J-S70028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    MICHAEL PEEKS                              :
                                               :
                      Appellant                :   No. 431 MDA 2017

            Appeal from the Judgment of Sentence January 26, 2017
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0001352-2016


BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.

MEMORANDUM BY SHOGAN, J.:                             FILED JANUARY 12, 2018

        Appellant, Michael Peeks, appeals from the judgment of sentence

entered following his conviction of one count of escape. We affirm.

        The trial court summarized the history of this case as follows:

              Appellant had been at the Dauphin County Work Release
        Center for drug related charges. (Notes of Testimony, Guilty
        Plea & Sentencing, January 26, 2017 p. 3-4). On November 22,
        2015, he was permitted to leave the center to go to work at
        Arooga’s. (N.T. [p]. 4). Appellant did not return from work per
        his usual schedule. Id. A [“be on the look out”] was put out for
        his arrest as he never returned to the center. Id. Ultimately, a
        GPS check was performed and it was discovered that Appellant
        went to an unauthorized location at Herr and Susquehanna
        Streets in Harrisburg. Id.[1]



____________________________________________


1 On November 23, 2015, the police filed a criminal complaint charging
Appellant with the crime of escape, 18 Pa.C.S. § 5121.
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           [Appellant] completed the second chance program at
      Dauphin County Prison. (N.T. p. 4). He remained in the
      program to help with his recovery and had a letter from GQ
      Barbershop in Carlisle, PA, indicating they were willing to hire
      him upon release. (N.T. p. 5).

            [On January 26, 2017,] Appellant pleaded guilty to the
      escape charge with no plea agreement in place. (N.T. p. 2[).]
      He acknowledged reviewing a guilty plea colloquy with his
      attorney and indicated that he understood everything in it,
      including the maximum penalties. (N.T. p. 3)[.] Per the guilty
      plea colloquy, the maximum sentence of incarceration was 7
      years and the maximum fine was $15,000.

Trial Court Opinion, 5/15/17, at 1-2 (footnote omitted). At the close of the

guilty-plea hearing, the trial court sentenced Appellant to serve a term of

incarceration of one and one-half to three years. In addition, the trial court

set forth the subsequent procedural history of this matter as follows:

            On January 30, 2017, Appellant filed an optional Post-
      Sentence Motion claiming that [his] sentence was excessive and
      unreasonable such that is [sic] constituted too severe a
      punishment in light of his rehabilitative needs and what is
      needed to protect the public. Thereafter on February 1, 2017,
      this [c]ourt denied the motion. On February 27, 2017, this
      [c]ourt received a timely Notice of Appeal filed with the Superior
      Court of Pennsylvania. This [c]ourt ordered Appellant on March
      6, 2017, to file a concise statement of matters complained of on
      appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied with
      said Order on March 27, 2017.

Id. at 1.   The trial court has authored an opinion pursuant to Pa.R.A.P.

1925(a).

      Appellant presents the following issue for our review:

           WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
      SENTENCING APPELLANT TO ONE AND A HALF (1 1/2) TO THREE
      (3) YEARS OF INCARCERATION WHERE THE SENTENCE IS


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      EXCESSIVE AND UNREASONABLE IN LIGHT OF THE APPELLANT’S
      AGE, ADDICTION ISSUES, AND REHABILITATIVE NEEDS?

Appellant’s Brief at 5 (underlining omitted).

      Appellant’s sole issue challenges the discretionary aspects of his

sentence.   It is well settled that there is no absolute right to appeal the

discretionary aspects of a sentence. Commonwealth v. Hartle, 894 A.2d

800, 805 (Pa. Super. 2006). Rather, in such a case, the appeal should be

considered a petition for allowance of appeal. Commonwealth v. W.H.M.,

932 A.2d 155, 163 (Pa. Super. 2007).

      As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

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

            [W]e 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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)).

      Whether a particular issue constitutes a substantial question about the

appropriateness of sentence is a question to be evaluated on a case-by-case



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basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 2001).

As to what constitutes a substantial question, this Court does not accept

bald assertions of sentencing errors.          Commonwealth v. Malovich, 903

A.2d 1247, 1252 (Pa. Super. 2006).                An appellant must articulate the

reasons the sentencing court’s actions violated the sentencing code. Id.

        Herein, the first three requirements of the four-part test are met.

Appellant brought an appropriate appeal, raised the challenge in a post-

sentence motion, and he included in his appellate brief the necessary concise

statement of the reasons relied upon for allowance of appeal pursuant to

Pa.R.A.P. 2119(f). Therefore, we next determine whether Appellant raises a

substantial question requiring us to review the discretionary aspects of the

sentence imposed by the trial court.

        Appellant argues that the trial court imposed an excessive sentence in

light   of   Appellant’s   age,    addiction     issues,   and   rehabilitative   needs.

Appellant’s Brief at 11. Considering this claim to be an allegation that the

sentencing court failed to consider factors set forth under 42 Pa.C.S. §

9721(b),2 we conclude that, in this instance, Appellant has raised a

substantial question.      See Commonwealth v. Fullin, 892 A.2d 843, 847

(Pa. Super. 2006) (concluding that the appellant raised a substantial

____________________________________________


2  We note that the factors to be considered under 42 Pa.C.S. § 9721(b)
include the protection of the public, gravity of offense in relation to impact
on victim and community, and rehabilitative needs of the defendant.



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question where it was alleged that the trial court failed to properly consider

the factors set forth in 42 Pa.C.S. § 9721(b)). Because Appellant has stated

a substantial question, we will address this claim on appeal.

      It is undisputed that 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. Fullin, 892 A.2d at 847. In

this context, an abuse of discretion is not shown merely by an error in

judgment.    Id.   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. Id.

      Indeed, the sentencing judge has broad discretion in determining the

proper penalty, and this Court accords the sentencing court great deference,

as the sentencing court is in the best position to view the defendant’s

character, displays of remorse, defiance, indifference, and the overall effect

and nature of the crime.     Commonwealth v. Walls, 926 A.2d 957, 961

(Pa. 2007) (quotations and citations omitted).      As previously noted, when

imposing a sentence, the sentencing court must consider “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.” 42 Pa.C.S. § 9721(b). As we have stated, “a court is required to

consider the particular circumstances of the offense and the character of the


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defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002).

“In particular, the court should refer to the defendant’s prior criminal record,

his age, personal characteristics and his potential for rehabilitation.” Id.

        Appellant asserts that, in fashioning his sentence, the sentencing court

failed to consider properly Appellant’s age, the fact that he had completed a

“second chance” program in Dauphin County Prison, and with addiction

treatment outside of prison Appellant could become a productive member of

society. Appellant’s Brief at 13. However, we discern no abuse of discretion

on the part of the sentencing court.

        Our review of the record reflects that prior to imposing Appellant’s

sentence, the court reviewed Appellant’s history, heard defense counsel’s

argument and recitation regarding Appellant’s attempts at continuing his

recovery from addiction, and heard Appellant’s allocution expressing his

desire to continue with his addiction recovery. N.T., 1/26/17 at 4-7. Also,

the sentencing court stated, “Well, I don’t underestimate that you’re a smart

man. I just think the drugs were starting to take over . . . and you allowed

them to.”     Id. at 5-6.   Furthermore, the sentencing court acknowledged

Appellant’s extensive prior criminal history and stated, “You gave yourself a

book of a record. . . . Pretty bad? You’re a re-fel. There is no higher.” Id.

at 6-7. The sentencing court further stated, “I guess my concern though is

you had a prior escape so you knew what this charge would do to you.” Id.

at 7.


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      Moreover, the sentencing court made the following statement when it

imposed Appellant’s sentence:

            I think you are trying to make strides in your life but I still
      think that you still need to get the treatment and be detained at
      the same time.

             So at this time, I’m sentencing you at Count 1 to one and
      a half to three years in a state prison. I’m going to ask the state
      prison to evaluate you for the best facility, one that provides you
      with drug and alcohol treatment so that once you are released
      then you can start making strides to better yourself. Do you
      understand that?

N.T., 1/26/17, at 8.

      In addition, the trial court offered the following discussion in

addressing Appellant’s sentencing issue:

            In the present case, the sentence was within the statutory
      limits so Appellant argues it was manifestly excessive.          He
      specifically indicates that he completed the Second Chance
      Program after the Court suggested he do so and was under the
      impression that if he completed the program he would be
      paroled at the time of sentencing. Additionally, the sentence
      required that he be transferred to a State Correctional Institution
      after he had served a year in [D]auphin County Prison.

            Indeed, following sentencing, Appellant motioned to
      withdraw his guilty plea, which was denied. At that time he
      addressed the Court to say that the last time he was in front of
      the Court, we indicated we would take a chance on him if he
      completed the program. Our response was then and is now “I
      did. And that’s why I gave you only one and half to three. I was
      actually looking at 5 to 10.” (N.T. p. 10).

            His impression of what the sentence would be at a prior
      hearing is entirely irrelevant when it comes to the actual
      sentence. He knew he was making an open plea. We explained
      that he was a re-fel who would have known what this escape
      charge would do. (N.T. p. 6-7). Lastly we explained that while
      we did see an effort to make strides in his life, it seemed more

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      appropriate to provide him treatment while being detained.
      (N.T. p. 8).

            Finally, the location of his incarceration is a determination
      made entirely by statu[t]e. His time at Dauphin County Prison
      was relatively lengthy due to his treatment program. Had he not
      undergone treatment, he would have been able to appear in
      front of this [c]ourt earlier and he would not have spent so much
      time at [Dauphin County Prison]. In particular, as stated at
      sentencing, we felt that a State Correctional Institution would
      provide Appellant with the appropriate treatment programs to
      help him in his recovery. (N.T. p. 8).

Trial Court Opinion, 5/15/17, at 2-3.

      Upon review of the record, we conclude the trial court presented

adequate reasons for imposing the instant sentence upon Appellant. There

is no indication that the sentencing court ignored any relevant factors in

fashioning the sentence. Accordingly, it is our determination that there was

no abuse of discretion on the part of the sentencing court.          Thus, we

conclude this claim lacks merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2018




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