J-S78038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

TERESA M. YURCICH SHANNON

                             Appellant                 No. 655 WDA 2016


          Appeal from the Judgment of Sentence Entered April 7, 2016
        in the Court of Common Pleas of Mercer County Criminal Division
                        at No(s): CP-43-CR-0001336-2015

BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:                      FILED JANUARY 13, 2017

        Appellant, Theresa M. Yurcich Shannon, appeals from the judgment of

sentence entered in the Mercer County Court of Common Pleas following her

guilty plea to one count of conspiracy to commit robbery, graded as a first

degree felony.1      Appellant challenges the discretionary aspects of his

sentence. We affirm.

        On August 27, 2015, Appellant was arrested and charged with robbery

and conspiracy to commit robbery in connection with the armed robbery of




*
    Former Justice specially assigned to the Superior Court.
1
  18 Pa.C.S. § 903(a); See also 18 Pa.C.S. § 3701(a)(1)(ii). Robbery takes
place under section 3701(a)(1)(ii) when, in the course of committing a theft,
the defendant “threatens another with or intentionally puts him in fear of
immediate serious bodily injury[.]” Id. Robbery under this subsection is a
felony of the first degree. 18 Pa.C.S. § 3701(b)(1). The conspiracy charge
had the same grade as the robbery charge. See 18 Pa.C.S. § 905(a).
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Marco’s Pizza one day earlier. Appellant, a former employee of the pizzeria,

was the getaway driver.

      Appellant entered an open guilty plea to conspiracy to commit robbery

on February 18, 2016.      The Commonwealth agreed to nolle prosse the

robbery charge.

      On April 7, 2016, the trial court sentenced Appellant to twenty-four to

sixty months’ imprisonment.     The court reviewed Appellant’s pre-sentence

investigative report before imposing sentence.          N.T. Sentencing Hr’g,

4/7/16, at 5.     Appellant’s minimum sentence of twenty-four months was

within the standard guideline range of eighteen to thirty months. Id. at 11.

      On April 14, 2016, Appellant filed timely post-sentence motions

asserting that her sentence was excessive.         The court denied Appellant’s

post-sentence motions. On May 3, 2016, Appellant timely appealed. Both

Appellant and the court complied with Pa.R.A.P. 1925.

      Appellant raises one issue in this appeal:

         Did the sentenc[ing] court abuse its discretion by imposing
         a sentence of not less than twenty-four (24) nor more than
         sixty (60) months for the offense of criminal conspiracy to
         commit robbery, a felony of the first degree, in that said
         sentence is manifestly excessive in length and not
         specifically tailored for the rehabilitative needs of. . .
         [A]ppellant or the ends of justice and society?

Appellant’s Brief at 5.

      Appellant contends that her sentence is excessive for three reasons:

(1) her co-defendant, Brandon Williams, who actually committed the



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robbery, received a shorter minimum sentence of twenty-two months’

imprisonment; (2) Appellant acknowledged her mistake and was unlikely to

re-offend; and (3) the court failed to consider that Appellant had a five-

month-old child with Williams and now needs to rely on friends and relatives

to care for the child. We conclude that no relief is due.

      Challenges to the discretionary aspects of sentencing

         do not entitle an appellant to appellate review as of right.
         Prior to reaching the merits of a discretionary sentencing
         issue:

            [w]e conduct a four part analysis to determine: (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).

         Objections to the discretionary aspects of a sentence are
         generally waived if they are not raised at the sentencing
         hearing or raised in a motion to modify the sentence
         imposed at that hearing.

Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa. Super. 2006)

(quotation marks and punctuation omitted). A Rule 2119(f) statement

         must specify where the sentence falls in relation to the
         sentencing guidelines and what particular provision of the
         Code is violated (e.g., the sentence is outside the
         guidelines and the court did not offer any reasons either on
         the record or in writing, or double-counted factors already
         considered). Similarly, the Rule 2119(f) statement must




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         specify what fundamental norm the sentence violates and
         the manner in which it violates that norm . . . .

Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en

banc). “Our inquiry must focus 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.    “A claim that a sentence is

manifestly excessive such that it constitutes too severe a punishment raises

a substantial question.” Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa.

Super. 2011) (citation omitted).

      Here, Appellant timely appealed, preserved the issue in her post-

sentence motion, and included a Pa.R.A.P. 2119(f) statement in her brief.

See Evans, 901 A.2d at 533. We reproduce the entirety of Appellant’s Rule

2119(f) statement below:

         Appellant believes that a substantial question is involved
         concerning the legality of her sentence because the
         sentence [sic] court erred in imposing a sentence of not
         less than twenty four (24) nor more than sixty (60)
         months of the offense of criminal conspiracy to commit
         robbery, in that the sentence was manifestly excessive in
         length and not specifically tailored to the rehabilitative
         needs of the . . . [A]ppellant or the ends of justice and
         society.

Appellant’s Brief at 8. Appellant fails to indicate where her sentence fell in

the sentencing guidelines. See Goggins, 748 A.2d at 727. Appellant,

however, has asserted that her sentence was excessive and overly severe

under the circumstances. We conclude Appellant has raised a substantial




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question.    See Kelly, 33 A.3d at 640; Evans, 901 A.2d at 533-34.

Accordingly, we examine the merits.

       This Court has stated:

         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.

Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation

omitted).    In making a reasonableness determination, a court should

consider four factors: (1) the nature and circumstances of the offense and

the history and characteristics of the defendant; (2) the opportunity of the

sentencing court to observe the defendant, including any presentence

investigation; (3) the findings upon which the sentence was based; and (4)

the guidelines promulgated by the commission.     42 Pa.C.S. § 9781(d)(1)-

(4).

       A sentence may be found to be unreasonable if it fails to properly

account for these four statutory factors, or if it “was imposed without

express or implicit consideration by the sentencing court of the general

standards applicable to sentencing[.]” Commonwealth v. Walls, 926 A.2d

957, 964 (Pa. 2007). These general standards mandate that a sentencing

court impose a sentence “consistent with the protection of the public, the



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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).

      “[W]here the sentencing court imposed a standard-range sentence

with the benefit of a pre-sentence report, we will not consider the sentence

excessive.” Commonwealth v. Corley, 31 A.3d 293, 298 (Pa. Super.

2011); see also Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super.

2010) (“where a sentence is within the standard range of the guidelines,

Pennsylvania law views the sentence as appropriate under the Sentencing

Code”).   Under such circumstances, “we can assume the sentencing court

‘was aware of relevant information regarding the defendant’s character and

weighed those considerations along with mitigating statutory factors.’”

Corley, 31 A.3d at 298 (quoting Commonwealth v. Devers, 546 A.2d 12,

18 (Pa. 1988)).

      Here, Appellant’s sentence is in the standard range of the Sentencing

Guidelines.       Because   the   court   reviewed   Appellant’s   presentence

investigative report, we assume it took into account the mitigating

circumstances raised in Appellant’s brief, namely, her acknowledgment of

her mistake and her need to care for her infant daughter. See Corley, 31

A.3d at 298. Moreover, ample basis existed for the court to impose a higher

minimum sentence on Appellant than on Williams.         Appellant had a prior

record score of 1 due to two prior retail thefts, while Williams had a prior



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record score of 0.   Appellant’s Post-Sentence Mot., 4/14/16, at ¶¶ 6-7.

Therefore, we conclude that Appellant’s sentence was not excessive.   See

Corley, 31 A.3d at 298.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/13/2017




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