J. S59042/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                            Appellee        :
                                            :
                    v.                      :
                                            :
SHANE MCCULLOUGH,                           :
                                            :
                            Appellant       :     No. 749 WDA 2015

              Appeal from the Judgment of Sentence June 18, 2014
                  In the Court of Common Pleas of Erie County
               Criminal Division No(s).: CP-25-CR-0000190-2014

BEFORE: BOWES, DONOHUE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                   FILED SEPTEMBER 30, 2015

        Appellant, Shane McCullough, appeals from the judgment of sentence

entered in the Erie County Court of Common Pleas after he pleaded guilty to

criminal trespass,1 criminal mischief,2 and theft from a motor vehicle.3 He

challenges the discretionary aspect of his sentence.      Appellant claims the

trial court failed to consider significant and compelling mitigating factors and

his rehabilitative needs and potential. We affirm.




*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3503(a)(11).
2
    18 Pa.C.S. § 3304(a)(5).
3
    18 Pa.C.S. § 3934(a).
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        The facts are unnecessary for our disposition.     On June 18, 2014,

Appellant was sentenced to twelve to thirty-six months’ imprisonment for

criminal trespass, nine to twenty-four months’ imprisonment for criminal

mischief, and six to twelve months’ imprisonment for theft from a motor

vehicle. The sentences were concurrent. On November 13, 2014, Appellant

filed a pro se Post Conviction Relief Act4 (“PCRA”) petition.      Counsel was

appointed and filed a supplement to the PCRA petition. On March 6, 2015,

Appellant’s request for collateral relief was granted and his right to file a

post-sentence motion was reinstated. On March 16, 2006, Appellant filed a

post-sentence motion nunc pro tunc.       On April 17, 2015, the court denied

the motion for modification of sentence.         This timely appeal followed.

Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement of errors

complained of on appeal. The trial court filed a responsive opinion.

        Appellant raises the following issue for our review: “Whether the

sentencing court failed to consider and afford due weight to the various

mitigating factors in regard to the sentence that was imposed?” Appellant’s

Brief at 2.

        Appellant challenges the discretionary aspect of his sentence.

          Initially, we must determine whether Petitioner has the
          right to seek permission to appeal the sentencing court’s
          exercise of its discretion. Where a defendant pleads guilty
          without any agreement as to sentence, the defendant
          retains the right to petition this Court for allowance of

4
    42 Pa.C.S. §§ 9541-9546.



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         appeal with   respect   to   the   discretionary   aspects   of
         sentencing.

Commonwealth v. Brown, 982 A.2d 1017, 1018-19 (Pa. Super. 2009)

(citation omitted).

      This Court has stated,

         discretionary aspects of . . . sentence . . . are not
         appealable as of right. Rather, an appellant challenging
         the sentencing court’s discretion must invoke this Court’s
         jurisdiction by satisfying a four-part test.

               We conduct a four-part analysis to determine: (1)
            whether appellant has filed a timely notice of appeal,
            see Pa.R.A.P. 902 and 903; (2) whether the issue was
            properly preserved at sentencing or in a motion to
            reconsider and modify sentence, see Pa.R.Crim.P. 720;
            (3) whether appellant’s brief has a fatal defect,
            Pa.R.A.P. 2119(f); and (4) whether there is a
            substantial question that the sentence appealed from is
            not appropriate under the Sentencing Code, 42
            Pa.C.S.A. § 9781(b).


Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (some

citations omitted).

      Instantly, Appellant timely appealed, preserved his issue in his post

sentence motion, and included a Pa.R.A.P. 2119(f) statement in his brief.

Accordingly, we ascertain whether Appellant has raised a substantial

question. See id.5


5
  This Court has held that a “Rule 2119(f) statement must specify where the
sentence falls in relation to the sentencing guidelines and what particular
provision of the Code is violated . . . .” Commonwealth v. Goggins, 748
A.2d 721, 727 (Pa. Super. 2000) (en banc). Appellant’s 2119(f) statement



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     Appellant   contends     his    sentence   was   manifestly   excessive   in

disregarding several mitigating factors, specifically, his acceptance into

Father Peterson’s in Spartansburg prior to sentencing.6 Appellant’s Brief at

5. A representative of the facility, Joe Tarquenio, was scheduled to appear

at sentencing and advocate for his placement in the program as a

sentencing alternative. Id. However, the representative was not present at

the time of sentencing.     Id.     Appellant avers the court did not take into

consideration his alcohol and drug use at the time of the commission of the



failed to include a statement of where his sentence fell within the sentencing
guidelines. Appellant’s Brief at 4. However, as the Commonwealth did not
argue a defect in his Rule 2119(f) statement, we decline to find waiver. See
Commonwealth v. Dodge, 77 A.3d 1263, 1271 (Pa. Super. 2013), appeal
denied, 91 A.3d 161 (Pa. 2014).
6
  Appellant does not cite any legal authority in support of this argument.
This Court has stated:

        [I]t is an appellant’s duty to present arguments that are
        sufficiently developed for our review.       The brief must
        support the claims with pertinent discussion, with
        references to the record and with citations to legal
        authorities.   Pa.R.A.P. 2119(a), (b), (c).      Citations to
        authorities must articulate the principles for which they are
        cited. Pa.R.A.P. 2119(b).

        This Court will not act as counsel and will not develop
        arguments on behalf of an appellant. Moreover, when
        defects in a brief impede our ability to conduct meaningful
        appellate review, we may dismiss the appeal entirely or
        find certain issues to be waived.

Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010) (some
citations omitted). Instantly, we decline to find waiver as this defect does
not impede our ability to conduct meaningful appellate review. See id.



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underlying criminal conduct. Id. The court failed to consider the fact that

he had a minor child. Id.

      Generally, where the sentence is in the standard range, as in the case

sub judice, “a claim of inadequate consideration of mitigating factors does

not raise a substantial question for our review.”        Commonwealth v.

Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013).            However, a claim of

excessiveness can raise a substantial question as to the appropriateness of a

sentence under the Sentencing Code, even if the sentence is within the

statutory limits.   Commonwealth v. Mouzon, 812 A.2d 617, 624 (Pa.

2002).

      In his Rule 2119(f) statement, Appellant avers:

         As to the instant case and the sentence at issue, the
         fundamental norm violated was that the sentencing
         scheme imposed by the [c]ourt was manifestly excessive
         and not individualized, in that the court failed to consider
         significant and compelling mitigating factors and
         [Appellant’s] rehabilitative needs and potential.       The
         sentencing scheme could have served the interests of the
         public and recognized the rehabilitative prospects of
         [A]ppellant without imposing such a lengthy sentence.

Appellant’s Brief at 4.

      We find that Appellant’s Rule 2119(f) statement presents a substantial

question.7   See Mouzon, 812 A.2d at 624. Therefore, we will review the

merits of Appellant’s challenge to the discretionary aspects of his sentence.


7
  We note the trial court found that Appellant did not raise a substantial
question. Nonetheless, the court addressed the issue, “[a]ssuming the



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        Our standard of review is as follows:

           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. An abuse of discretion is more than just
           an error in judgment and, on 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.

        More specifically, 42 Pa.C.S.A. § 9721(b) offers the
        following guidance to the trial court’s sentencing
        determination:

           [T]he sentence imposed should call for confinement
           that is consistent with the protection of the public,
           the gravity of the offense as it relates to the impact
           on the life of the victim and on the community, and
           the rehabilitative needs of the defendant.

        42 Pa.C.S.A. § 9721(b).

        Furthermore,

           Section 9781(c) specifically defines three instances
           in which the appellate courts should vacate a
           sentence and remand: (1) the sentencing court
           applied the guidelines erroneously; (2) the sentence
           falls within the guidelines, but is “clearly
           unreasonable” based on the circumstances of the
           case; and (3) the sentence falls outside of the
           guidelines and is “unreasonable.”      42 Pa.C.S. §
           9781(c). Under 42 Pa.C.S. § 9781(d), the appellate
           courts must review the record and consider the
           nature and circumstances of the offense, the
           sentencing court’s observations of the defendant, the

Honorable Superior Court finds otherwise . . . .” Trial Ct. Op., 6/2/15, at 2.
The court found the claim to be meritless. See id. at 2-4. “We may affirm
the trial court on any ground.” Commonwealth v. Lynch, 820 A.2d 728,
730 n.3 (Pa. Super. 2003).



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           findings that formed the basis of the sentence, and
           the sentencing guidelines. The weighing of factors
           under 42 Pa.C.S. § 9721(b) is exclusively for the
           sentencing court, and an appellate court could not
           substitute its own weighing of those factors. The
           primary consideration, therefore, is whether the
           court imposed an individualized sentence, and
           whether the sentence was nonetheless unreasonable
           for sentences falling outside the guidelines, or clearly
           unreasonable for sentences falling within the
           guidelines, pursuant to 42 Pa.C.S. § 9781(c).

Commonwealth v. Bricker, 41 A.3d 872, 875-76 (Pa. Super. 2012)

(alterations and some citations omitted).

     Our Supreme Court has stated:

        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.      In order to dispel any
        lingering doubt as to our intention of engaging in an effort
        of legal purification, we state clearly that sentencers are
        under no compulsion to employ checklists or any extended
        or systematic definitions of their punishment procedure.
        Having been fully informed by the pre-sentence
        report, the sentencing court’s discretion should not
        be disturbed. This is particularly true, we repeat, in
        those circumstances where it can be demonstrated that
        the judge had any degree of awareness of the sentencing
        considerations, and there we will presume also that the
        weighing process took place in a meaningful fashion. . . .

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (emphasis added).

     At the sentencing hearing, the record reveals the following:8


8
  We note that Appellant’s probation was revoked at the hearing. N.T.,
6/18/14, at 8. The Commonwealth stated to the court that the instant



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        [Defense Counsel]: [Appellant’s] been in jail . . . . He’s
        had time to talk and to think. I’ve talked to him quite a
        bit. I think he has some insight into what he’s doing. On
        his own he got ahold [sic] of Joe Tarquinio of the Maria
        House Project, who will accept him.

           He has some mental health issues that put him on SSD
        [Social Security Disability]. . . . The crimes are relatively
        small. We’d ask for him to have a chance to work with Mr.
        Tarquinio. He believes that substance abuse is his issue.

        The Court: . . . Mr. McCullough, I did receive a letter from
        you. Is there anything you would like to say, sir?

        [Appellant]: I’m making no excuses for my actions. I need
        help. I’ve lost my son to OCY like 19 months ago and I
        just went down a deep, dark spiral of drinking and it’s
        gotten me in trouble. And I really need help.

                                *    *    *

        [The Commonwealth]: . . . In terms of looking at his
        history here, his adult history, we have a robbery in Florida
        in 2008, a trespass in 2009, simple assault here in Erie in
        2010, and then strings of just nuisance offenses, disorderly
        conduct, public drunkenness, all the way up until you
        sentence him for possessing with the intent to deliver
        marijuana and you give him probation.          He’s put on
        probation in September of 2013, and it looks like just
        within a few months he’s committing a new offense. It’s
        classified not a serious offense, but he broke into
        someone’s property and was smashing windows on
        vehicles.

                                *    *    *

        The Court: . . . I’ve considered of number of things here,
        the presentence investigative report on the new

conviction was the basis for the revocation. Id. at 5. The court sentenced
Appellant to seven to fourteen months’ imprisonment with credit for 210
days. Id. The court discharged him on that offense. Id.




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          offense in its entirety and I’m going to make that part of
          the record. I’ve also considered [Appellant’s] letter. I’m
          going to make that a part of the record and attach it to the
          presentence report. I’ve also considered the revocation
          summary, and I’m going to make that a part of the record.
          I’ve considered the Pennsylvania Sentencing Code, the
          guidelines as they apply to the new offenses, and the
          various statements made here to me today.

N.T. at 5-8.

      Appellant’s argument that the trial court ignored all mitigating factors

is belied by the record. The court considered mitigating factors in imposing

the sentence.     Furthermore, the court considered the presentence report.

See id.; Devers, 546 A.2d at 18. Accordingly, after examining the record

as a whole, we find that the trial court’s sentence was not manifestly

excessive.     We discern no abuse of discretion.   See Bricker, 41 A.3d at

875-76.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/30/2015




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