J-S64010-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

BRANDON SIMOLA

                            Appellant                 No. 214 WDA 2014


             Appeal from the Judgment of Sentence August 14, 2013
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0002515-2013


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.:                        FILED NOVEMBER 7, 2014

        Brandon Simola appeals from his judgment of sentence imposed in the

Court of Common Pleas of Allegheny County following his convictions for one

count each of:       retail theft (F3),1 simple assault (M2),2 possession of a

controlled substance,3 and possession of drug paraphernalia.4 Upon review,

we affirm.

        On May 23, 2013, Simola pled guilty to the above-listed offenses. The

court sentenced Simola to an aggregate term of 18 to 36 months’

____________________________________________


1
    18 Pa.C.S. § 3929(a)(1).
2
    18 Pa.C.S. § 2701 (a)(1).
3
    35 Pa.S. § 780-113(a)(16).
4
    35 Pa.S. § 780-113 (a)(32).
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imprisonment, followed by two years of probation. Following the trial court’s

denial of his post-sentence motion on January 3, 2014, Simola filed a timely

notice of appeal.5

       On appeal, Simola contends that the court abused its discretion by

failing to consider his rehabilitative needs and imposing a manifestly

excessive and unreasonable sentence.             Simola’s claim implicates the

discretionary aspects of his sentence.

       Challenges to the discretionary aspects of sentencing do not
       entitle an appellant to review as of right.            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).

       Objections to the discretionary aspects of a sentence are
       generally waived if they are not raised at the sentencing hearing
       or in a motion to modify the sentence imposed.

____________________________________________


5
  On February 13, 2014, the trial court ordered a statement of errors
complained of on appeal, to which Simola timely responded, claiming the
court imposed an illegal sentence at count one and that the court abused its
discretion. Simola’s first claim was based on a scrivener’s error, which
resulted in the docket reflecting a different sentence from that imposed at
the time of sentencing. On June 23, 2014, the trial court submitted its Rule
1925(a) opinion and corrected the scrivener’s error on the docket to reflect
the correct sentence.



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        The determination of what constitutes a substantial question
        must be evaluated on a case-by-case basis.          A substantial
        question exists only when the 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.

Commonwealth v. Griffin, 65 A.3d 932, 935-36 (Pa. Super. 2013)

(citations and quotations omitted).

        Here, Simola has met the first three requirements of the four-part

test.    However, as this Court recently noted in Griffin, there is ample

precedent to support a determination that Simola’s allegation fails to raise a

substantial question. Griffin, 65 A.3d at 936-37 (citing Commonwealth v.

Cannon, 954 A.2d 1222, 1228-29 (Pa. Super. 2008) (claim that trial court

failed to consider defendant’s rehabilitative needs, age, and educational

background did not present substantial question); Commonwealth v.

Mobley, 581 A.2d 949, 952 (Pa. Super. 1990) (claim that sentence failed to

take into consideration defendant’s rehabilitative needs and was manifestly

excessive did not raise substantial question where sentence was within

statutory guidelines and within sentencing guidelines); Commonwealth v.

Bershad, 693 A.2d 1303, 1309 (Pa. Super. 1997) (claim that trial court

failed to appropriately consider appellant’s rehabilitative needs does not

present substantial question); Commonwealth v. Lawson, 650 A.2d 876,

881 (Pa. Super. 1994) (claim of error for failing to consider rehabilitative

needs does not present substantial question)).




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      Even if we were to find that Simola’s claim did raise a substantial

question, the underlying allegation is meritless.

      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.

                                     ***
      When imposing a sentence, a court is required to consider the
      particular circumstances of the offense and the character of the
      defendant.      In particular, the court should refer to the
      defendant’s     prior  criminal  record,   his    age, personal
      characteristics and his potential for rehabilitation. Where the
      sentencing court had the benefit of a presentence investigation
      report (“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. Further, where a sentence is within the standard range
      of the guidelines, Pennsylvania law views the sentence as
      appropriate under the Sentencing Code.

Griffin, 65 A.3d at 937-38 (citations omitted).

      The record belies Simola’s claim that the court failed to acknowledge

his “dire need to be rehabilitated given the serious drug-addiction that has

plagued him for the majority of his adult life.” Appellant’s Brief, at 11. As

the trial court explained,

      [Simola’s] drug problem was addressed in the presentence
      report and discussed at the sentencing hearing. The [c]ourt,
      responding to [Simola’s] statement that he had entered a
      methadone treatment program shortly before the sentencing
      hearing, noted that he had been arrested on June 13, three
      weeks after he entered his plea in this case, and charged



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      with possession of heroin.    [We] explained the reasons for the
      sentenced imposed:

         The [c]ourt’s reviewed the pre-sentence report for a
         second time. Keep coming up with the same conclusion.
         You have been going in and out of this court system since
         1998. Doing the math, that’s 15 years. 15 years of using
         drugs, retail theft, sexual assault, simple assault, theft by
         deception, criminal conspiracy, and now all of a sudden --
         after you enter a plea of guilty to retail theft in May, you
         get arrested again for possession. Now all of a sudden
         you’re in a methadone maintenance program. Possession,
         by the way, of heroin. I think it has been 15 years of
         judges trying to reach you and haven’t been successful.

Trial Court Opinion, 6/23/14, at 3-4 (emphasis in original). Thus, the court

considered Simola’s drug addiction and weighed his rehabilitative needs

against his fifteen years of criminal activity and concluded that incarceration

would both prevent him from using drugs and preying on others to support

that addiction.

      Based on our review of the record, Simola has failed to establish 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.     Griffin, supra.      Thus, for all of the foregoing

reasons, we decline to disturb Simola’s judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/2014




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