J-S86018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

DWIGHT GILLESPIE

                            Appellant                   No. 290 WDA 2016


             Appeal from the Judgment of Sentence January 26, 2016
                   In the Court of Common Pleas of Erie County
               Criminal Division at No(s): CP-25-CR-0000918-2013


BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY MOULTON, J.:                             FILED MARCH 14, 2017

       Dwight Gillespie appeals from the January 26, 2016 judgment of

sentence entered in the Erie County Court of Common Pleas following his

convictions for receiving stolen property.1 We affirm.

       On March 13, 2014, following a jury trial, Gillespie was convicted of

two counts of receiving stolen property. On May 27, 2014, the trial court

sentenced Gillespie to 48 to 120 months’ incarceration at Count 11, to be

served consecutively to a prior state sentence for which Gillespie was on




____________________________________________


       *
           Former Justice specially assigned to the Superior Court.
       1
           18 Pa.C.S. § 3925(a).
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parole.2    At Count 13, the trial court sentenced Gillespie to a concurrent

term of 48 to 120 months’ incarceration.            The trial court further directed

Gillespie to pay restitution in the amount of $11,313.44.           Gillespie filed a

post-sentence motion, which the trial court denied on June 10, 2014.

Gillespie did not file a direct appeal.        Following a petition pursuant to the

Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546, the trial court

reinstated Gillespie’s appeal rights nunc pro tunc, and Gillespie appealed.

        On December 10, 2015, we affirmed Gillespie’s conviction but vacated

his judgment of sentence and remanded for a new sentence that would:

award Gillespie credit for time served at CP-25-CR-0000918-2013, properly

grade Gillespie’s offenses at Counts 11 and 13, and clarify the individuals

and/or entities to whom restitution was payable and the amounts payable to

each.

        On January 26, 2016, the trial court re-sentenced Gillespie within the

Sentencing Guidelines to 30 to 60 months’ incarceration at Count 11, with

546 days credit for time served, and a consecutive 15 to 30 months’

incarceration at Count 13. The trial court further clarified that $499.99 of

the total restitution amount was owed to Erie Insurance and $1,700.01 was

owed to the victims.


____________________________________________


        2
       On July 8, 2009, the trial court had sentenced Gillespie to 21 to 240
months’ incarceration following a conviction for criminal conspiracy—
burglary, 18 Pa.C.S. § 3502.



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      Gillespie filed a post-sentence motion arguing the sentences should

have been imposed concurrently rather than consecutively, which the trial

court denied on February 2, 2016. On February 19, 2016, Gillespie timely

filed a notice of appeal.

      Gillespie’s sole issue on appeal is whether the sentence imposed by

the   trial   court    was   “manifestly    excessive,   clearly   unreasonable    and

inconsistent with the objectives of the Sentencing Code after the trial court

considered and relied on impermissible factors.” Gillespie’s Br. at 3.

      Gillespie       challenges   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 Appellant
          preserved his issue; (3) whether Appellant’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 sentencing code.

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

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

see also Allen, 24 A.3d at 1064.

      Gillespie filed a timely notice of appeal, preserved his claim in a timely

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

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

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Appellate Procedure 2119(f).           We must now determine whether he has

raised a substantial question that the sentence is inappropriate under the

Sentencing Code.

       We evaluate whether a particular sentencing issue raises a substantial

question on a case-by-case basis.              Commonwealth v. Dunphy, 20 A.3d

1215, 1220 (Pa.Super. 2011).              A substantial question exists where a

defendant raises a “plausible argument that the sentence violates a

provision of the sentencing code or is contrary to the fundamental norms of

the sentencing process.” Commonwealth v. Dodge, 77 A.3d 1263, 1268

(Pa.Super. 2013) (citation and internal quotation marks omitted). Where a

defendant receives consecutive sentences within the Guideline’s ranges, but

application of the Guidelines would be clearly unreasonable, resulting in an

excessive sentence, he may raise a substantial question.               Id. at 1270.     A

bald claim of excessiveness due to the imposition of consecutive sentences,

however, does not raise a substantial question. Id.

       Here, Gillespie argues that the trial court’s imposition of consecutive

sentences resulted in an excessive period of incarceration.3               Gillespie does

not address why his aggregate sentence, which is within the Guideline’s

ranges,    is   clearly   unreasonable;        nor   does   he   specify   the   allegedly
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       3
         In Gillespie’s Rule 2119(f) statement, he argues that the trial court
failed to consider the factors set out in 42 Pa.C.S. §9721(b). However, the
only claim in the argument section of his brief is that the trial court abused
its discretion in imposing consecutive, instead of concurrent, sentences.



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impermissible factors on which the trial court relied.      His bald claim of

excessiveness due to the consecutive nature of his sentence does not raise a

substantial question.   Id.   (“[A] bald claim of excessiveness due to the

consecutive nature of a sentence will not raise a substantial question.”).

      Even if Gillespie had raised a substantial question, however, we would

conclude that his claim is meritless. “Sentencing is a matter vested within

the discretion of the trial court and will not be disturbed absent a manifest

abuse of discretion.”   Commonwealth v. Crump, 995 A.2d 1280, 1282

(Pa.Super. 2010). “An abuse of discretion requires the trial court to have

acted with manifest unreasonableness, or partiality, prejudice, bias, or ill-

will, or such lack of support so as to be clearly erroneous.”         Id.    “A

sentencing court need not undertake a lengthy discourse for its reasons for

imposing a sentence or specifically reference the statute in question, but the

record as a whole must reflect the sentencing court’s consideration of the

facts of the crime and character of the offender.” Id. at 1283.

      At the re-sentencing hearing, the trial court explained:

             The Court has considered the Pennsylvania Sentencing
         Code, the pre-sentence report and the Pennsylvania
         guidelines on sentencing. The court has also considered
         the statements of defense counsel, the defendant and the
         attorney for the Commonwealth.           The Court has
         considered Mr. Gillespie’s age, his background, his
         character    and   rehabilitative needs,    the    nature,
         circumstances and seriousness of the offenses and the
         protection of the community. Mr. Gillespie, it does not
         appear here that you’ve used your time in prison to
         achieve some things that are of some benefit to you and
         will aid you when you are released back into society. The

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           re-sentencing places you before the Court with a different
           set of guidelines and the chance of a lesser sentence than
           was originally imposed. I have no problem with that. I
           am concerned, however, because you come before the
           Court as a repeat felony offender and you do have a long
           prior criminal history that goes back to 2001 when you
           were a juvenile -- excuse me 2000, which is 15 years.
           And they were mostly theft offenses but there are some
           assaults and burglary, and these charges involve theft as
           well. So it is pretty obvious that up to this point nothing
           that has been done by the juvenile court or by the adult
           courts have [sic] been able to rehabilitate or deter you. I
           hope this time is the final time that you come before this
           or any other court, but that’s up to you. Your track record
           does not bode well for the future, but you can change all of
           that this time around, if you want to. I don’t know if you
           will or not, but I do know that you need to serve the time
           for the crimes you’ve committed and for the actions that
           you’ve taken in violation of the law.

N.T., 1/26/16, at 11-12.

       It is clear from the record that the trial court considered the section

9721(b) factors – “protection of the public, 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). The trial court

also   considered     Gillespie’s    pre-sentence   report4   and   the   applicable

Sentencing Guidelines. After taking this all into consideration, the trial court

imposed consecutive sentences. See Commonwealth v. Hoag, 665 A.2d
____________________________________________


       4
         “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.” Commonwealth v. Macias, 968 A.2d 773,
778 (Pa.Super. 2009) (quoting Commonwealth v. Devers, 546 A.2d 12,
18 (Pa. 1988)).



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1212, 1214 (Pa.Super. 1995) (quoting Commonwealth v. Graham, 661

A.2d 1367, 1373 (Pa. 1995) (“The general rule in Pennsylvania is that in

imposing a sentence the court has discretion to determine whether to make

it concurrent with or consecutive to other sentences then being imposed or

other sentences previously imposed.”).     We find the trial court has not

abused its discretion. See id. (stating appellant should not be entitled to “a

volume discount for his crimes by having all sentences run concurrently”).

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/14/2017




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