J-S33040-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

SUKORI BUTLER

                          Appellant                No. 3425 EDA 2013


    Appeal from the Judgment of Sentence entered November 12, 2013
              In the Court of Common Pleas of Monroe County
             Criminal Division at No: CP-45-CR-0001002-2013


BEFORE: FORD ELLIOTT, P.J.E., OLSON, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                        FILED AUGUST 25, 2014

      Appellant, Sukori Butler, appeals from the judgment of sentence the

Court of Common Pleas of Monroe County entered November 12, 2013. On

appeal, Appellant challenges the discretionary aspects of his sentence. Upon

review, we affirm.

      The trial court summarized the factual and procedural history of this

case as follows:

            On August 8, 2013, [Appellant] pled guilty to [t]erroristic
            [t]hreats, acknowledging and accepting responsibility for
            punching his girlfriend and fracturing her jaw. At the time
            of the guilty plea, [Appellant] was advised that he would
            be sentenced on October 29, 2013. [Appellant] failed to
            appear for sentencing and a bench warrant was issued on
            November 1, 2013. After [Appellant] was picked up on the
            warrant, he was sentenced on November 12, 2013 to a
            period of incarceration of twelve to twenty-four month[s]
            and required [Appellant] to make restitution to the victim.
            [Appellant] filed a [m]otion for [r]econsideration of
            [s]entence on November 15, 2013, which was denied by
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               [o]rder dated November 20, 2013.        Subsequently, on
               December 5, 2013, [Appellant] filed a [n]otice of [a]ppeal
               and we ordered [Appellant] to file a concise statement of
               issues on appeal. . . .

               In his 1925(b) statement, [Appellant] appeals from the
               discretionary aspects of his sentence.         Specifically,
               [Appellant] contends that we abused our discretion in
               sentencing [Appellant] to an aggravated range sentence
               and we did not explain the reasons for the sentence.

Trial Court Opinion, 1/30/14, at 1-2. This appeal followed.



discretion in sentencing [] Appellant to a term of incarceration at a state

correctional        facility,   and   said   sentence     was       clearly   unreaso



improperly focused on the nature of the crime, and did not consider the

current character of Appellant or his rehabilitative needs.                     Additionally,

                                      icate that it was in fact sentencing Appellant

outside of the guidelines and provide a contemporaneous statement of its

                                      Id.



preserve a challenge to the discretionary aspects of a sentence, an appellant

must file a timely notice of appeal, preserve the argument in a timely post-

sentence motion or orally at sentencing, include a Pa.R.A.P. 2119(f)

statement      in     the   appellate   brief,   and    raise   a    substantial   question.

Commonwealth v. Dewey, 57 A.3d 1267, 1269 (Pa. Super. 2012).




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      Here, it is undisputed that Appellant timely filed a notice of appeal,

timely filed a post-sentence motion raising the discretionary issues, and

included a Pa.R.A.P.2119(f) statement in his brief. The only issue is whether

he raised a substantial question for our review.

      The determination of what constitutes a substantial question
      must be evaluated on a case-by-case basis.                  See
      Commonwealth v. Paul,
      substantial question exi[sts] only when the appellant advances a

      either: (1) inconsistent with a specific provision of the
      Sentencing Code; or (2) contrary to the fundamental norms
                                              Commonwealth v.
      Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quotation and
      quotation marks omitted).

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

     Our standard of review of a sentencing claim is as follows:

      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. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)

(citation omitted). In reviewing a sentence on appeal, the appellate court

      shall vacate the sentence and remand the case to the sentencing
      court with instructions if it finds:

            (1) the sentencing court purported to sentence within the
            sentencing   guidelines   but   applied  the   guidelines
            erroneously;



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              (2) the sentencing court sentenced within the sentencing
              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.

       In all other cases[,] the appellate court shall affirm the sentence
       imposed by the sentencing court.

42 Pa.C.S.A. § 9781(c).1



character and his rehabilitative needs and (ii) provide a contemporaneous

statement for deviating from sentencing guidelines.              These claims raise a

substantial question for our review. See Commonwealth v. Downing, 990

A.2d 788, 793 (Pa. Super. 2010); Commonwealth v. Monahan, 860 A.2d

180, 182 (Pa. Super. 2004). While Appellant raises substantial questions for

our review, the issues are, nonetheless, without merit.


____________________________________________


1
  In Commonwealth v. Coulverson, 34 A.3d 135 (Pa. Super. 2011), we
noted:

       In   determining     whether      a     particular   sentence   is


       as the particular circumstances of the offense involved, the trial
                                                                     nce
       investigation report, if any, the Sentencing Guidelines as

       upon which the trial court based its sentence.

Id. at 147 (citation omitted); see also 42 Pa.C.S.A. § 9781(d).



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      With regard to the first issue, the claim is meritless because the trial

court had, and reviewed, a pre-sentence investigation report, which included

all pertinent informatio

             Our Supreme Court has determined that where the trial court is

informed by a pre-sentence report, it is presumed that the court is aware of

all appropriate sentencing factors and considerations, and that where the

court has been so informed, its discretion should not be disturbed

Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009)

(citation omitted).     Regarding the rehabilitative needs, Appellant himself

testified at the hearing about the importance of being close to his family and

accountability. The trial court took into account both matters, but declined

to sentence Appellant to a county sentence.             See N.T. Sentencing,

11/12/13, at 3-

the trial court failed to consider either his current character or rehabilitative

needs.    Additionally, Appellant failed to provide any authority for the

proposition the trial court abused its sentencing discretion simply because it

disagreed with Appellant regarding the assessment of his character or

rehabilitative needs.

      The second issue is similarly without merit, for two reasons.        First,

Appellant was not sentenced outside the sentencing guidelines; rather, his

sentence fell within the aggravated range.      Second, the trial court clearly




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imposed a sentence in the aggravated range (i.e., Appellant tested positive

for marijuana at the time of the presentence investigation).          See N.T.

Sentencing, 11/12/13, at 10; see also 42 Pa.C.S.A. § 9721(b).2 The trial

court also considered, but rejected, Appellant

circumstance (he punched victim only once). The trial court explained that

victim suffered a significant amount of damage (broken jaw).                 N.T.

Sentencing, 11/12/13, 9-10; see also Trial Court Opinion, 1/30/14, at 2-3.

The claim is, therefore, without merit.


____________________________________________


2
    Section 9721(b) provides:

        In every case in which the court imposes a sentence for a felony
        or misdemeanor, modifies a sentence, resentences an offender
        following revocation of probation, county intermediate
        punishment or State intermediate punishment or resentences
        following remand, 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. In every
        case where the court imposes a sentence or resentence outside
        the guidelines adopted by the Pennsylvania Commission on
        Sentencing under sections 2154 (relating to adoption of
        guidelines for sentencing), 2154.1 (relating to adoption of
        guidelines for county intermediate punishment), 2154.2 (relating
        to adoption of guidelines for State intermediate punishment),
        2154.3 (relating to adoption of guidelines for fines), 2154.4
        (relating to adoption of guidelines for resentencing) and 2154.5
        (relating to adoption of guidelines for parole) and made effective
        under section 2155, the court shall provide a contemporaneous
        written statement of the reason or reasons for the deviation
        from the guidelines to the commission, as established under
        section 2153(a)(14) (relating to powers and duties).

42 Pa.C.S.A. § 9721(b).



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     Accordingly, we conclude the trial court did not abuse its discretion in

sentencing Appellant in the aggravated guidelines range.

     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2014




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