J-S11006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                    v.

MICHAEL LINEBURG,

                          Appellant                  No. 113 WDA 2016


        Appeal from the Judgment of Sentence September 30, 2015
            In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0001722-12
                       and CP-02-CR-0013718-2013


BEFORE: OLSON and RANSOM, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                            FILED MARCH 17, 2017

       Appellant, Michael Lineburg, appeals from the judgment of sentence

entered on September 30, 2015, as made final by the order entered on

January 6, 2016, which denied Appellant’s post-sentence motion. We affirm.

       On July 14, 2015, Appellant pleaded guilty at docket number CP-02-

CR-0001722-2012 to aggravated assault, firearms not to be carried without

a license, possession of a firearm by a prohibited person, possession of a

firearm by a minor, and recklessly endangering another person; Appellant

also   pleaded   guilty   at   docket   number   CP-02-CR-0013718-2013   to




*Former Justice specially assigned to the Superior Court.
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aggravated assault.1        During the guilty plea hearing, the Commonwealth

summarized the factual basis for Appellant’s plea:

         [At     docket    number      CP-02-CR-0001722-2012,]    the
         Commonwealth would have called as witnesses Detective
         Tim Rush as well as others in addition to Kimberly Wade
         and Officer Achille. They would have testified that on the
         4th of August 2011 [at approximately 10:16 p.m.,] City of
         Pittsburgh [Police] officers were called to 2121 Koerner
         Avenue on the North Side for a person shot. On arrival[,]
         they located one Kimberly Wade who had been shot once in
         the abdomen and grazed one time on the right side of her
         torso. Ms. Wade was transported to Allegheny General
         Hospital in critical condition and upgraded to serious
         condition by a doctor at the hospital. [Appellant] was later
         apprehended carrying a firearm that matched shell casings
         found at the scene.          [Appellant] was interviewed by
         Detective Tim Rush and gave a confession indicating he had
         fired multiple rounds emptying his clip in the general
         direction at Kimberly Wade while she was located on the
         front porch of her residence. That firearm was test-fired by
         the Allegheny County Crime Lab, found to be in good
         operating condition. And it was a nine millimeter caliber
         Taurus pistol. . . . In addition, [Appellant] did not have a
         valid license to carry a firearm and had been prior
         adjudicated delinquent for person not to possess by virtue
         of . . . possession of a firearm by a minor. . . .

         [At    docket     number      CP-02-CR-0013718-2013,         the]
         Commonwealth would have called as witnesses Detective
         Dale Canofari as well as Detective Hal Bolin and Elijah David
         . . . as well as others. They would have testified [that, on]
         June 11, 2013, at approximately [12:50 a.m.,] officers
         responded to 109 Rhine Place for a man shot.                Upon
         arrival[,] officers found victim Elijah David [lying] in front of
         109 Rhine Place with numerous gunshot wounds. He was
         transported to Allegheny General Hospital emergency room
____________________________________________


1
 18 Pa.C.S.A. §§ 2702(a)(1), 6106(a)(1), 6105(a)(1), 6110.1, 2708, and
2701(a)(1), respectively.



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        . . . in critical condition. Detectives spoke with Elijah David.
        He indicated that he had been shot multiple times by
        [Appellant]. He was struck five times during the incident in
        his extremities and back area. He identified [Appellant]
        through a series of photo arrays and identified him as the
        [individual] who shot him.

N.T. Guilty Plea Hearing, 7/14/15, at 6-8.

      On September 30, 2015, the trial court sentenced Appellant to serve

an aggregate term of 12-and-a-half to 25 years in prison, followed by five

years of probation, for his convictions.      Appellant’s aggregate sentence

included a term of 90 to 180 months in prison for aggravated assault at

docket number CP-02-CR-0013718-2013 and a consecutive term of 60 to

120 months in prison for aggravated assault at docket number CP-02-CR-

0001722-2012; the former aggravated assault sentence fell within the

standard guideline range and the latter aggravated assault sentence fell

within the mitigated guideline range. N.T. Sentencing Hearing, 9/30/15, at

19.

      On December 8, 2015, Appellant filed a counseled Post Conviction

Relief Act (“PCRA”) petition, seeking the reinstatement of his post-sentence

and direct appeal rights. See Appellant’s PCRA Petition, 12/8/15, at 1. The

PCRA court granted Appellant’s petition and Appellant filed a timely post-

sentence motion.      Within Appellant’s post-sentence motion, Appellant

claimed:

        Although his sentence is within the statutory limits, and in
        fact the periods of incarceration imposed are in the standard
        [sic] range, the sentence imposed was manifestly excessive,
        unreasonable, and an abuse of discretion for the following


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        reasons:    (1) the trial court sentenced him without
        providing sufficient reasons for the sentence imposed[;] (2)
        the trial court failed to give careful consideration to all
        relevant factors, specifically, the court did not review the
        presentence investigation (PSI) report[; and,] (3) the court
        cited no reasons for imposing the periods of incarceration
        consecutive to one another, and the maximum sentence of
        12 ½ to 25 years’ imprisonment imposed was excessive.

        There were pertinent factors in this case that made the
        imposition of the two standard [sic] range sentences
        unreasonable.     There is no indication that the court
        considered [Appellant’s] willingness to take responsibility for
        his actions by entering a guilty plea; [Appellant’s]
        expression of remorse at his sentencing proceedings; and
        other mitigating factors.

        Additionally, [Appellant] asserts that the sentencing court
        abused its discretion in not running the sentences
        concurrent to one another instead of consecutively. . . .

        [The trial court’s] imposition of a sentence of not less than
        12 ½ years and not greater than 25 years’ imprisonment is
        inconsistent with specific provisions of the Sentencing Code,
        and is contrary to the fundamental norms underlying the
        Code.

Appellant’s Supplemental Post-Sentence Motion, 12/21/15, at 3-4.

     The trial court denied Appellant’s post-sentence motion on January 6,

2016 and Appellant filed a timely notice of appeal. Appellant presents one

claim on appeal:

        Did the trial court abuse its discretion in sentencing
        [Appellant] to two consecutive standard range sentences
        totaling 12 ½ to 25 years’ imprisonment where the court did
        not consider all relevant sentencing code factors; did not
        review the presentence report; did not consider
        [Appellant’s] willingness to take responsibility for his actions
        by pleading guilty, and his sincere expression of remorse;
        and did not give any reasons for imposing consecutive
        rather than concurrent terms in fashioning a sentence.


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Appellant’s Brief at 7 (internal bolding and some internal capitalization

omitted).

      Appellant’s claim on appeal is a challenge to the discretionary aspects

of his sentence. “[S]entencing is a matter vested in the sound discretion of

the sentencing judge, whose judgment will not be disturbed absent an abuse

of discretion.”   Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa.

Super. 2001).     Moreover, pursuant to statute, Appellant does not have an

automatic right to appeal the discretionary aspects of his sentence. See 42

Pa.C.S.A. § 9781(b).      Instead, Appellant must petition this Court for

permission to appeal the discretionary aspects of his sentence. Id.

      As this Court explained:

        [t]o reach the merits of a discretionary sentencing issue, we
        conduct a four-part analysis to determine: (1) whether
        appellant has filed a timely notice of appeal, Pa.R.A.P. 902,
        903; (2) whether the issue was properly preserved at
        sentencing or in a motion to reconsider and modify
        sentence, 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. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).

      In the case at bar, Appellant filed a timely post-sentence motion and

notice of appeal.      Moreover, within Appellant’s post-sentence motion,

Appellant claimed that the trial court abused its discretion at sentencing

because the trial court:    1) “sentenced him without providing sufficient

reasons for the sentence imposed;” 2) “failed to give careful consideration to


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all relevant factors, specifically, the court did not review the presentence

investigation (PSI) report;” 3) “cited no reasons for imposing the periods of

incarceration consecutive to one another;” and, 4) did not consider

Appellant’s “willingness to take responsibility for his actions by entering a

guilty plea [or Appellant’s] expression of remorse at his sentencing

proceedings.” Appellant’s Supplemental Post-Sentence Motion, 12/21/15, at

3-4.

       On appeal, Appellant repeats the third and fourth numbered sub-

claims listed above. See Appellant’s Brief at 15-21. With respect to the first

numbered sub-claim (that the trial court “sentenced him without providing

sufficient reasons for the sentence imposed”), Appellant has not expounded

upon this claim outside of the contention that the trial court “cited no

reasons for imposing the periods of incarceration consecutive to one

another.”   Id.   Therefore, since Appellant’s first sub-claim is subsumed in

the third, we will not independently analyze Appellant’s first numbered sub-

claim.   Further, on appeal, Appellant has abandoned his claim that the trial

court “did not review the presentence investigation [] report” and Appellant

claims, instead, that the trial court failed to consider his “background,

particularly his history of mental illness and physical abuse.”    Appellant’s

Brief at 20.   The claim Appellant raises on appeal is waived, as Appellant

failed to raise the claim in his post-sentence motion.     Pa.R.Crim.P. 720;

Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower court are waived and

cannot be raised for the first time on appeal”).

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      We will now determine whether the claims Appellant preserved – that

the trial court “cited no reasons for imposing the periods of incarceration

consecutive to one another” and did not consider Appellant’s “willingness to

take responsibility for his actions by entering a guilty plea [or Appellant’s]

expression    of   remorse   at   his   sentencing    proceedings”     –   present   a

“substantial question that the sentence appealed from is not appropriate

under the Sentencing Code.” Cook, 941 A.2d at 11.

      Generally, to raise a substantial question, an appellant must “advance

a colorable argument that the trial judge’s actions were:            (1) inconsistent

with a specific provision of the Sentencing Code; or (2) contrary to the

fundamental        norms     which      underlie     the   sentencing       process.”

Commonwealth v. McKiel, 629 A.2d 1012, 1013 (Pa. Super. 1993);

Commonwealth v. Goggins, 748 A.2d 721, 726 (Pa. Super. 2000) (en

banc), appeal denied, 759 A.2d 920 (Pa. 2000). Moreover, in determining

whether an appellant has raised a substantial question, we must limit our

review to Appellant’s Rule 2119(f) statement. Goggins, 748 A.2d at 726.

This limitation ensures that our inquiry remains “focus[ed] on the reasons

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

which are necessary only to decide the appeal on the merits.”              Id. at 727

(internal emphasis omitted).

      The trial court in this case sentenced Appellant in the standard

sentencing range for one aggravated assault conviction and in the mitigated


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sentencing range for the second aggravated assault conviction; the trial

court then ordered that Appellant serve the two sentences for aggravated

assault consecutively. On appeal, Appellant claims that the trial court erred

because it “cited no reasons for imposing the periods of incarceration

consecutive to one another.” Appellant’s Brief at 20. This Court has held

that such a claim raises substantial question under the Sentencing Code.

Commonwealth v. L.N., 787 A.2d 1064, 1071-1072 (Pa. Super. 2001)

(holding the defendant’s claim that the trial court “failed to properly

articulate reasons for imposing consecutive sentences” raised a substantial

question). Therefore, we may reach the merits of Appellant’s claim.

     However, Appellant’s claim on appeal immediately fails because the

trial court, in fact, fully and properly explained why it imposed consecutive

sentences in this case.   As the trial court explained during the sentencing

hearing:

        [Trial Court:] Here is the thing. I tend to agree with the
        victim’s mother and the victim’s grandmother. This is a
        horrific crime. But by the grace of God this isn’t a murder
        case where your client is looking at life in prison for first
        degree murder. . . . It is a miracle that the one victim is
        alive. I know you saved us the cost of a trial and that, but
        still at the same time this is the kind of conduct that kind of
        scares me that if he gets back on the street too soon, it is
        going to happen all over again and I am going to have
        another victim’s family in front of me complaining that this
        is happening again.

        These were two separate incidents, or is this one incident
        with two victims?




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        [The Commonwealth:] Two separate case[s].              As I
        indicated, he did the one case, he was placed in Vision
        Quest. After he shot Kimberly Wade, he was placed in
        Vision Quest. He escaped, absconded from Vision Quest,
        and he gets a gun and puts Elijah David in a wheelchair.

                                    ...

        [Trial Court:] Given the nature of the crimes as bad as they
        were, in the case ending in 13718 I am going to give you a
        standard range sentence, 90 to 180 months, on the original
        count two. On the other case, the case ending in 1772, I
        am going to give him slightly in the mitigated 60 to 120, but
        I will run those consecutive rather than concurrent given
        the nature of these acts. . . .

N.T. Sentencing Hearing, 9/30/15, at 18-19.

     Further, as the trial court explained in its opinion to this Court, the

trial court “ordered, reviewed, and considered” Appellant’s presentence

investigation report prior to imposing Appellant’s sentence.      Trial Court

Opinion, 7/14/16, at 7; see also Commonwealth v. Baker, 72 A.3d 652,

663 (Pa. Super. 2013) (“[w]hen a sentencing court has reviewed a

presentence investigation report, we presume that the court properly

considered and weighed all relevant factors in fashioning the defendant’s

sentence”).

     It is clear from the above that, at the sentencing hearing, the trial

court fully explained why “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” required




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consecutive   sentences    in   this   case.    See   42   Pa.C.S.A.   § 9721(b).

Appellant’s claim to the contrary fails.

      Finally, Appellant claims that, at sentencing, the trial court “failed to

consider” the following two mitigating factors:       Appellant’s “willingness to

take responsibility for his actions by entering a guilty plea” and Appellant’s

“expression of remorse at his sentencing proceedings.”          See Appellant’s

Brief at 20. Appellant’s claim does not raise a substantial question under the

Sentencing Code. See Commonwealth v. McNabb, 819 A.2d 54, 57 (Pa.

Super. 2003) (“an allegation that the sentencing court did not consider

certain mitigating factors does not raise a substantial question”); see

Commonwealth v. Dunphy, 20 A.3d 1215, 1222 (Pa. Super. 2011) (“[a]n

allegation that the sentencing court ‘failed to consider’ or ‘did not adequately

consider’ various factors does not raise a substantial question that the

sentence was inappropriate”), quoting McKiel, 629 A.2d at 1013; see also

Commonwealth v. Felmlee, 828 A.2d 1105, 1106 (Pa. Super. 2003) (a

claim that the trial court “erred by imposing an aggravated range sentence

without consideration of mitigating circumstances raises a substantial

question”) (emphasis added).       Therefore, we may not reach the merits of

Appellant’s final claim.

      Judgment of sentence affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/20/2017




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