J-S54010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                             IN THE SUPERIOR COURT
                                                                    OF
                                                               PENNSYLVANIA
                              Appellee

                        v.

 BRIAN J. FLESHER

                              Appellant                     No. 1596 WDA 2016


           Appeal from the Judgment of Sentence September 13, 2016
               In the Court of Common Pleas of Allegheny County
                Civil Division at No(s): CP-02-CR-0000060-2013
                                         CP-02-CR-0001159-2013
                                         CP-02-CR-0001622-2013
                                         CP-02-CR-0001669-2013
                                         CP-02-CR-0016267-2012


BEFORE: OTT, J., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY MOULTON, J.:                            FILED DECEMBER 1, 2017

       Brian J. Flesher appeals from the September 13, 2016 judgment of

sentence entered in the Allegheny County Court of Common Pleas following

his convictions for multiple counts of burglary and one count each of

conspiracy, criminal mischief – tamper with property, and attempt to commit

burglary.1 We affirm in part, vacate in part, and remand for the correction of

a clerical error in the sentencing order.

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       *   Former Justice specially assigned to the Superior Court.

       1 18 Pa.C.S.          §§   3502(c)(1),   903(a),   3304(a)(2),   and   901(a),
respectively.
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       On October 18, 2013, Flesher pled guilty to numerous charges of

burglary and related crimes, stemming from a total of 14 burglaries and one

attempted burglary. On January 24, 2014, the trial court sentenced him to

an aggregate term of 13½ to 27 years’ incarceration, followed by 9 years’

probation. Flesher filed a post-sentence motion, which the trial court denied

by operation of law on August 18, 2014. On September 17, 2014, Flesher

timely appealed to this Court.             On appeal, this Court found several

discrepancies between the sentences imposed at the January 24, 2014

sentencing hearing and the sentencing orders. Therefore, on December 11,

2015, we vacated the judgment of sentence and remanded for clarification

and resentencing.       Upon remand, on September 13, 2016, the trial court

resentenced Flesher to an aggregate term of 13½ to 27 years’ incarceration,

followed by 6 years’ probation.2 Flesher filed a motion to reconsider sentence,
____________________________________________


       2  We have found a discrepancy between the resentencing hearing
transcript and the sentencing order. During resentencing, the trial court
stated: “I understand there was a resentencing hearing, and [defense
counsel] did make argument for a reduced sentence. Other than reducing the
probation from 9 years to a total aggregate of 6, I did impose the originally-
intended sentence with, hopefully, the clarifications and links that we needed
to make.” N.T, 9/13/16, at 24. The sentencing order, however, reflects an
aggregate probationary period of nine years. Because the trial court’s intent
to impose an aggregate probation of 6 years is evident from the record, we
conclude the discrepancy is merely a clerical error in the sentencing order.
See Commonwealth v. Borrin, 80 A.3d 1219, 1227 (Pa. 2013) (“The term
‘clerical error’ has been long used by our courts to describe an omission or a
statement in the record or an order shown to be inconsistent with what in fact
occurred in a case, and, thus, subject to repair.”); Commonwealth v.
Liscinsky, 171 A.2d 560, 561 (Pa.Super. 1961) (holding that
sentencing order contained a “clerical error” subject to correction, as it did not



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which the trial court denied on September 20, 2016. Flesher filed a timely

notice of appeal.

       On appeal, Flesher raises the following issue:

          Does a sentencing court abuse its discretion by imposing [a]
          clearly unreasonable sentence of decades in the criminal
          justice system that is patently disproportionate when
          considering the protection of the public in relation to the
          nature of the burglary offenses where no one was home and
          [Flesher]’s rehabilitative needs as an addict?

Flesher’s Br. at 35 (full capitalization omitted).

       Flesher is challenging the discretionary aspects of his sentence.

“Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super. 2011).           Before we address such a challenge, we first

determine:

          (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 [S]entencing [C]ode.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)).




____________________________________________


reflect trial court’s stated intent that sentence it imposed would be effective
on expiration of defendant’s federal sentence).

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       Flesher filed a timely notice of appeal, preserved his issue in a post-

sentence motion, and included in his brief a concise statement of reasons

relied upon for allowance of appeal pursuant to Pennsylvania Rule of Appellate

Procedure 2119(f). Flesher claims that (1) the trial court’s failure to consider

mitigating factors resulted in an excessive sentence;3 and (2) the trial court

failed to consider the protection of the public, gravity of the offense, and

Flesher’s rehabilitative needs. These claims raise substantial questions. See

Commonwealth v. Derry, 150 A.3d 987, 992 (Pa.Super. 2016) (concluding

that a claim that trial court failed to consider protection of public, gravity of

underlying offense, and appellant’s rehabilitative needs raises a substantial

question in typical cases); Commonwealth v. Dodge, 77 A.3d 1263, 1272

(Pa.Super. 2013) (“[A]n excessive sentence claim, in conjunction with an

assertion       that      the      court       did     not   consider   mitigating

factors, raise[s] a substantial question.”).         We now address the merits of

Flesher’s case.

       Flesher first claims that the trial court imposed a “clearly unreasonable”

sentence because his “offenses involved breaking into suburban homes where

no one was home and stealing items, such as electronics and jewelry.”


____________________________________________


       3 To the extent that Flesher alleges an abuse of discretion due to the
consecutive nature of his sentences, we conclude he has waived this claim for
failure to include it in his Pennsylvania Rule of Appellate Procedure 1925(b)
Statement. See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)
(“Any issues not raised in a [Rule] 1925(b) statement will be deemed
waived.”).

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Flesher’s Br. at 51. He argues that the reason he stole items was “to support

his drug habit” and that “[n]o one was injured, sexually assaulted, or

murdered.” Id. at 52. Flesher further claims that the trial court failed to

consider the protection of the public, the gravity of the offense, and his

rehabilitative needs. Flesher maintains that he did not pose “some type of

violent threat to society,” because “[h]e engaged in no physically violent acts

during these burglaries, he used no weapon during these burglaries, and he

caused no physical harm to anyone.” Id. at 52-53. He argues that his crimes

were fueled by his untreated drug addiction and that the trial court failed to

address how the sentence imposed would assist Flesher in his rehabilitative

needs. Id. at 55-56.

      At the resentencing hearing, the trial court stated:

         So I am going to incorporate the statements that I made at
         the original sentencing hearing, the rationale that I provided
         at that time, into the record here today. I did take into
         account [Flesher’s] rehabilitation needs.         I read the
         presentence report, considered the information contained in
         that report with regard to the ability of probation to monitor
         him.

             While he was on probation for burglaries, he committed
         all of these. . . . I think Mr. Flesher certainly holds the record
         in my courtroom for someone on probation for burglaries
         going out while on probation for burglaries and committing
         so many additional burglaries.

            I do believe that each of the victims in this case, as I
         indicated at the original sentencing, do deserve to have their
         case considered separately. Even though many of the
         victims’ charges were consolidated into six informations by
         the Commonwealth, there are, by my count, 15 victims.



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            I believe the original sentencing scheme, as I intended it
         to be, is an appropriate one. I did run many of the original
         sentences concurrent and sentenced, based on his
         cooperation and plea to the charges, to mitigated or below
         sentences on each.

             And while I hope that he is making every effort to get his
         life in order, for all the original reasons, I do believe he
         needs a lengthy period of time to do that and that the
         victims in the case deserve to feel safe in their homes. That
         is something he took away from them by his acts.

N.T., 9/13/16, at 10-12.

      Flesher’s claim that the trial court did not consider certain mitigating

factors is belied by the record. The trial court was well aware of the mitigating

factors and the facts surrounding this case. See N.T., 1/24/14, at 30-32, 37.

Further, the trial court had the benefit of Flesher’s pre-sentence report. See

Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009) (“Where

pre-sentence reports exist, we . . . presume that the sentencing judge was

aware of relevant information regarding the defendant’s character and

weighed those considerations along with mitigating statutory factors.”)

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

Moreover, contrary to Flesher’s claims, the trial court considered the

protection of the public, the gravity of the offense, and his rehabilitative

needs. See N.T., 9/13/16, at 10-12.

      Finally, Flesher’s reliance on Commonwealth v. Williams, 69 A.3d 735

(Pa.Super. 2013), is misplaced.     In Williams, the appellant pled guilty to

seven counts of burglary and related offenses, and the trial court sentenced

her to an aggregate term of 24 years and 2 months to 48 years and 4 months’

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incarceration, to be served consecutively to a separate term of 7 to 20 years’

incarceration for new criminal charges. Id. at 739. On appeal, we concluded

that the sentence was severe on its face because “the sentence was manifestly

excessive in the specific circumstances” and “the sentencing court’s reasoning

[was] infused with partiality, prejudice, bias or ill will.” Id. at 742 (internal

quotation omitted).

      Here, Flesher pled guilty to several charges resulting from his

involvement in 14 burglaries and one attempted burglary, and his actions

created 15 victims.     The trial court sentenced him to 13½ to 27 years’

incarceration, followed by 6 years’ probation, running many of his sentences

concurrently. Unlike Williams, Flesher does not claim, nor do we find, that

the trial court’s reasoning was infused with partiality, prejudice, bias, or ill

will. The trial court clearly stated its reasons on the record, considered the

relevant sentencing factors, and upon resentencing, reduced Flesher’s

probationary period from 9 years to 6 years. Accordingly, we conclude the

trial court did not abuse its discretion.

      Judgment of sentence vacated in part. Case remanded for the trial court

to correct the sentencing order to reflect an aggregate probationary period of

six years. See supra note 2. Judgment of sentence is affirmed in all other

respects. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/1/2017




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