J-S16011-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROBERT STEVEN HUTCHINSON                   :
                                               :
                       Appellant               :   No. 1842 MDA 2018

     Appeal from the Judgment of Sentence Entered September 27, 2018
               In the Court of Common Pleas of Berks County
            Criminal Division at No(s): CP-06-CR-0000659-2017


BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                    FILED JULY 03, 2019

       Robert Steven Hutchinson appeals from the judgment of sentence

imposed September 27, 2018, in the Berks County Court of Common Pleas,

made final by the denial of post-sentence motions on October 10, 2018. On

September 26, 2018, a jury convicted Hutchinson of possession with intent to

deliver a controlled substance (“PWID”), possession of a controlled substance

(heroin), and possession of a small amount of marijuana.1              The court

subsequently sentenced Hutchinson to a term of three to 20 years’ incercation.

On appeal, Hutchinson raises weight of the evidence and discretionary aspects

of sentencing claims.       For the reasons below, we affirm the judgment of

sentence.


____________________________________________


1   See 35 Pa.C.S. §§ 780(a)(30), (a)(16), and (a)(31)(i), respectively.
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     The trial court set forth the findings of facts as follows:

            On January 21, 2017 at 2:30 a.m., Officer Daniel White
     (“Officer White”), a police officer of the City of Reading Police
     Department, was on patrol in a marked police vehicle. At that
     time, Officer White received radio transmission that a possible
     fight was in progress at a bar located at the corner of 7th and Pine
     Street. Officer White in his marked vehicle, headed to 7th and
     Pine Street.

            When Officer White arrived at the vicinity of the bar, he
     noticed that a crowd was dispersing. While Officer White was
     driving south in the block, a male, who later was identified as
     Robert Hutchinson …, was walking down the sidewalk, made eye
     contact with Officer White. As soon as [Hutchinson] made eye
     contact with Officer White, [Hutchinson] reached his hand into the
     front of his pants. Officer White, based on his experience and
     training as a police officer, suspected [Hutchinson] was reaching
     for a weapon. Officer White then exited the patrol vehicle in
     search of [Hutchinson] and located [him] on the sidewalk. After
     [Hutchinson] noticed Officer White, [he] turned around and began
     to quickly walk away from the officer. Officer White pulled his
     weapon suspecting that [Hutchinson] was armed when he noticed
     [Hutchinson] still had his hand inside the front of his pants.

            Officer White was 10 to 15 feet away from [Hutchinson] and
     the city lights were on, when he observed [Hutchinson] pulling out
     a clear plastic bag from his pants and throwing off the bag to the
     side which landed in between the sidewalk and a parked vehicle.
     Officer White observed that multiple small white bundles were
     inside the plastic bag when [Hutchinson] discarded the clear
     plastic bag. Due to the way of packaging, Officer White suspected
     the plastic bag to contain a controlled substance. Officer White
     immediately proceeded near to the area where the clear plastic
     bag landed to confirm what he had seen. Then Officer White called
     out to other officers on site to stop [Hutchinson], and soon
     [Hutchinson] was detained by the officers.

            Officer White asked [Hutchinson] if he had anything to tell
     the officer but [Hutchinson] responded “no”. After Officer White
     searched [Hutchinson], a bag of green vegetable matter, what
     later was determined as marijuana, was found in the rear pocket
     of [Hutchinson]’s pants. Inside the bag, there were four smaller
     individually packed marijuana bags. Also, $90 in cash was found

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       in the front pocket of [Hutchinson]’s pants. A cellphone was also
       recovered from [Hutchinson]’s person. Officer White, after chain
       of custody was established, later retrieved the clear plastic bag
       [Hutchinson] discarded. Inside the clear plastic bag, there were
       10 bundles of 10 individual baggies of white substance which later
       were determined as Heroin.

             At trial, Criminal Investigator Brian Errington (“Investigator
       Errington”), an expert in the field of illegal drugs and drug
       investigations, expressed his opinion that the 10 bundles which
       were discarded by [Hutchinson] at the scene were possessed with
       the intent to deliver. Investigator Errington’s opinion was based
       on factors such as the amount of heroin, lack of paraphernalia,
       $90 cash found in [Hutchinson]’s person, [Hutchinson] carrying
       the heroin shoved inside his pants, and [Hutchinson] carrying a
       cell phone.      Investigator Errington testified that collectively
       considering all these factors led him to the conclusion that the 10
       bundles were possessed with the intent to deliver.

Trial Court Opinion, 12/4/2018, at unnumbered 2-3 (record citations omitted).

       Hutchinson was charged with offenses relating to the incident and the

matter proceeded to a one-day jury trial on September 26, 2018. The jury

found him guilty of PWID and possession of a controlled substance.

Separately, the court, sitting as the fact-finder, convicted him of possession

of a small amount of marijuana. The following day, the trial court sentenced

Hutchinson to a term of three to 20 years’ incarceration for the PWID

conviction and a fine of $300.00 for the small amount of marijuana offense.2




____________________________________________


2 The possession of a controlled substance conviction merged with PWID for
sentencing purposes.




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On October 9, 2018, Hutchinson filed a post-sentence motion3 challenging the

weight of the evidence regarding the PWID conviction and seeking

modification of his sentence as excessive and contrary to the sentencing code.

The court denied Hutchinson’s motion on October 10, 2018.            This timely

appeal followed.4

       Hutchinson’s first issue on appeal challenges the weight of the evidence

supporting his conviction for PWID.5             See Hutchinson’s Brief at 21.

Specifically, he states:

             At trial, CI Errington was permitted to testify as an expert
       in the field of illegal drugs and drug investigation and opined that
       [Hutchinson] possessed the intent to deliver based on the
       testimony presented at trial. A review of the factors cited by CI
       Errington present only ambiguous proof of this assertion and
       certainly not proof beyond a reasonable doubt. These factors
       included 1) the amount, 2) the lack of paraphernalia, 3) the
       manner in which the drugs were carried, 4) the presence of a cell
       phone, and 5) the $90 cash found on [Hutchinson].                 CI
       Errington[’s] testimony was both internally inconsistent and relied
       upon factors that carry little, if any, weight.




____________________________________________


3 The post-sentence motion was timely filed as the 10th day fell on a weekend
and the following Monday was a national holiday. See 18 Pa.C.S. § 1908;
Hutchinson’s Brief at 6 n.5.

4  On November 8, 2018, the trial court ordered Hutchinson to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Hutchinson filed a concise statement on November 27, 2018. The trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on December 4, 2018.

5 Hutchinson properly preserved his weight claim in a post-sentence motion.
See Pa.R.Crim.P. 607(A)(3).

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Hutchinson’s Brief at 22-23. Furthermore, he alleges two of the factors relied

upon by CI Errington, “the manner in which the drugs were carried and the

possession of $90[.00], were essentially reiterations of factors that had

already been cited and testified about at length” with respect to the amount

of drugs and the lack of drug paraphernalia. Id. at 23. Hutchinson states:

     For example, CI Errington testified that a “[t]ypical user will not
     carry their heroin or dope in their pants, stuffed down away,
     unless they see a police officer, then they hide it real quick.
     Typical user will keep it readily accessible in a pocket right with
     their kit.” Not only does CI Errington’s explanation [] not make a
     great deal of sense or explain how shoving one’s drugs down one’s
     pants makes them not readily accessible, it provided little
     substance aside from merely reiterating and highlighting the lack
     of paraphernalia. A review of the record shows that this factor
     was largely viewed in conjunction with the lack of paraphernalia,
     as CI Errington seemed to focus [on] the fact that [Hutchinson]
     did not possess a “kit” for a second time. Furthermore, CI
     Errington’s own testimony stated that a typical user may carry
     their drugs in this manner if they saw a police officer, which
     essentially mirrors the circumstances about which Officer White
     testified.

            CI Errington also relied on the fact that $90[.00] was found
     on [Hutchinson] at the time of his arrest. However, he stated that
     this factor is “viewed in conjunction with the amount of heroin.”
     It is quite obvious that this relatively small amount of cash is not
     indicative of drugs sales and should be given little weight despite
     the expert testimony.

Id. at 23-24 (record citations omitted). Additionally, Hutchinson contends:

           The final factor, the presence of a cell phone, does
     absolutely nothing to show that [Hutchinson] possessed heroin
     with intent to deliver. Obviously, cell phones are prevalent in
     today’s society and to give this factor any weight at all ignores
     this reality. In fact, CI Errington largely recognized the limited
     probative value [of] this in his testimony.




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            Furthermore, the search conducted on [Hutchinson]’s cell
      phone turned up little evidence of heroin dealing aside from a
      handful of vague references and use of the term “dub.” The cell
      phone dump did not result in the amount or type of evidence one
      would expect to find in the phone of a drug dealer. Furthermore,
      CI Errington conceded that the alleged ‘drug talk’ was so minimal
      that he did not rely on it in forming his opinion.

Id. at 25 (record citations omitted). Lastly, he argues:

            The expert opinion rendered by CI Errington was internally
      inconsistent and failed to explain how the lack of paraphernalia
      related to the marijuana found on [Hutchinson]. [He] was
      charged with possession of two controlled substances, heroin and
      marijuana.      Both substances were allegedly possessed by
      [Hutchinson] and both were packaged in multiple bags that
      appeared to contain the same measured amount. However,
      [Hutchinson] was only charged and convicted of possession with
      intent to deliver heroin.

Id. at 26.

      Our review of a challenge to the weight of the evidence supporting the

verdict is well-settled

      When reviewing a challenge to the weight of the evidence, we
      review “the trial court’s exercise of discretion.” Commonwealth
      v. Johnson, 2018 PA Super 193, 192 A.3d 1149, 1152-53 (Pa.
      Super. 2018) (citing Commonwealth v. Hicks, 151 A.3d 216,
      223, 2016 PA Super 257 (Pa. Super. 2016)). A reversal of a
      verdict is not necessary “unless it is so contrary to the evidence
      as to shock one’s sense of justice.” Id. at 1153. “The weight of
      the evidence is exclusively for the finder of fact, who is free to
      believe all, none or some of the evidence and to determine the
      credibility of the witnesses.” Commonwealth v. Cramer, 2018
      PA Super 248, 195 A.3d 594, 600 (Pa. Super. 2018) (citation
      omitted). The fact-finder also has the responsibility of “resolving
      contradictory testimony and questions of credibility.” Id. (citation
      omitted). We give great deference to the trial court’s decision
      regarding a weight of the evidence claim because it “had the
      opportunity to hear and see the evidence presented.” Id. (citation
      omitted).


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Commonwealth v. Roane, 204 A.3d 998, 1001 (Pa. Super. 2019).

      Here, the trial court found the following:

      Here, [Hutchinson] misapplies the standard, as the question is not
      if there are inconsistencies in the evidence and if the records
      support a possibility that [Hutchinson] did not have the intent to
      deliver Heroin.        Investigator Errington specifically noted
      specifically five factors, amount of heroin, lack of paraphernalia,
      $90 cash found in [Hutchinson]’s person, [Hutchinson] carrying
      the heroin shoved inside his pants, and [Hutchinson] carrying a
      cell phone in reaching his opinion of [Hutchinson] having the
      intent to deliver Heroin. Whether the jury considered all five
      factors indicative of intent to deliver or only part of them is
      unknown. However, it is clear from the record that the jury had
      reason to believe [Hutchinson] discarded a large bag which
      contained 100 small packets of heroin which were worth $1000.
      Those packets were all individually packaged and [Hutchinson] did
      not have paraphernalia in person at the time of the search and
      arrest. Also, there were multiple facts provided by Investigator
      Errington in the record that suggested [Hutchinson] possessed
      Heroin with intent to deliver rather than personal use. Therefore,
      the jury’s verdict finding [Hutchinson] guilty of Possession of
      Heroin with Intent to Deliver is supported by clear evidence and
      therefore this Court did not abuse its discretion in denying the
      motion.

Trial Court Opinion, 12/4/2018, at unnumbered 4-5.

      Bearing in mind our standard of review, we agree with the court’s sound

rationale and find Hutchinson has failed to establish the trial court abused its

discretion in denying his challenge to the weight of the evidence. See Roane,

supra. While Hutchinson attempts to discredit CI Errington’s expert opinion

by attacking some of the factors he used to form his opinion with Hutchinson’s

own explanation for the legitimate presence, or lack thereof, of these items,

the expert witness testified that all of the five factors, “collectively [led him]

to render the decision these [ten] bundles were possessed with the intent to

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deliver.” N.T., 9/26/2018, at 101. The jury, sitting as the fact-finder, was

“free to believe all, none or some of the evidence and to determine the

credibility” of the witness.   Cramer, 195 A.3d at 600.       As the trial court

indicated in its opinion, the evidence presented at trial demonstrated that after

making eye contact with the investigating officer, Hutchinson discarded a large

bag, which contained 100 small packets of heroin with a street value of

$1,000.00. The packets were all individually packaged and Hutchinson did

not possess any drug paraphernalia on his person to suggest personal use.

Accordingly, we conclude Hutchinson failed to demonstrate the trial court

abused its discretion in denying his weight of the evidence challenge.

      Next, Hutchinson claims the court “erred and abused its discretion when

it imposed a sentence that was greater than that which was necessary for

protection of the public, the gravity of the offense as it related to the impact

on[] the life of the victim and on the community, and the rehabilitative needs

of [Hutchinson]” as set forth in 42 Pa.C.S. § 9721(b). Hutchinson’s Brief at

28.

      Hutchinson’s second issue concerns a challenge to the discretionary

aspects of his sentence, and, accordingly, is not appealable as of right, but

“must be considered a petition for permission to appeal.” Commonwealth

v. Best, 120 A.3d 329, 348 (Pa. Super. 2015) (quotation omitted). To reach

the merits of a discretionary issue, this Court must determine:

      (1) whether the appeal is timely; (2) whether Appellant preserved
      [the] issue; (3) whether Appellant’s brief includes a concise

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       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 sentencing code.

Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)

(citation omitted), appeal denied, 81 A.3d 75 (Pa. 2013).

       Hutchinson complied with the procedural requirements for this appeal

by filing a timely post-sentence motion for modification of sentence, and

subsequent notice of appeal, and by including in his appellate brief a

statement of reasons relied upon for appeal pursuant to Commonwealth v.

Tuladziecki, 522 A.2d 17 (Pa. 1987), and Pa.R.A.P. 2119(f). 6 Therefore, we



____________________________________________


6   Additionally, in his brief, Hutchinson contends:

       [The trial court] abused its discretion when it imposed an
       aggravated range sentence which was greater than necessary for
       protection of the public, the gravity of the offense as it related to
       its impact on the community, and the rehabilitative needs of
       [Hutchinson]. In doing so, the court relied on impermissible
       factors to support its imposition of a sentence outside of the
       standard guideline range and in the aggravated range.
       Specifically, [Hutchinson] believes the lower court erred by
       “double counting” his prior record, resulting in an excessive
       sentence which is inconsistent with the Sentencing Code.

Hutchinson’s Brief at 30. A review of the record reveals that he did not raise
a “double counting” argument at sentencing, in his post-sentence motion, or
in his concise statement. Accordingly, he has waived this part of his
argument. See Commonwealth v. Malovich, 903 A.2d 1247, 1251 (Pa.
Super. 2006) (“To preserve an attack on the discretionary aspects of
sentence, an appellant must raise his issues at sentencing or in a post-
sentence motion. Issues not presented to the sentencing court are waived
and cannot be raised for the first time on appeal.”) (citations omitted); see
also Pa.R.A.P. 1925(b)(4)(vii).

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must determine whether he has raised a substantial question justifying our

review.

      A substantial question exists when an appellant sets forth “a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)

(citation omitted). Here, Hutchinson alleges the trial court failed to adequately

consider the factors set forth in Section 9721(b). An allegation that the court

failed to consider the “relevant sentencing criteria” set forth in Section

9721(b) raises a substantial question for our review.      Commonwealth v.

Riggs, 63 A.3d 780, 786 (Pa. Super. 2012), appeal denied, 63 A.3d 776 (Pa.

2013). Accordingly, we find Hutchinson has raised a substantial question for

our review.

      The standard of review for a claim challenging a discretionary aspect of

sentencing is well-established:

            Sentencing is a matter vested in the sound discretion of the
      judge, and will not be disturbed on appeal absent a manifest abuse
      of discretion. 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. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation

omitted), appeal denied, 980 A.2d 607 (Pa. 2009).

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       Moreover, pursuant to 42 Pa.C.S. § 9721(b), “the court shall follow the

general principle that the 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. § 9721(b). Additionally,

“the court shall make as part of the record, and disclose in open court at the

time of sentencing, a statement of the reason or reasons for the sentence

imposed.” Id. The record in toto “must reflect the [trial] court’s consideration

of the facts of the crime and character of the offender.” Commonwealth v.

Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010), appeal denied, 13 A.3d 475

(Pa. 2010).7 “In particular, the court should refer to the defendant’s prior

criminal record, his age, personal characteristics and his potential for

rehabilitation.”    Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super.

2002), appeal denied, 868 A.2d 1198 (Pa. 2005), cert denied, 545 U.S. 1148

(2005).

       A review of the record reveals the following. The trial court had the

benefit of the pre-sentence investigation as well as an update regarding

Hutchinson’s prior record score. See N.T., 9/27/2018, at 2-3. At the time of

sentencing, Hutchinson had a prior record score of five, and the offense



____________________________________________


7 A trial court “need not undertake a lengthy discourse for its reasons for
imposing a sentence or specifically reference the statute in question[.]”
Crump, 995 A.2d at 1283.

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gravity score for the PWID conviction was seven. Id. at 4. The applicable

sentencing guidelines provide that the standard range for such an offense is

24 to 30 months, an upward deviation of six months for the aggravated range,

and downward deviation of six months for the mitigated range. Id. at 5. The

Commonwealth noted:

            According to the P.S.I., going all the way back to 2003,
      [Hutchinson] was sentenced to state prison for selling drugs. That
      did not deter his criminal conduct because he was then convicted
      in the federal system for distribution of crack cocaine. He was
      sentenced to federal prison and a term of supervised release. And
      the federal prison sentence and the federal period of supervised
      release did not deter [Hutchinson]’s criminal conduct. It seems
      that nothing will stop him from selling drugs except a lengthy
      period of incarceration. Certainly, the fact that he was on
      supervised release at the time he committed this new offense, in
      the Commonwealth’s view, is an aggravating factor.

             [Hutchinson], according to his statement to Officer White as
      indicated in the probable cause, was that he was unemployed at
      the time. That leads the Commonwealth to believe, as well as his
      prior lengthy prior record, this is how he makes his money. He’s
      a drug dealer, and he’s been a drug dealer for 15 years or better.

Id.

      The court also heard from defense counsel who stated that Hutchinson

had been working for approximately six months, he has a family, and he had

not gotten into any trouble since the arrest. Id. at 7. Hutchinson also spoke

at the sentencing:

      [S]ince I’ve been out of incarceration in federal prison, I’ve been
      doing the right thing. I’m saying to you that I’m honest-living. I
      was innocent that night. I’ve been working. The night of that
      arrest, I was collecting unemployment. I’d been working on the
      union. I just got a new job back in May working for Provantage
      Corporation, working my way up to be a supervisor. I have 3 kids,

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      an … 8-year-old, 11-year-old, 7-month-old. And honest to God, I
      changed my life around when I got sentenced [in] 2010. I’m not
      a drug dealer. I was just at the wrong place at the wrong time.
      And since I’ve been out on bail, I’ve been coming up to court. I’m
      not a flight risk.

Id. at 8-9.

      At the conclusion of the hearing, the court set forth its rationale:

      It is difficult to argue with [the Commonwealth’s] analysis of the
      fact that this is how you have been making your living for a very
      long time. Time that you weren’t getting in trouble, it appears
      those were times when you were imprisoned for doing this drug
      selling. And it appears in this particular case relatively soon after
      being released from federal custody and while still under federal
      supervision, you went right back to selling drugs.

                                       …

      I’m taking into account the fact that [Hutchinson] took the stand
      in his own defense, which is, of course, his absolute right under
      our law, and he testified in such a way as to, in effect, although
      he never used the term, accused the police officers in the case of
      committing perjury. Contrary to that, of course, the jury found
      that [Hutchinson] is the one who was speaking untruths in his
      testimony, and a defendant’s mendacity, under these
      circumstances, is something that the Court may take into account;
      and I will.

             [Hutchinson]’s history here of over 15 years of drug dealing
      is also something I’m taking into account because the prior record
      score does not reflect that. That only reflects various levels of
      previous convictions.

             I will, for those reasons, since it appears the only way to
      prevent [Hutchinson] from this conduct is to incarcerate him, I will
      sentence [Hutchinson] as follows at No. 659 of 2017, Count 1,
      [he] is committed for a period of not less than 3 nor more than 20
      years to the Bureau of Corrections. He is RRRI eligible, and his
      minimum is 27 months.

                                       …


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             At Count 3, [Hutchinson] is sentenced to pay a fine in the
         amount of $300[.00] and costs.

Id. at 9-11.

         In the Rule 1925(a) opinion, the trial court found the following:

         [Hutchinson] frivolously avers this Court erred and abused its
         discretion in imposing a sentence that was greater than that which
         was necessary for 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 [d]efendant.

         Here, [Hutchinson] fails to address any specific facts to the issue
         raised but rather states a mere conclusion of law. This Court
         specifically took notice of [Hutchinson]’s willingness to offer
         perjured testimony at trial and [Hutchinson]’s prior record of drug
         dealing starting back 15 years.

         This court also addressed that only incarceration of [Hutchinson]
         would deter [him] from drug dealing conduct. Only after taking
         the above factors in to [sic] account, this Court imposed sentence.
         Therefore, this Court did not abuse its discretion as the sentencing
         was not a result of a manifestly unreasonable decision.

Trial Court Opinion, 12/4/2018, at unnumbered 5-6.

         Based upon our standard of review, we conclude the trial court did not

abuse its discretion with regard to Hutchinson’s sentence.            Contrary to

Hutchinson’s argument, it is evident from the sentencing hearing and the Rule

1925(a) opinion that the court did indeed consider the required factors under

Section 9721(b). Moreover, the court acknowledged its understanding of the

sentencing guidelines, and articulated a sufficient statement of reasons for

sentencing as it did. Therefore, Hutchinson’s discretionary sentencing claim

fails.




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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/3/2019




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