J.   S91009/16

NON -PRECEDENTIAL DECISION          - SEE SUPERIOR COURT I.O.P.       65.37
COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                   v.

ANTHONY CHARLES LANDI,                            No. 1004 MDA 2016

                        Appellant


           Appeal from the Judgment of Sentence, March 30, 2016,
              in the Court of Common Pleas of Lancaster County
             Criminal Division at Nos. CP- 36 -CR- 0003211 -2011,
             CP- 36 -CR- 0003214 -2011, CP- 36 -CR- 0003222 -2011,
                            CP- 36 -CR- 0005874 -2011


BEFORE:    FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED JANUARY 17, 2017

       Anthony Charles Landi appeals from the judgment of sentence of

March 30, 2016, following his conviction of six counts of robbery and other

offenses. We affirm.

       The trial court has aptly summarized the procedural history of this

case as follows:

                 On January 29, 2013, [appellant] entered an
            open guilty plea to one count of robbery[Footnote 1]
            and one count of theft by unlawful taking[Footnote
            2] on docket number 3211 -2011; four counts of
            robbery and four counts of theft by unlawful taking
            on docket number 3214 -2011, one count of robbery
            and one count of theft by unlawful taking on docket
            number    3222 -2011 and one count each           of
            possession of drug paraphernalia,[Footnote        3]

* Former Justice specially assigned to the Superior Court.
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            unauthorized use of a motor vehicle,[Footnote 4]
            false reports to law enforcement,[Footnote 5] driving
            under       suspension,[Footnote      6]      turning
            movements[Footnote 7] and failing to use a safety
            belt.[Footnote 8]

                   [Footnote   1] 18 Pa[.]C.S. § 3701(a)(1)(ii).
                   [Footnote   2] 18 Pa.C.S. § 3921(a).
                   [Footnote   3] 35 P.S. § 780-113(a)(32).
                   [Footnote   4] 18 Pa.C.S. § 3928(a).
                   [Footnote   5] 18 Pa.C.S. § 4906(a).
                   [Footnote   6] 75 Pa.C.S. § 1543(a).
                   [Footnote   7] 75 Pa.C.S. § 3334(a).
                   [Footnote   8] 75 Pa.C.S. § 4581(a)(2).

                   On   March    22,2013, after a presentence
            investigation, [appellant] was sentenced to an
            aggregate term of 15 to 30 years['] incarceration to
            be followed by five years['] consecutive probation.
            The sentences on the four robbery counts of docket
            number 3214 -2011 were concurrent with each other
            while the sentences on the other two robbery counts
            were consecutive.       Pursuant to section 9712,
            42 Pa.C.S. § 9712, the mandatory minimum
            sentence of five years['] incarceration was imposed
            for the robbery offenses committed with a firearm.

                  [Appellant] filed a motion to reconsider
            sentence which was denied on April 18, 2013.
            [Appellant] did not file a direct appeal to the
            Superior Court.

                  [Appellant] subsequently filed a timely petition
            for post[ -]conviction collateral relief, and a hearing
            was held on May 30, 2014. On December 4, 2014,
            the Court entered an order reinstating [appellant]'s
            appeal rights and allowing him 30 days to file an
            appeal to the Superior Court.

                 After the imposition of [appellant]'s sentence,
            the United States Supreme Court issued its decision
            in   Alleyne v. United States,            U.S.     ,   133
            S.Ct. 2151 (2013).         Based upon   Alleyne, section
            9712    was    held          to   be    unconstitutional.


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            Commonwealth v. Valentine, 101 A.3d 801
            (Pa.Super. 2014), appeal denied, 124 A.3d 309
            (Pa. 2015); Commonwealth v. Hopkins, 117 A.3d
            247 (Pa. 2015). As    result, on December 18, 2015,
                                   a
            the Superior Court vacated [appellant]'s sentence
            and   remanded     the   matter for sentencing.
            [Commonwealth v. Landi, 30 MDA 2015
            (Pa.Super. filed December 18, 2015) (unpublished
            memorandum).]

                  On   March   30, 2016, [appellant] appeared
            before the Court for resentencing. On each count of
            robbery on docket numbers 3211 -2011 and 3214-
            2011, [appellant] was sentenced to four and one -half
            to ten years['] incarceration.   On docket number
            3222 -2011, [appellant] was sentenced to four to ten
            years for the robbery offense. These sentences were
            imposed consecutively. On docket number 5874-
            2011, [appellant] was placed on probation for
            five years consecutive to the other docket numbers
            resulting in an aggregate sentence of 13 to
            30 years['] incarceration followed by five years[']
            probation.

                  [Appellant]'s    post[ -]sentence motion was
            denied on May 12, 2016.             On June 9, 2016,
            [appellant], acting pro se, filed a notice of appeal.
            Following a Grazier[Footnote 9] hearing, counsel
            was appointed and a statement of errors complained
            of on appeal[1] was filed [on] July 12, 2016.

                  [Footnote 9] Commonwealth v. Grazier,
                  552 Pa. 9, 713 A.2d 81 (1998).

Trial court opinion, 9/13/16 at   1 -3.


       Appellant has raised the following      issue for this court's   review,

challenging the discretionary aspects of his sentence:    "Whether the lower

court's aggregate sentence of 13 to 30 years['] incarceration was unduly


i Pa.R.A.P. 1925(b).

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harsh and         a   manifest abuse of discretion when the criminal acts of

[appellant] were fueled by his drug addiction and occurred within               a   three

week time period ?" (Appellant's brief at 8 (capitalization deleted).)

            Initially, we must address   a   jurisdictional issue.    Appellant was

sentenced on March 30, 2016, and filed           a   timely post- sentence motion to

modify his sentence on April 11, 2016,2 which was denied by order dated

May 12, 2016, and entered May 13, 2016.              Appellant, who   is   incarcerated,

filed   a   pro se notice of appeal dated June   9, 2016, with proof of service that

the notice was mailed to the trial court on that date.                     (Docket #3.)

However, the notice of appeal was time -stamped as having been received in

the trial court on June 15, 2016, two days beyond the 30 -day appeal

period.3      As such, the notice of appeal was facially untimely.

            Nonetheless, appellant is incarcerated.       See Commonwealth v.

Jones, 700 A.2d 423, 426 (Pa. 1997) (an appeal by              a   pro se prisoner     is



2 The actual    10th day following sentencing was Saturday, April 9, 2016.
Therefore, appellant's post- sentence motion filed Monday, April 11, 2016,
was timely. 1 Pa.C.S.A. § 1908 (excluding weekends and holidays from the
computation of time when the last day of the time period falls on a weekend
or holiday); Pa.R.Crim.P. 720(A)(1) (a written post- sentence motion shall be
filed no later than 10 days after imposition of sentence).

3  See Pa.R.Crim.P. 720(A)(2)(a) (If the defendant files a timely
post- sentence motion, the notice of appeal shall be filed within 30 days of
the entry of the order deciding the motion); Pa.R.A.P. 903(a) (notice of
appeal shall be filed within 30 days after the entry of the order from which
the appeal is taken). The actual 30th day following denial of appellant's
post- sentence motion, June 12, 2016, fell on a Sunday.            Therefore,
appellant's notice of appeal was required to be filed on or before Monday,
June 13, 2016. 1 Pa.C.S.A. § 1908.

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deemed filed on the date the prisoner deposits the appeal with prison

authorities and /or places it       in   the prison mailbox).        Although appellant did

not provide evidence of an earlier mailing date such as                a   prisoner cash slip,

one can assume from the date on the notice of appeal and its proof of

service that he placed the notice of appeal in the hands of prison officials by

the   30th   day, June 13, 2016.            See Pa.R.A.P. 121(a)            ( "A    pro se filing
submitted by     a   prisoner incarcerated in     a    correctional facility       is deemed filed

as of the date it is delivered to the prison authorities for purposes of mailing

or placed in the institutional mailbox, as evidenced by                a    properly executed

prisoner cash slip or other reasonably verifiable evidence of the date that the

prisoner     deposited    the pro se          filing    with   the   prison         authorities. ");

Commonwealth v. Patterson, 931 A.2d 710, 714 (Pa.Super. 2007)
(noting that even without       a   postmark definitively noting the date of mailing,

quashal may be avoided where the date of receipt indicates that appellant

likely placed the notice of appeal in the hands of prison officials before the

expiration of 30 days). In light of the above, this court has jurisdiction over

the instant appeal.

       Appellant argues that his sentence of 13 to 30 years' incarceration was

manifestly unreasonable and unduly harsh where the trial court focused

solely on the serious nature of the offenses and                           effectively ignored

mitigating evidence. Appellant alleges that the trial court failed to consider

his individual circumstances including his drug addiction and the fact that all



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six robberies occurred over     a   three -week time period.   (Appellant's brief at

18.)     According to appellant, the robberies were the result of his heroin

addiction. Appellant argues that since his incarceration, he has obtained his

GED,     completed    victim awareness education, and has maintained an

exemplary conduct record. Appellant also argues that by pleading guilty, he

spared the victims the additional trauma of having to testify in court.      (Id. at
18.) Appellant admitted his criminal activity and expressed remorse for his

actions.    (Id.) Appellant    also points to support from his family, including

letters submitted on his behalf at sentencing.            (Id.)     The sentencing

guidelines provided    a   standard range of 39 to 51 months for each count of

robbery, plus or minus 12 months in the aggravated /mitigated range.

(Notes     of testimony,     3/30/16 at 3.)       Therefore, five    of appellant's

six sentences for robbery fell within the aggravated range of the guidelines.

              As Appellant raises a challenge to the discretionary
              aspects of his sentence, we note the applicable
              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. 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.



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                 When imposing sentence,         a court is
                 required to consider the         particular
                  circumstances of the offense and the
                  character of the defendant.             In
                  considering these factors, the court
                  should refer to the defendant's prior
                  criminal      record,   age,     personal
                  characteristics     and   potential    for
                  rehabilitation.

Commonwealth v. McLaine,                  A.3d    ,   2016 WL 6576846 at *4

(Pa.Super. 2016), quoting Commonwealth v.             Antidormi,   84 A.3d 736,

760 -761 ( Pa.Super. 2014) (internal citations and quotation marks omitted).

            An   appellant is not entitled to the review of
            challenges to the discretionary aspects of a sentence
            as of right.    Rather, an appellant challenging the
            discretionary aspects of his sentence must invoke
            this Court's jurisdiction. We determine whether the
            appellant has invoked our jurisdiction by considering
            the following four factors:

                  (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).

Id., quoting Commonwealth           v.   Samuel, 102 A.3d 1001, 1006 -1007
(Pa.Super. 2014) (some citations omitted).




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       The record reflects that appellant timely filed      a   notice of appeal and

that he preserved this issue by including it        in his post- sentence motion      for

modification of sentence.         Appellant has also included in his brief             a


statement pursuant to Rule 2119(f).             We now consider whether appellant

has presented a "substantial question" for our review.

              This Court may reach the merits of an appeal
              challenging the discretionary aspects of a sentence
              only if it appears that a substantial question exists as
              to whether the sentence imposed is not appropriate
              under the Sentencing Code. "A substantial question
              will be found where the defendant advances a
              colorable argument that the sentence imposed is
              either inconsistent with a specific provision of the
              code or is contrary to the fundamental norms which
              underlie the sentencing process. A claim that the
              sentencing court imposed an unreasonable sentence
              by sentencing outside the guideline ranges presents
              a 'substantial question' for our review."


Commonwealth v. Griffin, 804 A.2d                 1, 7   (Pa.Super. 2002), appeal

denied, 868 A.2d 1198        (Pa. 2005),    cert. denied, 545     U.S. 1148 (2005),

quoting Commonwealth v. Eby, 784 A.2d 204, 206 (Pa.Super. 2001). See

also Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa.Super. 2004)

(a claim     that the court abused its discretion by sentencing outside the

guidelines    presents   a   substantial    question that the sentence         is     not

appropriate under the Sentencing Code), citing 42 Pa.C.S.A.         §   9781(c)(3).

              The standard of review in sentencing matters is well
              settled:   imposition of sentence is vested in the
              discretion of the sentencing court and will not be
              disturbed by an appellate court absent a manifest
              abuse of discretion. Commonwealth v. Smith, 543
              Pa. 566, 570 -71, 673 A.2d 893, 895 (1996).      An


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              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. Smith at 571, 673 A.2d at 895. An
              appellate court shall vacate a sentence and remand
              if the sentence is outside the guidelines and is
              "unreasonable."          Id. (quoting 42 Pa.C.S.
              § 9781(c)(3)).         If the sentence is "not
              unreasonable," the appellate court must affirm. Id.

Griffin,   804 A.2d at 7.

              When the sentencing court imposes a sentence
              outside the guidelines,        it  must provide a
              contemporaneous written statement of the reason or
              reasons for the deviation from the guidelines. Eby,
              784 A.2d at 206. The Sentencing Code requires a
              trial judge who intends to sentence outside the
              guidelines to demonstrate, on the record, his
              awareness of the guideline ranges. Id. Having done
              so, the sentencing court may, in an appropriate case,
              deviate from the guidelines by fashioning a sentence
              which takes into account the protection of the public,
              the rehabilitative needs of the defendant, and the
              gravity of the particular offense as it relates to the
              impact on the life of the victim and the community.
              Id. at 207. In doing so, the sentencing judge must
              state of record the factual basis and specific reasons
              which compelled him or her to deviate from the
              guideline ranges. Id. at 206. When evaluating a
              claim of this type, it is necessary to remember that
              the sentencing guidelines are advisory only. Id.

Griffin,   804 A.2d at 7 -8.

        Here, the trial court was well aware of appellant's mitigating evidence,

including his lengthy history of drug use, his employment history, and his

family support. (Notes of testimony, 3/30/16 at 6.) Defense counsel argued

that appellant has been        a   model prisoner during the four years he has been


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incarcerated.             (Id.)     The trial court was also in possession of     a   pre- sentence

investigation report.                  (Id. at 5.)    "Where the sentencing judge had the

benefit of   a       pre- sentence report, it will be presumed that he was aware of

relevant information regarding appellant's character and weighed those

considerations                 along      with       the       mitigating   statutory     factors."

Commonwealth v. Fullin, 892 A.2d 843, 849 -850 (Pa.Super. 2006),
quoting Commonwealth v. L.N., 787 A.2d 1064 (Pa.Super. 2001).

       Appellant exercised his right of allocution and apologized for his

criminal conduct.                   (Notes of testimony, 3/30/16 at 8.)          The trial court

acknowledged certain mitigating factors weighing in appellant's favor but

ultimately concluded that the serious nature of the offenses, including the

fact that most of the establishments appellant robbed at gunpoint were

frequented by young people, warranted                      a   more severe sentence:

                 .    .    other words, these are places, particularly
                           .   in
                 these GameStop facilities, and Play N Trade, which,
                 like I said, is the same basic operation, and the
                 Turkey Hill Market, which are locations frequented by
                 younger people. A lot of them involved in these
                 video games are young men who are not particularly
                 known to use excellent judgement and you going in
                 there with this weapon presented a grave risk of
                 danger of death or serious injury, not only to the
                 clerks, but, also, to any customer in the store who
                 decided that now is his time to step up and do
                 something, thereby, provoking further violence. I
                 have also considered, simply, the number of these
                 offenses. This was not a once stop and done, you
                 have had six of these violent offenses.        I have
                 considered your rehabilitative needs, particularly the
                 fact at the time you were using heroin.



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Id. at 13-14.
                      Particularly, the idea that, well, heroin made
               me do it and what's the problem? None of these
               people were actually hurt. Unfortunately it was not
               for lack of effort on your part that no one was hurt.
               When you go into these types of establishments with
               this type of weapon, I believe it was a bb gun, or
               something, it looks just like a real gun. No police
               officer walking by is going to sit there and say: Well,
               there is somebody holding up a GameStop with a
               gun. I think I'll take the chance that that's a bb gun
               and it is not loaded, rather than the fact that it is a
               [G]lock nine and it is loaded. That's what provokes
               serious danger of death or bodily injury to
               everybody. You just can't do this sort of thing.

Id. at   15.

                      I understand you're going through this course
               at the a [sic] State correctional institution, I forget
               what they call it, victim empathy or victim impact or
               whatever it is. And that is certainly commendable,
               but, the difficulty is, essentially, what your attorney
               seems to be seeking on your behalf is a volume
               discount. If you go out and commit six armed
               robberies, that's no worse than if you went out and
               committed one.        That's what running all these
               sentences in a concurrent manner would mean and I
               think that is completely inappropriate. As I have told
               other people, I would not wish drug addiction on my
               worst enemy, but that's not an excuse for
               endangering members of the community in this type
               of spree.      If you have had a substance abuse
               problem since you were ten years old, you have had
               a significant period of time in which to address that
               problem. You were in the White Deer Run Program
               and in the Gatehouse Program. These offenses were
               committed after you got out of those two programs.
               So it is not that you weren't given, or were denied an
               opportunity to have treatment for your addiction. It
               simply didn't take or you simply did not commit to
               the treatment. The situation you find yourself in you
               brought on yourself.        And I consider, as an
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              aggravating factor, the number of offenses that you
              have committed.

Id. at   16 -17.

         The trial court placed sufficient reasons on the record justifying an

aggravated range sentence on five of the six robbery charges. We also note

that the trial court could have run all six counts consecutively, resulting    in a

much longer sentence.         See Commonwealth v. Hoag, 665 A.2d 1212,

1214 (Pa.Super. 1995) (a challenge to the court's imposing consecutive

rather than concurrent sentences does not present          a   substantial question

regarding the discretionary aspects of sentence and an appellant is not

entitled to   a    "volume discount" for his crimes by having his sentences run

concurrently (citation omitted)).         It cannot   be   said   that appellant's

aggregate sentence of 13 to 30 years' incarceration was unreasonable under

the circumstances.        Appellant's discretionary aspects of sentencing claim

fails.

         Judgment of sentence affirmed.

Judgment Entered.



     /
Joseph D. Seletyn,
Prothonotary

Date: 1/17/2017




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