J-S48009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :    IN THE SUPERIOR COURT OF
                                                :         PENNSYLVANIA
                                                :
                v.                              :
                                                :
                                                :
    HASSAN AKBAR                                :
                                                :
                       Appellant                :    No. 3086 EDA 2017

            Appeal from the Judgment of Sentence August 27, 2015
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0007173-2009


BEFORE:      DUBOW, J., MURRAY, J., and PLATT, J.*

MEMORANDUM BY DUBOW, J.:                             FILED SEPTEMBER 26, 2018

       Appellant, Hassan Akbar, appeals from the August 27, 2015 Judgment

of Sentence imposed following our Supreme Court’s remand to the trial court

for resentencing on his convictions of Aggravated Assault, Conspiracy to

Commit Aggravated Assault, Possession of a Firearm by a Prohibited Person,

and Possessing Instruments of Crime (“PIC”).1

       The relevant facts and procedural history are as follows. On April 14,

2010, a jury found Appellant guilty of the above offenses. The Commonwealth

calculated Appellant’s prior record score as a repeat felony offender. On July

12, 2010, the court sentenced Appellant to an aggregate term of 25 to 50

years’ incarceration, including mandatory minimum sentences on the

Aggravated      Assault    and     Conspiracy   to   Commit   Aggravated   Assault
____________________________________________


118 Pa.C.S. § 2702(a)(1); 18 Pa.C.S. § 903(a)(1); 18 Pa.C.S. § 6105(a)(1);
and 18 Pa.C.S. § 907(a), respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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convictions. On July 22, 2010, Appellant filed a Post-Sentence Motion. On

November 22, 2010, the trial court entered an Order denying Appellant’s

Motion by operation of law pursuant to Pa.R.Crim.P. 720(B)(3)(c).

       Appellant timely appealed from his Judgment of Sentence on December

15, 2010.2      This Court affirmed Appellant’s convictions but vacated his

Judgment of Sentence and remanded for resentencing. See Commonwealth

v. Akbar, 91 A.3d 227 (Pa. Super. filed April 30, 2014).

       On May 5, 2014, Appellant filed a Petition for Allowance of Appeal. On

March 4, 2015, the Pennsylvania Supreme Court vacated this Court’s decision,

and remanded the matter for resentencing pursuant to Commonwealth v.

Fields, 107 A.3d 738 (Pa. 2014), which had been pending at the time this

Court decided Appellant’s direct appeal. In Fields, our Supreme Court held

that 42 Pa.C.S. § 9714(a)(1) requires that a “second-strike offender be

sentenced to the prescribed minimum term of incarceration for each conviction

of a crime of violence that is part of the second strike.” Fields, 107 A.3d at

744.




____________________________________________


2 During the pendency of Appellant’s direct appeal, on November 8, 2011,
Appellant filed a pro se Petition pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546, in which he alleged that the court had
imposed an illegal sentence pursuant to Alleyne v. United States, 570 U.S.
99 (2013). The PCRA court dismissed Appellant’s Petition as premature on
January 16, 2012.




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       Following a resentencing hearing, on August 27, 2015, the trial court

resentenced Appellant to the same aggregate term of incarceration, but did

not impose any mandatory minimum sentences.3 The court acknowledged

that this is an aggravated range sentence, but that it did not apply any

mandatory minimum sentences.              It explained its decision to impose an

aggravated range sentence as “necessary to keep the streets free from

[Appellant’s] criminal activity.” Trial Ct. Op., 11/3/17, at 3.

       On August 20, 2015, Appellant filed a Motion for Reconsideration of

Sentence, challenging the discretionary aspects of his sentence. On January

4, 2016, the trial court entered an Order denying Appellant’s Motion by

operation of law pursuant to Pa.R.Crim.P. 720(B)(3)(c). Appellant did not file

a direct appeal from his Judgment of Sentence.

       Appellant filed a pro se PCRA Petition on June 29, 2016, raising a claim

of ineffective assistance of counsel and requesting the reinstatement of his

direct appeal rights. The court appointed counsel who filed an Amended PCRA

Petition and two Supplemental Amended PCRA Petitions. On September 18,

2017, the PCRA court granted Appellant’s Petition and reinstated Appellant’s

direct appeal rights.


____________________________________________


3 Appellant’s sentence is comprised of a 10 to 20 year term of incarceration
on the Aggravated Assault conviction, a consecutive 10 to 20 year term of
incarceration on the Conspiracy conviction, and a consecutive 5 to 10 year
term of incarceration on the Possession of a Firearm by a Prohibited Person
conviction. The court sentenced Appellant to no further penalty on the PIC
conviction.

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      This timely appeal followed.          Both Appellant and the PCRA court

complied with Pa.R.A.P. 1925.

      Appellant raises the following issue on appeal:

      Is [A]ppellant entitled to a new sentenc[ing] hearing when the
      trial court based its sentencing decision on conclusions not
      supported by the record which was the [A]ppellant was beyond
      rehabilitation and should be put in prison for as long as possible?
      In light of this[,] are there serious doubts that the trial court
      properly considered the general guidelines provided by the
      Legislature in imposing the sentence?

Appellant’s Brief at 2.

      Appellant’s claim challenges the discretionary aspects of his sentence.

See Commonwealth v. Lutes, 793 A.2d 949, 964 (Pa. Super. 2002) (stating

claim that sentence is manifestly excessive challenges discretionary aspects

of sentencing).     However, challenges to the discretionary aspects of

sentencing   do   not     entitle   an   appellant   to   an   appeal   as   of   right.

Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). Prior to

reaching the merits of a discretionary sentencing issue, we must determine

whether: (1) appellant has filed a timely notice of appeal; (2) the issue was

properly preserved at sentencing or in a motion to reconsider and modify

sentence; (3) appellant’s brief has a fatal defect; and (4) there is a substantial

question that the sentence is not appropriate under the Sentencing Code.

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006).

      The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis. Commonwealth v. Anderson, 830 A.2d

1013, 1018 (Pa. Super. 2003). A substantial question exists “only when the

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appellant advances a colorable argument that the sentencing judge’s actions

were either: (1) inconsistent with a specific provision of the Sentencing Code;

or (2) contrary to the fundamental norms which underlie the sentencing

process.” Sierra, supra at 912-13.

      Appellant has satisfied the first three requirements set forth above: he

filed a timely Notice of Appeal; preserved the issue by filing a Petition to

Reconsider Sentence; and included a separate Pa.R.A.P. 2119(f) Statement in

his Brief to this Court.    We, thus, consider whether Appellant raised a

substantial question.

      Appellant argues that his aggregate sentence is manifestly excessive.

Appellant’s Brief at 7-8.   He argues that the sentencing court abused its

discretion by imposing consecutive sentences and by allegedly failing to

consider mitigating circumstances, i.e., the factors he deems illustrative of his

potential for rehabilitation. Id.

      It is well-settled that a bare challenge to the imposition of consecutive

rather than concurrent sentences does not present a substantial question

regarding the discretionary aspects of sentence. Commonwealth v. Zirkle,

107 A.3d 127, 133 (Pa. Super. 2014). Moreover, claims that the sentencing

court did not adequately consider mitigating factors do not generally raise a

substantial question. See, e.g, Commonwealth v. Moury, 992 A.2d 162,

175 (Pa. Super. 2010). Appellant has not advanced a “colorable argument”

that his standard range sentence is either inconsistent with a specific provision

of the Sentencing Code or contrary to the fundamental norms underlying the

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sentencing process.   Anderson, supra at 1018.        Thus, we conclude that

Appellant has not raised a substantial question for this Court’s review.

      Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/18




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