
  As already discussed, the charges at issue were three counts of aggravated
assault, 18 Pa.C.S. § 2702(a)(6) and two counts of person not to possess a
firearm, 18 Pa.C.S. § 6105(a)(1). See Footnotes 1-2, supra.




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       The alleged failure to consider mitigating factors does not raise a

substantial factor. See Moury, 992 A.2d at 171.6         However, Lyons’ claim

regarding his possession of the weapons raises a claim that the trial court

improperly double counted factors, which does raise a substantial question.

See Commonwealth v. Goggins, 748 A.2d 721 (Pa. Super. 2000).

       In passing sentence, the trial court acknowledged the fact that Lyons

had been subject to the deadly weapon enhancement in his prior sentence.

However, the trial court correctly noted that Lyons would have been subject

to the enhancement even if he had legally possessed the weapons.

However, he did not legally possess the guns, which gave rise to the

separate    felonies    and    separate    punishment.   See    N.T.   Sentencing,

1/23/2014, at 16-17; Trial Court Opinion, 4/22/2014.           We agree with the

trial court that because the firearms offenses were based upon a factor

additional to the factors that triggered the deadly weapon enhancement, the

trial court did not improperly double count factors. Accordingly, this claim

does not support the argument that the trial court abused its discretion in

making the sentences run consecutively.

       Judgment of sentence affirmed.
____________________________________________


6
 Moury does note that a substantial question is raised when the sentencing
court imposes an aggravated range sentence without adequately considering
mitigating factors, citing Commonwealth v. Felmlee, 828 A.2d 1105 (Pa.
Super. 2003) (en banc). There is no aggravated sentence at issue in this
matter.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/10/2015




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