J-S29026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

NATHAN HOYE

                            Appellant                 No. 1481 WDA 2015


              Appeal from the Judgment of Sentence May 7, 2015
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0015303-2014


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

MEMORANDUM BY PANELLA, J.                                FILED MAY 20, 2016

        Appellant, Nathan Hoye, appeals from the judgment of sentence

entered on May 7, 2015, in the Court of Common Pleas of Allegheny County.

No relief is due.

        On September 25, 2014, while serving a term of incarceration in

Allegheny County Jail, Hoye used a pen to stab Corrections Officer (“CO”)

Fred Young in the hand and threatened to kill both CO Young and CO Jason

Batykefer. As a result, Hoye entered a guilty plea on May 7, 2015 to simple

assault,1 assault by prisoner,2 and two counts of terroristic threats.3 After

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. § 2701(a)(1).
2
    18 Pa.C.S.A. § 2703(a).
3
    18 Pa.C.S.A. § 2706(a)(1).
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reviewing Hoye’s history with the criminal justice system and noting his

failure to take advantage of the court’s leniency in prior cases, the trial court

imposed a standard range sentence of 16 to 32 months incarceration,

followed by four years of probation. On May 15, 2015, Hoye filed a motion

for reconsideration of sentence, which the trial court denied following a

hearing. This timely appeal followed.

      Hoye raises the following issue for our review:

      Did the trial court abuse its discretion at sentencing by imposing
      a clearly unreasonable sentence that failed to account for the
      protection of the public, the gravity of the offense in relation to
      the impact on the victim and community, and Mr. Hoye’s mental
      state at the time of the incident?

Appellant’s Brief at 5.

      This claim challenges the discretionary aspects of Hoye’s sentence. A

challenge to the discretionary aspects of a sentence must be considered a

petition for permission to appeal, as the right to pursue such a claim is not

absolute.”   Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.

2004) (citation omitted).

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test:

      [We] 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).


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Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)

(quotation marks and some citations omitted).

      Here, Hoye challenged his sentence in a post-sentence motion and

filed a timely appeal. Hoye’s appellate brief also contains the requisite Rule

2119(f) concise statement. We must now determine whether Hoye’s

challenge to the discretionary aspects of his sentence raises a substantial

question.

      “A substantial question will be found where an appellant advances a

colorable argument that the sentence imposed is either inconsistent with a

specific provision of the Sentencing Code or is contrary to the fundamental

norms which underlie the sentencing process.” Commonwealth v. Zirkle,

107 A.3d 127, 132 (Pa. Super. 2014), appeal denied, 117 A.3d 297 (Pa.

2015) (citation omitted). “[W]e cannot look beyond the statement of

questions presented and the prefatory 2119(f) statement to determine

whether a substantial question exists.” Commonwealth v. Christine, 78

A.3d 1, 10 (Pa. Super. 2013) (citation omitted).

     “[A]rguments that the sentencing court failed to consider the factors

proffered in 42 Pa.C.S. § 9721 does present a substantial question whereas

a statement that the court failed to consider facts of record, though

necessarily encompassing the factors of § 9721, has been rejected.”

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014),

appeal denied, 104 A.3d 1 (Pa. 2014) (citation omitted) (en banc).




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      Hoye claims on appeal that his sentence was excessive because the

trial court failed to consider mitigating factors, such as “the protection of the

public, gravity of offense in relation to impact on victim and community, and

rehabilitative needs of the defendant.” Appellant’s Brief at 13. While Hoye

frames his issue by claiming the trial court failed to consider certain

mitigating factors under Section 9721, in substance he merely asserts that

the trial court failed to adequately consider facts of record. This does not

raise a substantial question for our review.

      The record belies Hoye’s claims that the trial court failed to consider

mitigating facts of record. At the plea hearing, the trial court expressly

recognized the seriousness of attacking a corrections officer, as well as

Hoye’s mental health issues, for which he continually refused to obtain

treatment:

      My problem, Mr. Hoye, is that I have been dealing with you now
      for several years and I have to tell you, it has been
      tremendously frustrating. Because you have told me on many
      occasions how much you want to try. You’ve told me on many
      occasions how sorry you are. And yet after you tell me those
      things, you totally fail to comply with whatever sentence is
      imposed.

      I had you on regular probation and you violated that regular
      probation pretty quickly. You were incarcerated and you were
      detained. And at that point, I offered you mental health help.
      Probably not after the first detainer, but the second one. To try
      to get you into Mental Health Court and hooked you up with JRS.
      And they came up with some plans for you. And you didn’t
      comply with a single plan.

      In fact, on the one occasion when you were at Renewal, you left
      here from a Mental Health Court review and you disappeared.
      You went missing in action and didn’t go back to Renewal. You

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     started calling and threatening that you were going to kill
     yourself. We decided we could not work with you because you
     would not be compliant at all in the community.

     Then I put you in the Allegheny County Jail hoping that in the
     Allegheny County Jail you would be compliant. Do programs. Get
     your GED. There was a really great re-entry program there. That
     was all the hope for you, Mr. Hoye.

     … I know. You are not allowed to do it because of your behavior.
     That’s my point. You haven’t done anything. You can’t comply
     with the rules even when you are incarcerated. So, you spent
     most of your time on the disciplinary housing unit down the
     Allegheny County Jail. You are not complying with the rules
     down there.

     And then to attack a corrections officer and to threaten the
     correction officers is just beyond anything. Beyond words even.
     How do you do that when all you’ve asked for is a chance? What
     I’ve tried to do along the way is to give you chances. Every time
     I have given you a chance, you have taken it, pretty much
     crumpled it up and thrown it away. Every time. And the behavior
     has never improved.

N.T., Plea & Sentencing Hearing, 5/7/15 at 11-13.

     We are satisfied that the trial court adequately acknowledged and was

extensively aware of the mitigating factors present in this case. Hoye cannot

repeatedly flaunt the court’s efforts to offer chances for mental health care

and rehabilitation and then cry foul when the court imposes a standard

range sentence for his continued criminal conduct.

     Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/20/2016




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