J-S25033-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

EARL HAWKINS,

                            Appellant                No. 1668 WDA 2014


          Appeal from the Judgment of Sentence September 30, 2014
              in the Court of Common Pleas of Allegheny County
              Criminal Division at No.: CP-02-CR-0011151-2009


BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                   FILED MAY 19, 2015

        Appellant, Earl Hawkins, appeals from the judgment of sentence

entered following his resentencing pursuant to the United States Supreme

Court’s decision in Miller v. Alabama 132 S. Ct. 2455, 2460 (2012) and the

Pennsylvania Supreme Court’s decision in Commonwealth v. Batts, 66

A.3d 286, 297 (Pa. 2013). On appeal, Appellant challenges the discretionary

aspects of sentence.         For the reasons discussed below, we affirm the

judgment of sentence.

        We take the underlying facts and procedural history in this matter

from the sentencing court’s opinion and from our opinion on Appellant’s first

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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direct appeal. (See Sentencing Court Opinion, 1/15/15, at 1-16; see also

Commonwealth       v.   Hawkins,     No.   1448   EDA   2012,   unpublished

memorandum at *2-11 (Pa. Super. filed August 20, 2013) (quoting Trial

Court Opinion, 2/01/13, at 2-16)).

     We briefly note that, on March 1, 2009, Appellant, then a juvenile,

persuaded James Owens and Jamie Glozzer to assist him in robbing Brandon

Sheetz.   Glozzer was reluctant to participate but agreed when Appellant

pulled a gun on him. The three men dressed in dark clothing, and Appellant

and Owens had white masks over their faces.       Both Appellant and Owens

were armed. The men knocked on Sheetz’s door and, when he answered,

Appellant pointed a gun at his head. Appellant and Sheetz struggled over

possession of the gun, and, during the struggle, the gun went off, killing

Owens and injuring Sheetz. As Sheetz lay on the ground, Appellant fired the

gun at Sheetz’s head but missed. Appellant and Glozzer both fled the scene.

The police apprehended Appellant shortly thereafter.

     Subsequently, the police became aware of Glozzer’s involvement.

Glozzer gave two complete statements to the police and then entered into

an agreement with the Commonwealth to plead guilty to murder in the third

degree in exchange for his testimony against Appellant.     Appellant knew

about Glozzer’s agreement and, while both were incarcerated, Appellant

engaged in a persistent campaign to induce Glozzer to retract his statement

and tell the police that Appellant was not involved in the shooting.   After


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being harassed and threatened by other inmates, Glozzer signed his name to

a statement saying that he was threatened by police and that Owens forced

Appellant to participate in the robbery.    However, Glozzer ultimately gave

the threatening notes from Appellant to his lawyer, told counsel he was

forced to sign a statement recanting his prior statement, and testified

against Appellant at trial.

       Following trial, the jury found Appellant guilty of murder in the second

degree, aggravated assault, robbery, firearms not to be carried without a

license, and conspiracy. The trial court found Appellant guilty of person not

to possess a firearm. On June 28, 2011, the court sentenced Appellant to an

aggregate term of incarceration of not less than life without parole plus a

consecutive term of incarceration of not less than thirteen and one-half nor

more than twenty-seven years.

       Appellant appealed.    On August 20, 2013, we rejected Appellant’s

suppression and weight of the evidence claims but vacated the judgment of

sentence and remanded for resentencing in light of Miller and Batts. (See

Hawkins, supra at 21); see also Miller, supra at 2460; Batts, supra at

297.   We specifically “direct[ed] the [sentencing] court’s attention to the

recently enacted sentencing scheme set forth by our legislature in 18




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Pa.C.S.[A.] § 1102.1 for guidance.”1             (Hawkins, supra at 21 (emphasis

added)).

       Following receipt of a new pre-sentence investigation report (PSI), on

September 30, 2014, the court resentenced Appellant to an aggregate term

of incarceration of not less than thirty-four years nor more than life. (See

N.T. Sentencing, 9/30/14, at 155-57; see also Sentencing Ct. Op., at 2-3).

On October 6, 2014, Appellant filed a post-sentence motion, which the

sentencing court denied on October 8, 2014.             The instant, timely appeal

followed. Although not ordered to do so by the sentencing court, Appellant

filed a concise statement of errors complained of on appeal on October 9,

2014. See Pa.R.A.P. 1925(b). On January 15, 2015, the sentencing court

filed an opinion. See Pa.R.A.P. 1925(a).

       On appeal, Appellant raises the following question for our review:

       1.     Did the [sentencing] court err in denying Appellant’s post
       sentencing motion[] since Appellant’s murder 2 sentence of 30
       years to life imprisonment, and aggregate sentence of 34 years
       to life imprisonment (which included 5 consecutive sentences),
       were manifestly excessive since he showed genuine remorse for
       his crimes, he was taking steps to rehabilitate himself and
       demonstrated that he was a changed person, and it is
       unreasonable to believe that it will take another 28.65 years for
       Appellant to reach the point at which he can return to and
       become a productive and positive member of society?

(Appellant’s Brief, at 3).
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1
  The new sentencing scheme set forth in 18 Pa.C.S.A. § 1102.1 applies
“only to minors convicted of murder on and after the date Miller was issued
(June 25, 2012).” Batts, supra at 293 (citations omitted).



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       In the appeal, the Appellant challenges the discretionary aspects of his

sentence.2 (See id. at 15-24). The right to appeal the discretionary aspects

of a sentence is not absolute. See Commonwealth v. McAfee, 849 A.2d

270, 274 (Pa. Super. 2004), appeal denied, 860 A.2d 122 (Pa. 2004). When

an appellant challenges the discretionary aspects of the sentence imposed,

he must present “a substantial question as to the appropriateness of the

sentence[. . . .]” Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa.

Super. 2003) (citations omitted).                An   appellant   must,   pursuant   to

Pennsylvania Rule of Appellate Procedure 2119(f), articulate “a colorable

argument that the sentence violates a particular provision of the Sentencing

Code or is contrary to the fundamental norms underlying the sentencing

scheme.”      Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa.

Super. 2005) (en banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation

omitted).       If   an   appellant’s    Rule    2119(f)   statement      meets   these

prerequisites, we determine whether a substantial question exists.                 See

Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000), appeal

denied, 759 A.2d 920 (Pa. 2000). “Our inquiry must focus on the reasons

for which the appeal is sought, in contrast to the facts underlying the
____________________________________________


2
  We note that Appellant preserved his discretionary aspects of sentence
claim by filing a timely post-sentence motion for reconsideration of
sentence.  (See Post Sentencing Motions, 10/06/14, at 6); see also
McAfee, infra at 275.




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appeal, which are necessary only to decide the appeal on the merits.” Id.

(emphases in original).

        Here, Appellant has included a Rule 2119(f) statement in his brief.

(See Appellant’s Brief, at 12-14).           He argues that the sentence was

manifestly excessive and unreasonable because the sentencing court failed

to consider certain mitigating factors, imposed four consecutive sentences in

addition to the sentence for murder in the second degree, did not provide

sufficient reasons to justify the sentence, and based its sentence solely on

the seriousness of the crime. (See id. at 12-13).

        Our standard of review is settled.

                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. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015)

(citation omitted).

        Initially, we hold that Appellant waived his claims that the sentencing

court    unreasonably   imposed    consecutive    sentences,   did   not   provide

sufficient reasons to justify the sentence, and based it solely on the

seriousness of the crime. Appellant did not raise these claims in his post-

sentence motion, in which he only raised the issue that the sentence was

manifestly excessive because the sentencing court did not consider

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mitigating factors such as Appellant’s remorse and rehabilitation while

incarcerated. (See Post Sentencing Motions, 10/06/14, at 6). An appellant

waives any discretionary aspects of sentence issue not raised in a post-

sentence motion; further, an appellant cannot raise an issue for the first

time on appeal.3       See Commonwealth v. Mann, 820 A.2d 788, 793-94

(Pa. Super. 2003), appeal denied, 831 A.2d 599 (Pa. 2003) (finding claim

sentencing court did not put sufficient reasons to justify sentence on record

waived where issue was not raised in post-sentence motion); see also

Pa.R.A.P. 302(a); Commonwealth v. Hanford, 937 A.2d 1094, 1098 n.3

(Pa. Super. 2007), appeal denied, 956 A.2d 432 (Pa. 2008) (new legal

theories cannot be raised for first time on appeal). Thus, Appellant did not

preserve these claims for our review and we deem them waived.

       Appellant claims that his sentence was unreasonable and excessive4

because the sentencing court did not consider mitigating factors.       (See

Appellant’s Brief, at 20-24).

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3
   We note that Appellant did raise the issue regarding the imposition of
consecutive sentences in his Rule 1925(b) statement.        (See Concise
Statement of Matters Complained of on Appeal Pursuant to Pa.R.A.P.
1925(b), 10/09/14, at 6). However, an appellant cannot raise issues for the
first time in a Rule 1925(b) statement. See Commonwealth v. Coleman,
19 A.3d 1111, 1118 (Pa. Super. 2011) (issues raised for first time in Rule
1925(b) statement are waived).
4
  We note that, at sentencing, the parties and the sentencing court agreed
that the sentencing guidelines did not apply because Appellant’s conviction
occurred prior to the decision in Miller, and the changes to 18 Pa.C.S.A. §
(Footnote Continued Next Page)


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      We note that a bald claim of an excessive sentence does not generally

raise a substantial question.          See Commonwealth v. Dodge, 77 A.3d

1263, 1269 (Pa. Super. 2013) (en banc), appeal denied, 91 A.3d 161 (Pa.

2014).    However, this Court has held that a claim of excessiveness in

conjunction with a claim that the sentencing court did not consider

mitigating factors presents a substantial question. See Gonzalez, supra at

731 (citing Dodge, supra at 1272); see also Commonwealth v. Zeigler,

--- A.3d ---, 2015 WL 1268158, at *5 (Pa. Super. filed March 20, 2015). We

will therefore address the merits of Appellant’s claim.

      In the instant matter, the sentencing court had the benefit of a PSI.

We have stated that:

            [w]hen imposing a sentence, a court is required to
      consider the particular circumstances of the offense and the
      character of the defendant. . . . 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.

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (some

internal quotation marks and citations omitted). Here, the sentencing court

stated that it had reviewed the PSI. (See N.T. Sentencing, 9/30/14, at 6).

      Additionally, Appellant has not demonstrated that his sentence was

manifestly excessive because the sentencing court failed to consider
                       _______________________
(Footnote Continued)

1102.1 only apply to those convicted after Miller.        (See N.T. Sentencing,
9/30/14, at 4, 113).



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mitigating factors.    Appellant presented four witnesses at the sentencing

hearing. Randolph A. Matuscak, a forensic social worker who prepared the

new PSI, testified as an expert.    (See id. at 7-43).   Appellant’s mother,

father, and a cousin also testified. (See id. at 44-64). Further, Appellant

testified on his own behalf. (See id. at 64-107). This testimony detailed

Appellant’s neglected and violent childhood and the positive changes

Appellant made in his life since entering prison. (See id. at 7-107). The

Commonwealth read into the record a letter written by the victim’s mother,

who also testified regarding the impact of Appellant’s crime on her family.

(See id. at 108-12).

      Based upon all of this evidence, the sentencing court handed down a

sentence of not less than thirty years nor more than life imprisonment for

murder in the second degree. (See id. at 155).    In so doing the sentencing

court followed this Court’s mandate to consider the sentencing scheme at 18

Pa.C.S.A. § 1102.1, and sentenced Appellant in accordance with that

scheme.    (See Hawkins, supra at 21); see also 18 Pa. C.S.A. §

1102.1(c)(1).    Further, the court cut the consecutive sentences from the

not less than thirteen and one-half nor more than twenty-seven years of

incarceration imposed originally to not less than four nor more than eight

years of incarceration.    (See id. at 156).   This was much closer to the

twenty-five years to life requested by Appellant and much lower than the

fifty years to life requested by the Commonwealth. (See id. at 144, 150).


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The sentencing court engaged in a detailed discussion of the purposes of

sentencing, the evidence presented, and its attempt to balance the

heinousness of the crimes against the positive changes Appellant made while

incarcerated, thus explaining its reasons for the sentence. (See id. at 123-

55).

       Clearly, the gist of Appellant’s argument is not that the sentencing

court did not consider the relevant sentencing factors, but rather that the

court did not weigh them as much in his favor as he wished.            (See

Appellant’s Brief, at 21-24). Our review of the record does not show that

the sentencing court abused its discretion or that it entered a manifestly

unreasonable sentence.    See Zeigler, supra at *5 (holding sentence not

manifestly unreasonable where sentencing court considered PSI, details of

crime, and explained reasons for sentence); Commonwealth v. Raven, 97

A.3d 1244, 1253-55 (Pa. Super. 2014), appeal denied, 105 A.3d 736 (Pa.

2014) (holding sentence not manifestly unreasonable where sentencing

court reviewed PSI, heard testimony on behalf of defendant, and reviewed

letters and victim impact statements, thus showing court had considered all

mitigating information). Appellant’s claim lacks merit.

       Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/19/2015




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