J-S40009-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    MIKE LYONS,

                             Appellant               No. 1599 WDA 2018


       Appeal from the Judgment of Sentence Entered November 21, 2017
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0015265-2012

BEFORE: BENDER, P.J.E., MCLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED OCTOBER 03, 2019

        Appellant, Mike Lyons, appeals nunc pro tunc from the judgment of

sentence of 30 to 60 months’ incarceration, followed by two years’ probation,

imposed after his sentence of probation was revoked due to his violating the

conditions thereof. On appeal, Appellant solely challenges the discretionary

aspects of his new sentence, contending that the court failed to meaningfully

consider the mitigating factors in his case. After careful review, we affirm.

        The trial court briefly summarized the pertinent facts and procedural

history, as follows:

        On December 12, 2013, pursuant to a plea agreement, Appellant
        … pled guilty to one count each of Possession With Intent to
        Deliver, Possession (Cocaine), Tampering with or Fabricating

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S40009-19


       Physical Evidence, and Possession of Drug Paraphernalia. 1 This
       [c]ourt sentenced Appellant in accord with the plea agreement to
       18 months of intermediate punishment (House Arrest)[,] followed
       by 54 months of consecutive probation. On November 21, 2017,
       this [c]ourt found Appellant to have violated the terms of his
       probation.[1] This [c]ourt revoked Appellant’s probation and
       resentenced Appellant to 30 to 60 months of incarceration, with a
       consecutive two-year term of probation. The Post-Sentence
       Motion and appeal periods lapsed. However, on October 29, 2018,
       this [c]ourt reinstated appellate rights. On November 2, 2018,
       Appellant filed a Post-Sentence Motion, which this [c]ourt denied
       on November 6, 2018. Appellant filed a Notice of Appeal on
       November 13, 2018[,] and a [Pa.R.A.P. 1925(b)] Concise
       Statement of Errors Complained Of on November 19, 2018.
          1 35 Pa.C.S. § 780-113(a)(30), 35 Pa.C.S. § 780-
          113(a)(16), 18 Pa.C.S. § 4910(1), and 35 Pa.C.S. § 780-
          113(a)(30), respectively.

Trial Court Opinion (TCO), 3/29/19, at 2-3. The trial court filed a Rule 1925(a)

opinion on March 29, 2019.

       Herein, Appellant states one issue for our review: “Whether the [c]ourt

erred in denying [Appellant’s] post[-]sentence motion when the record shows

that the [c]ourt abused its discretion by sentencing [Appellant] without

meaningful      consideration     of   numerous     mitigating    factors,   including

[Appellant’s]    education,     rehabilitation   efforts,   vocational   training   and

employment history?” Appellant’s Brief at 3.

       Appellant’s issue implicates 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.
       Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant

____________________________________________


1More specifically, Appellant was arrested and charged with new, drug-related
offenses shortly after he began serving his sentence of house arrest. See N.T.
Revocation/Resentencing Hearing, 11/21/17, at 3, 5.

                                           -2-
J-S40009-19


     challenging the discretionary aspects of his sentence must invoke
     this Court’s jurisdiction by satisfying a four-part test:

        We conduct a four-part analysis to determine: (1) whether
        [the] 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 [the]
        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.[] § 9781(b).

     Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),
     appeal denied, 589 Pa. 727, 909 A.2d 303 (2006). Objections to
     the discretionary aspects of a sentence are generally waived if
     they are not raised at the sentencing hearing or in a motion to
     modify the sentence imposed. Commonwealth v. Mann, 820
     A.2d 788, 794 (Pa. Super. 2003), appeal denied, 574 Pa. 759, 831
     A.2d 599 (2003).

     The determination of what constitutes a substantial question must
     be evaluated on a case-by-case basis. Commonwealth v. Paul,
     925 A.2d 825, 828 (Pa. Super. 2007). A substantial question
     exists “only when the appellant advances a colorable argument
     that the sentencing judge’s actions were either: (1) inconsistent
     with a specific provision of the Sentencing Code; or (2) contrary
     to the fundamental norms which underlie the sentencing process.”
     Sierra, supra at 912–13.

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).

     Here, Appellant filed a timely notice of appeal after his appellate rights

were reinstated, and he preserved his sentencing claim in his post-sentence

motion. Appellant has also included a Rule 2119(f) statement in his brief to

this Court. See Appellant’s Brief at 10-11. Therein, he contends that the

court abused its discretion in fashioning his sentence because it “imposed a

period of incarceration solely to punish repeat behavior[,]” while ignoring


                                    -3-
J-S40009-19



mitigating factors, such as Appellant’s work history, that he obtained his GED,

and his other efforts to rehabilitate himself. Id. at 10, 11. Appellant concedes

that the court had the benefit of a pre-sentence report, but he claims that “the

record fails to demonstrate that the [c]ourt did in fact review [it].” Id. at 10.

      Appellant’s argument does not constitute a substantial question for our

review. Initially, the court explicitly declared at the sentencing hearing that

it “read the presentence report.”        N.T. Revocation/Resentencing at 4.

Moreover, “[t]his Court has held on numerous occasions that a claim of

inadequate consideration of mitigating factors does not raise a substantial

question for our review.” Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa.

Super. 2013) (quoting Commonwealth v. Downing, 990 A.2d 788, 794 (Pa.

Super. 2010) (citation omitted)). We acknowledge that our “Court has also

held that ‘an excessiveness claim — in conjunction with an assertion that the

court failed to consider mitigating factors — raises a substantial question.’”

Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015).

However, at no point in Appellant’s Rule 2119(f) statement does he contend

that his sentence is excessive. Accordingly, he has not raised a substantial

question for our review.

      In any event, even had Appellant presented a substantial question, we

would reject his sentencing challenge on the merits.       At the resentencing

hearing, the court stressed that it had originally sentenced Appellant to house

arrest in order to give him the “opportunity to remain in the community as a

productive member of the community and support his family….”                N.T.

                                      -4-
J-S40009-19



Revocation/Resentencing at 8. Nevertheless, Appellant repeated essentially

the same, drug-related criminal conduct while serving that mitigated

sentence.    Id.    The court observed that Appellant “was no longer a child

making poor decisions” but “was an adult[,]” and that he “continues to choose

to violate the law and place other people at risk.” Id. Accordingly, it imposed

a sentence of incarceration that was “in the standard range of the guidelines

originally.” TCO at 6.2

       On appeal, Appellant claims that the trial court erred by focusing on the

risk of his re-offending, instead of the mitigating circumstances of his case.

For instance, Appellant stresses that he was 42 years old at the time of

sentencing, and he cites data suggesting that older individuals are less likely

to commit new crimes. See Appellant’s Brief at 13-14. Notably, however,

Appellant did not present that data and argument to the trial court at the

sentencing proceeding. Similarly, he did not argue to the trial court, as he

now does on appeal, that it should have placed greater weight on his obtaining

his GED, as “[d]ata published by the United States Sentencing Commission

shows that education levels impact rates of recidivism.” Id. at 14. Appellant

cannot obtain relief by raising novel claims that he did not present to the

sentencing court. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court

are waived and cannot be raised for the first time on appeal.”).
____________________________________________


2 The court notes that, “[w]hile the Sentencing Guidelines do not apply to
resentencing, this [c]ourt mentions the guidelines for purpose of indicating
that the sentence imposed for the convicted violation would have been a
standard range sentence if imposed originally.” TCO at 6 n.2.

                                           -5-
J-S40009-19



     Additionally, as the trial court points out, our Supreme Court has held

that “[w]here pre-sentence reports exist, we shall continue to presume that

the sentencing judge was aware of relevant information regarding the

defendant’s character and weighed those considerations along with mitigating

statutory factors.” TCO at 5 (quoting Commonwealth v. Devers, 546 A.2d

12, 18 (Pa. 1988)). Consequently, the record before us demonstrates that

the court considered the mitigating factors in this case, but weighed more

heavily the risk that Appellant poses to the community by his continued

criminal conduct, and his apparent unwillingness to rehabilitate. Therefore,

we would discern no abuse of discretion in the court’s sentencing decision.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/3/2019




                                    -6-
