J-S20007-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                   v.

JAMES BOND

                        Appellant                   No. 1920 EDA 2015


           Appeal from the Judgment of Sentence June 15, 2015
           In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0003467-2011


BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                              FILED MAY 23, 2017

     James Bond appeals from the judgment of sentence of eleven-and-

one-half to thirty years incarceration imposed after the court found him in

violation of probation. We affirm.

     In the early morning hours on March 6, 2011, Appellant perpetrated a

rash of burglaries in northeast Philadelphia.   Appellant and an accomplice

entered five residential houses, four of which were occupied during the

break-in, and absconded with cash, keys, various technological devices, and

three automobiles. Later that morning, police officers, responding to reports

of the stolen automobiles, observed one suspected stolen vehicle parked on

Axe Factory Road. After determining the car was one of the reported cars,
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the officers spotted Appellant and his accomplice walking away from the

vehicle. Appellant attempted to flee, but was apprehended by the police.

       On July 21, 2011, while Appellant awaited trial, he attempted to

burglarize another house, but, realizing that the owner was asleep on the

living room couch, left without taking any items. Nevertheless, Appellant’s

latent fingerprints were recovered from the inside of an unlocked front

window.     Later that same day, Appellant entered another home while the

owner slept inside.       Appellant removed a laptop, a ring, cash and credit

cards, and a Volkswagen Jetta. Appellant’s fingerprints were also discovered

at this location.

       On December 15, 2011, Appellant entered into an open guilty plea to

thirteen counts, including convictions for burglary, attempted burglary,

conspiracy, and unauthorized use of a motor vehicle.1 The court imposed a

sentence of eleven-and-one-half to twenty three months incarceration plus

132 months probation. While serving his probationary sentence, Appellant

was arrested for forcible rape of a minor and related charges.             On

September 30, 2014, he pled guilty to one count of aggravated assault

stemming from those charges and received a sentence of three to six years

imprisonment.
____________________________________________


1
  The sentencing court later amended one of Appellant’s attempted burglary
convictions to a conspiracy to commit trespass. N.T. Sentencing, 12/15/11,
at 32.



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       As a result of Appellant’s conviction for another crime, the court herein

held hearings pursuant to Gagnon v. Scarpelli, 411 U.S. 778 (1973), and

found that Appellant had violated his probation.           The court revoked

Appellant’s probation, but withheld sentencing for the production of a

presentence report.       The court received that report, and on February 20,

2015, it sentenced Appellant to an aggregate sentence of twelve to thirty

years incarceration plus five years probation.2 Appellant filed a motion for

reconsideration requesting that the court run his sentence at each count

concurrently so that he could seek treatment in a mental health facility.

       Following a hearing on June 6, 2015, the court granted Appellant’s

motion for reconsideration and imposed an aggregate sentence of eleven-

and-one-half to thirty years imprisonment. Appellant filed a timely notice of

appeal, and complied with the court’s order to file a Rule 1925(b) concise

statement of errors complained of on appeal. The court then authored its

Rule 1925(a) opinion. This matter is now ready for our review.

       Appellant raises a single issue for our consideration:    “Whether the

court’s sentence of 11½ to 30 years incarceration violated Pa.C.S. §

9721(b), constituting an abuse of discretion?” Appellant’s brief at 3.



____________________________________________


2
 The notes of testimony for the February 20, 2015 sentencing hearing were
not transcribed.



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      In an appeal from a sentence imposed after the court has revoked

probation,   our    review   is   limited    to   “the     validity    of   the   revocation

proceedings, the legality of sentence imposed following revocation, and any

challenge    to    the   discretionary      aspects   of     the      sentence    imposed.”

Commonwealth v. Wright, 116 A.3d 133, 136 (Pa.Super. 2015).

      Appellant raises a challenge to the discretionary aspects of his

sentence. Our standard of review is as follows: “[s]entencing 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.”

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014) (citation

omitted). Further, “the right to appellate review of the discretionary aspects

of a sentence is not absolute, and must be considered as a petition for

permission to appeal.” Id. In order to invoke this Court’s jurisdiction:

      [W]e conduct a four-part analysis to determine: (1) whether
      appellant has filed a timely notice of appeal; (2) whether the
      issues were properly preserved at sentencing or in a motion to
      reconsider and modify sentence; (3) whether appellant’s brief
      has a fatal defect; and (4) whether there is a substantial
      question that the sentence appeal from is not appropriate under
      the Sentencing Code.

Id.

      Instantly, Appellant filed a timely notice of appeal and a timely motion

for reconsideration of his sentence.         Appellant’s motion for reconsideration

requested that the court impose his sentence concurrently due to his mental

health issues.      Essentially, this motion argued that the court erred by

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imposing an excessive sentence without considering Appellant’s mental

health needs.     Appellant’s Rule 1925(b) statement raised two contentions.

First, he asserted that the sentence was excessive under the circumstances,

and second, that it was manifestly unreasonable under the circumstances.

Rule 1925(b) Concise Statement of Errors Complained of on Appeal,

7/13/15, at unnumbered 1.

        Additionally, Appellant appended a Rule 2119(f) concise statement of

reasons relied upon for allowance of appeal alleging that the trial court failed

to consider the particular circumstances of the offense and Appellant’s

character pursuant to 42 Pa.C.S. § 9721(b). That section reads, in pertinent

part:

        (b) General standards.—In selecting from the alternatives set
        forth in subsection (a), 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 . . . In every case in which the court . . . resentences
        an offender following revocation of probation . . . the court shall
        make as a 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.

42 Pa.C.S. § 9721(b).       Particularly, he argues that the sentence imposed

was manifestly excessive since the court failed to adequately consider

Appellant’s mental health issues, age, and potential for rehabilitation.

Appellant’s brief at 9.    Since Appellant’s allegations regarding the court’s

failure to properly consider his age and his potential for rehabilitation were

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first raised in his Rule 2119(f) statement, and not otherwise preserved in a

post-sentence motion or at sentencing, these claims are waived.         See

Commonwealth v. Felder, 75 A.3d 513, 515 (Pa.Super. 2013) (noting

“[c]hallenges to the discretionary aspects of a sentence must be raised first

in the trial court, either in a post-sentence motion or by presenting them

during the sentencing proceedings . . . [t]he failure to do so results in a

waiver of all such claims”.).

      Next, we must determine whether Appellant’s claim that the trial court

failed to properly consider his “significant mental health issues” raises a

substantial question. Appellant’s brief at 12. Appellant maintains that the

court failed to consider his mental health when fashioning his sentence,

despite including a mental health evaluation with his motion to reconsider.

Id.   That exam, Appellant continues, “found a tremendous amount of

issues,” and thus, the court should have given him an earlier opportunity to

seek aid outside of the prison system. Id. Insofar as Appellant asserts that

the court did not adequately consider or failed to consider a mitigating

circumstance, this Court has found that such a claim does not raise a

substantial question.    Commonwealth v. Kane, 10 A.3d 327, 335-336

(Pa.Super. 2010) (finding that claim “that the court gave inadequate

consideration to certain mitigating factors, does not raise a substantial

question”). Thus, we will not reach the merits of Appellant’s claim.




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      Moreover, where, as here, the sentencing judge has the benefit of a

presentence investigation report, “it will be presumed that he or she was

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

weighed those considerations along with mitigating statutory factors.”

Commonwealth v. Finnecy, 135 A.3d 1028, 1038 (Pa.Super. 2016).

Finally, the court stated during Appellant’s resentencing

      I was equipped with a pretty good presentence report. Added to
      the factors which I have considered in the balancing that I am
      required to do, we did not make any significant changes to the
      sentences.

Reconsideration   Hearing,   6/15/15,   at   20-21.    The   court   explained

“[Appellant’s] presentence report and mental health evaluation demonstrate

no real promise of change since he has a series of behavior[ial] issues[.]”

Trial Court Opinion, 8/12/15, at 8 (some capitalization omitted).      Hence,

even if his claim raised a substantial question for review, the record reflects

that the court considered Appellant’s mental health concerns in fashioning

his sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/2017

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