J-S15011-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA


                       v.

COLEY ROBINSON

                            Appellant                    No. 1397 EDA 2015


          Appeal from the Judgment of Sentence December 19, 2014
            In the Court of Common Pleas of Philadelphia County
                          Criminal Division at No(s):
                          CP-51-CR-0000621-2013
                          CP-51-CR-0014500-2012
                          CP-51-CR-0014501-2012


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

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

       Coley Robinson appeals from the aggregate judgment of sentence of

fourteen to twenty-eight years incarceration1 imposed following his guilty

plea at three criminal cases.           The sole claim on appeal pertains to the

discretionary aspects of Appellant’s sentence. We affirm.

____________________________________________


1
  The Commonwealth notes that there is a discrepancy between the
sentence announced at the sentencing hearing, which was fourteen to
twenty-eight years imprisonment, and the sentence imposed via written
order, which states that Appellant’s aggregate sentence is twenty and one-
half to forty-two years in jail. Appellant has not asked us to resolve this
conflict, and we observe that he remains free to seek a correction of the
order in as much as it conflicts with the actual sentence imposed. See e.g.
Commonwealth v. Holmes, 933 A.2d 57 (Pa. 2007).
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      The instant sentence was imposed after Appellant tendered guilty

pleas at three criminal cases with no agreement to sentence.        We briefly

review the facts of each case.

      On August 19, 2012, Philadelphia Police officers were dispatched for

reports of gunfire.   Police officers observed Appellant enter a vehicle with

multiple bullet holes.   Appellant was detained and a search of the vehicle

yielded a loaded firearm.     At case number 2013-621, Appellant pleaded

guilty to carrying a firearm without a license and carrying a firearm in public

in Philadelphia.

      On September 25, 2012, Appellant announced to a group of three

males that they were being robbed. He pointed a gun at all three men and

demanded money. Two of the men, Ron Rojas and Christian Navarro, gave

Appellant some cash.      The third victim, Isiah Durham, who was deaf,

hesitated, and Appellant shot him in the stomach. Mr. Durham survived, but

was taken to the hospital in critical condition. Appellant fled the scene, and

was not apprehended until October 12, 2012.

      Appellant was thereafter charged with twenty counts at case number

2012-14500. He entered a guilty plea to the following charges: three counts

of robbery, one for each victim; aggravated assault for shooting Mr.

Durham; simple assault; carrying a firearm without a license; carrying a

firearm in Philadelphia; and possessing an instrument of crime.            The

remaining charges were nolle prossed.

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      On October 12, 2012, police officers investigated Appellant’s vehicle,

and discovered a firearm along with multiple packets of crack cocaine. At

criminal case 2012-14501, he pleaded guilty to carrying a firearm without a

license, carrying a firearm in Philadelphia, and one count of possession of a

controlled substance.

      On December 19, 2014, Appellant appeared for sentencing on all three

cases. He received an identical sentence of two to four years incarceration

at case numbers 2012-14501 and 2013-621, imposed concurrently to the

sentence imposed at case number 2012-14500.

      We now review the sentence imposed at 2012-14500, as there is a

discrepancy between the oral calculation and the written order of sentence.

We first set forth the trial court’s oral statements:

      THE COURT: . . . As to the aggravated assault in this matter . . .
      I follow the Commonwealth’s recommendation of 17 – sorry
      seven to 15 years of incarceration, pertaining to Isiah Durham.
      As to the robbery of Ron Rojas and Christian Navarro, I am
      sentencing two to five years of incarceration. Each [of] these
      sentences will run consecutive sorry – two and a half to five. On
      the VUFA charge, I will sentence two to four years also
      consecutive. The VUFA charges on the other firearms cases will
      be two to four concurrent.

      The other charges, the simple assault firearm, PIC, will be no
      further penalty.

      MR. FISHMAN: Just so I’m clear, Your Honor, in advising my
      client. Is the aggregate sentence of the court fourteen to
      twenty-nine years?

      THE COURT: Let me add it up. Yes.



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      MR. FISHMAN: Credit for time served.

      THE COURT: It’s 14 to 28. Credit for time served.

N.T. Sentencing, 12/19/14, at 49 (emphases added).          We note that the

aggregate sentence was correctly calculated by Appellant as fourteen to

twenty-nine years, as the court orally imposed a sentence of seven to fifteen

years of incarceration at the aggravated assault count.      Nevertheless, the

trial court then amended its aggregate sentence to fourteen to twenty-eight

years, and, as noted supra, ultimately imposed an aggregate sentence of

twenty and one-half to forty-two years in jail notwithstanding its stated

intent to impose an aggregate sentence of fourteen to twenty-eight years.

Appellant has continuously relied upon the trial court’s oral calculation. “The

aggregate sentence of fourteen (14) to twenty-eight (28) years . . . [was]

unduly harsh[.]” Appellant’s brief at 10.

      Following sentencing, Appellant filed a post-sentence motion, and the

post-sentence motion was denied by operation of law. Appellant then filed a

timely notice of appeal and complied with the trial court’s order to file a

Pa.R.A.P. 1925(b) concise statement of matters complained of on appeal,

again relying on the trial court’s oral statements, arguing that the trial court

erred in denying his post-sentence motions “as it relates to the sentence

imposed . . . of fourteen (14) to twenty-eight (28) years[.]”           Concise

Statement, 2/17/16, at 1. The trial court issued its opinion in response, and




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the matter is now ready for our review. Appellant raises one issue for our

review.

      Did the trial court err in denying post-sentence motions as it
      relates to the sentence imposed by imposing an excessive and
      manifestly unreasonable aggregate sentence of fourteen (14) to
      twenty-eight (28) years, where said sentence was based on
      factors already accounted for in the prior record score, the
      offense gravity score, the mitigation provided at the sentencing
      hearing and failing to provide reasons justifying its manifestly
      unreasonable aggregate sentence on the record at the time of
      sentencing?

Appellant’s brief at 4.

      Appellant’s   sole   claim   concerns   the   discretionary   aspects   of

sentencing.    When reviewing a criminal sentence, we apply the following

standard of review.

      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. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014) (citing

Commonwealth v. Robinson, 931 A.2d 15, 26 (Pa.Super. 2007)).

However, the right to appeal the discretionary aspects of a sentence is not

absolute.     We determine whether Appellant has invoked this Court’s

jurisdiction by examining the following four criteria:

      (1) whether appellant has filed a timely notice of appeal, see
      Pa.R.A.P. 902 and 903; (2) whether the issue was properly


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      preserved at sentencing or in a motion to reconsider and modify
      sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief
      [complies with] 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).

Commonwealth v. McLaine, 150 A.3d 70, 76 (Pa.Super. 2016) (citing

Commonwealth v. Samuel, 102 A.3d 1001, 1006–07 (Pa.Super. 2014)).

      Appellant’s appeal was timely filed and he preserved his claims in the

post-sentence motion to reconsider the sentence. Additionally, Appellant’s

brief complies with Pa.R.A.P. 2119(f). He presents two separate substantial

questions. First, he raises a global sentencing challenge, arguing that the

sentencing court failed to conduct an individualized consideration of

Appellant’s rehabilitative needs and mitigating circumstances, and instead

imposed the sentence solely on the seriousness of the crime and the fact

that the shot victim was deaf. We find that this claim raises a substantial

question, as “an averment that the court sentenced based solely on the

seriousness of the offense and failed to consider all relevant factors raises a

substantial   question.”   Commonwealth        v.   Macias,   968   A.2d   773

(Pa.Super. 2009) (citation omitted).    Additionally, he separately contends

that the sentence is manifestly excessive for the same reason, i.e., the court

failed to consider mitigating factors in imposing the aggregate sentence, as

the guidelines already accounted for the seriousness of the offenses.      We

find that both claims present a substantial question.     Commonwealth v.

Johnson, 125 A.3d 822, 826 (Pa.Super. 2015) (excessive sentence claim in


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conjunction with assertion that court failed to consider mitigating factors

raises a substantial question).

      In Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007), our Supreme

Court noted that our ability to review a sentence is constrained by 42

Pa.C.S. § 9781(c). The Walls Court stressed the deferential nature of our

examination of any sentence, stating that the “sentencing court is in the

best position to determine the proper penalty for a particular offense based

upon an evaluation of the individual circumstances before it.” Id. at 961

(citation and quotation marks omitted). By statute, we can vacate a

sentence and remand for re-sentencing only if we find 1) that the court

intended to sentence within the guidelines but “applied the guidelines

erroneously;” 2) a sentence was imposed within the guidelines “but the case

involves circumstances where the application of the guidelines would be

clearly unreasonable;” or 3) “the sentencing court sentenced outside the

sentencing guidelines and the sentence is unreasonable.” 42 Pa.C.S. §

9781(c). “In all other cases the appellate court shall affirm the sentence

imposed by the sentencing court.” Id.

      Presently, we find that the second of these categories is implicated.

Appellant attempts to argue that the sentence is outside of the guidelines by

ignoring the distinction between the total sentence imposed versus the

individual sentence imposed at the aggravated assault count.      “Appellant

submits that there were no aggravating circumstances to justify a sentence

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eighty-four (84) or seventy-two (72) months over the aggravated range of

the sentencing guidelines for the most serious offenses.” Appellant’s brief at

15.    Hence, Appellant refers to the total sentence imposed, or, more

accurately, his incorrect calculation of the total sentence imposed, and

compares that total sentence to the aggravated range for the individual

crimes of aggravated assault and/or robbery, which he asserts are “the most

serious offenses.” Appellant’s brief at 13.

       However, it is inappropriate to maintain that Appellant’s true sentence

was for “the most serious offense” while ignoring the fact that the aggregate

sentence was achieved through the imposition of consecutive sentences.

The aggravated assault (serious bodily injury) sentence was within the

guidelines, as the parties agreed that the deadly weapon used enhancement

matrix would apply to that charge, which carries an offense gravity score of

eleven.     See 204 Pa.Code. § 303.15.           Therefore, when paired with

Appellant’s prior record score of zero, the standard range with the

enhancement called for a sentence of fifty-four to seventy-two months, with

an aggravated range of eighty-four months.2 Hence, the sentence of seven


____________________________________________


2
   This is how Appellant arrives at his conclusion that his sentence was
manifestly excessive because it was “eighty-four (84) . . . months over the
aggravated range of the sentencing guidelines.” Appellant’s brief at 15. He
has calculated his sentence as imposing a minimum of 168 months (fourteen
years multiplied by twelve), and compares that 168 months to the eighty-
(Footnote Continued Next Page)


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to fifteen years incarceration at that count, while in the aggravated range, is

still within the guidelines. See Commonwealth v. Bowen, 975 A.2d 1120,

1128 (Pa.Super. 2009) (sentence within aggravated range still constitutes a

sentence within the guidelines).          Appellant does not argue that any of the

other sentences falls outside of the guidelines for the pertinent offense.3

       Hence, we can vacate judgment of sentence only if application of the

guidelines was clearly unreasonable, which “commonly connotes a decision

that is ‘irrational’ or not guided by sound judgment.” Walls, supra at 963.

Additionally, § 9781(d) of the Sentencing Code provides that when we

review the record, we must have regard for:

      (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.

      (4) The guidelines promulgated by the commission.



                       _______________________
(Footnote Continued)

four month aggravated range guideline sentence for the aggravated assault
charge.
3
  Since Appellant fails to acknowledge the actual sentence imposed, he does
not mount any challenge whatsoever to the sentences imposed at
possession of an instrument of crime, robbery with respect to Mr. Durham,
and the carrying a firearm in Philadelphia charge.




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42 Pa.C.S. § 9781(d). A sentence can be deemed unreasonable only after

review of these four factors or if the court failed to take into account the

factors outlined in 42 Pa.C.S. § 9721, which states, in relevant part:

      [T]he 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. The court shall also
      consider any guidelines for sentencing and resentencing adopted
      by the Pennsylvania Commission on Sentencing and taking effect
      under section 2155 (relating to publication of guidelines for
      sentencing, resentencing and parole and recommitment ranges
      following revocation).1

42 Pa.C.S. § 9721(b).

      We now examine the sentence in light of the foregoing standards.

First, we reject Appellant’s claim that the sentencing court imposed its

sentence based solely on the seriousness of the crime.         This assertion is

belied by the record.      The trial court had the benefit of sentencing

memoranda by both parties as well as a pre-sentence investigation report

(“PSI”).   “Where the sentencing court had the benefit of a [PSI], 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. Commonwealth v. Moury, 992 A.2d 162, 171




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(Pa.Super. 2010) (quotation marks and citation omitted). 4              Furthermore,

these mitigating facts were heard during argument, as Appellant called

witnesses and offered argument regarding mitigation; to wit, his traumatic

experiences from serving in Iraq and family support. The court cited these

facts when imposing the sentence.              Therefore, the trial court weighed the

mitigating factors, just not in the fashion Appellant wished. The trial court

clearly considered the § 9721(b) general standards regarding the need to

protect the public, the gravity of the offense, and the rehabilitative needs of

Appellant.

       With respect to the § 9781(d) factors, we likewise cannot deem the

sentence unreasonable. Appellant maintains that this case was no different

than a “normal” aggravated assault. Assuming there can be said to be such

a thing, we disagree with Appellant’s conclusion.           Appellant shot a man in

the stomach after robbing two other men at gunpoint.               As the trial court

remarked, these circumstances presented a strong case for attempted

murder. Moreover, as noted at sentencing, this was not an isolated criminal

episode, as the instant sentence applied to three separate criminal cases.

____________________________________________


4
  Appellant recognizes that the trial court had a PSI, but maintains that this
principle does not apply herein because the trial court, while mentioning the
PSI at sentencing, did not explicitly state it had read it. We do not find this
distinction relevant. We presume that the trial court solemnly performed its
duties and would not ignore the information in the pre-sentence report.




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Appellant was arrested on August 19, 2012 and charged for carrying a

firearm without a license, which resulted in confiscation of that firearm.

Then, on September 25, 2012, he used a separate firearm to commit the

robberies and aggravated assault.      The trial court was not obligated to

ignore the fact that Appellant procured a firearm after his arrest for violating

the firearm laws, and we find adequate support for the imposed sentence.

      We now turn to Appellant’s second claim, that the aggregate sentence

was excessive.     In reality, Appellant is mounting a challenge to the

consecutive nature of the other sentences, which is a separate substantial

question. See Antidormi, supra at 760 (concluding that substantial

question was raised only to the one sentence which fell outside the guideline

range). His excessive sentence claim relies on the assertion that the court

sentenced Appellant due solely to the serious nature of the offense, a claim

which we have rejected.

      Absent that allegation, the imposition of consecutive sentences does

not present the type of circumstances in which we would deem the sentence

excessive in light of Appellant’s crimes.     We stated in Commonwealth v.

Zirkle, 107 A.3d 127 (Pa.Super. 2014), that

      the imposition of consecutive rather than concurrent sentences
      lies within the sound discretion of the sentencing court. Long
      standing precedent of this Court recognizes that 42 Pa.C.S.A. §
      9721 affords the sentencing court discretion to impose its
      sentence concurrently or consecutively to other sentences being
      imposed at the same time or to sentences already imposed. A
      challenge to the imposition of consecutive rather than concurrent

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     sentences does not present a substantial question regarding the
     discretionary aspects of sentence. We see no reason why [a
     defendant] should be afforded a ‘volume discount’ for his crimes
     by having all sentences run concurrently.

           However, we have recognized that a sentence can be so
     manifestly excessive in extreme circumstances that it may
     create a substantial question. When determining whether a
     substantial question has been raised, we have focused upon
     whether the decision to sentence consecutively raises the
     aggregate sentence to, what appears upon its face to be, an
     excessive level in light of the criminal conduct in this case.


Id. at 133-34 (citations and quotation marks omitted).    Zirkle concluded

that a minimum sentence of seventeen years and one month incarceration

for three burglaries and one terroristic threat was not so manifestly

excessive as to present a substantial question.

     We do not view this case as one of these extreme circumstances

where the aggregate sentence appears to be excessive in light of the

conduct in this case, for the reasons delineated supra.       Hence, upon

reviewing the actual argument advanced in support of this claim, we

conclude that Appellant failed to raise a substantial question justifying a

merits review of the sentence.

     Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/23/2017




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