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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

BRANDON LAWRENCE VANSPLINTER,

                            Appellant                 No. 155 MDA 2017


            Appeal from the Judgment of Sentence December 7, 2016
              In the Court of Common Pleas of Lackawanna County
    Criminal Division at No(s): CP-35-CR-0000513-2016, CP-35-CR-0002734-
                                      2015


BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED NOVEMBER 03, 2017

        Brandon Lawrence Vansplinter (“Appellant”) appeals the judgment of

sentence imposed after he pled guilty to one count of delivery of a controlled

substance, one count of homicide by vehicle while driving under the

influence, and one count of driving under the influence (“DUI”).1 We affirm.

        In August and September of 2015, Appellant sold Oxycodone to a

confidential informant who worked for the Pennsylvania State Police.      The

police filed a criminal complaint at docket number CP-35-CR-0002734-2015

(“2734-CR-2015”) on October 30, 2015, charging Appellant with multiple
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   35 P.S. § 780-113(a)(30), 75 Pa.C.S. § 3735(a), and 75 Pa.C.S.
§ 3802(d)(2), respectively.
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drug related offenses.     Appellant waived a preliminary hearing, and the

Commonwealth filed a two-count criminal information on January 12, 2016.

        On November 27, 2015, while under the influence of heroin and

Xanax, Appellant drove his vehicle into the back of a tractor trailer, killing

his girlfriend/passenger, Carly Otto (“the victim”). The police filed a criminal

complaint at docket number CP-35-CR-0000513-2016 (“513-CR-2016”) on

February 24, 2016, charging Appellant with homicide by vehicle (DUI), DUI,

and other criminal offenses.    Appellant waived a preliminary hearing, and

the Commonwealth filed a thirteen-count criminal information on April 7,

2016.

        Pursuant to a negotiated plea agreement, Appellant pled guilty at both

dockets, as indicated above, on September 12, 2016, in exchange for the

Commonwealth entering nolle prosequis on the remaining charges. The trial

court sentenced Appellant on December 7, 2016, to incarceration for an

aggregate term of five years to eleven years, which fell within the

aggravated sentencing range.      Appellant filed a post-sentence motion on

December 16, 2016, seeking reconsideration of his sentence. The trial court

denied Appellant’s motion by order dated December 20, 2016, and filed on

January 11, 2017. This timely appeal followed. Appellant and the trial court

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

        On appeal, Appellant presents two questions for our consideration:

        1.    Did the trial court abuse its discretion by imposing a
        sentence at the highest end of the aggravated range of the

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      Pennsylvania Sentencing Guidelines, by failing to consider the
      relevant sentencing criteria of the Pennsylvania Sentencing Code
      within 42 Pa.C.S.A. § 9721(b), failing to consider mitigating
      circumstances, erroneously finding that [Appellant] committed
      homicide by vehicle – DUI while on bail to justify the aggravated
      sentence and, then, by failing to state sufficient reasons on the
      record for the sentence imposed?

      2.    Did the trial court err and/or abuse its discretion in failing
      to run the sentences in homicide by vehicle – DUI and controlled
      substance cases concurrent to one another?

Appellant’s Brief at 4.

      Appellant’s issues challenge the discretionary aspects of his sentence.

“The right to appellate review of the discretionary aspects of a sentence is

not absolute.” Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super.

2014). Rather, where an appellant challenges the discretionary aspects of a

sentence, 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):

      [a]n 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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Id. at 170 (citation and internal brackets omitted).

      Herein, the first, second, and third requirements of the four-part test

are met: Appellant brought a timely appeal, challenged his sentence in a

post-sentence motion, and included in his brief the necessary separate

concise statement of the reasons relied upon for allowance of appeal

pursuant to Pa.R.A.P. 2119(f).    Notice of Appeal, 1/18/17; Post-Sentence

Motion, 12/16/16; Appellant’s Brief at 17.       Thus, we turn to whether

Appellant presents a substantial question that the sentence appealed from is

not appropriate under the Sentencing Code.

      The determination of whether there is a substantial question is made

on a case-by-case basis, and this Court will allow the appeal 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. Sierra, 752 A.2d 910, 912–913

(Pa. Super. 2000).    “[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. Provenzano, 50 A.3d

148, 154 (Pa. Super. 2012) (citation omitted). “Our inquiry must focus on

the reasons for which the appeal is sought, in contrast to the facts

underlying the appeal, which are necessary only to decide the appeal on the




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merits.” Commonwealth v. Knox, 165 A.3d 925, 929 (Pa. Super. 2017)

(quoting Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)).

        In his petition for allowance of appeal, Appellant argues that the trial

court imposed an aggravated-range sentence without considering mitigating

factors.   Appellant’s Brief at 17 (Pa.R.A.P. 2119(f) Statement, 9/19/17, at

¶¶ 10, 12, 13, 16, 17).     Appellant also asserts that the aggravated-range

sentence was manifestly excessive, too severe a punishment, and based on

erroneous and improper factors. Id. (Rule 2119(f) Statement at ¶¶ 11, 15,

18).     Appellant concludes that his sentence violates the Pennsylvania

Sentencing Code and fundamental norms of sentencing, and, therefore, he

has presented a substantial question for allowance of this appeal.       Id. at

¶ 19.    The Commonwealth objects, arguing that Appellant fails to state a

substantial question. Commonwealth’s Brief at 5.

        To the extent Appellant complains that the trial court imposed an

aggravated-range or manifestly excessive sentence without considering

mitigating     circumstances,    a   substantial   question    exists.     See

Commonwealth v. Dodge, 77 A.3d 1263, 1272–1273 (Pa. Super. 2013)

(en banc) (“The substantial question . . . is an ‘excessive sentence claim in

conjunction with an assertion that the court did not consider mitigating

factors.’”). Similarly, insofar as Appellant claims that the trial court imposed

an aggravated-range sentence based on incorrect or impermissible factors, a

substantial question exists.    See Commonwealth v. Stewart, 867 A.2d


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589, 592 (Pa. Super. 2005) (“Based on [a]ppellant’s assertion that the

sentencing court considered improper factors in placing the sentence in the

aggravated range, we conclude that [a]ppellant presents a substantial

question on appeal.”). Thus, we grant Appellant’s petition for allowance of

appeal with regard to his first issue and review its merits.

      Our standard of review is well-settled:

      “[I]mposition of sentence is vested in the discretion of the
      sentencing court and will not be disturbed by an appellate court
      absent a manifest abuse of discretion.” Commonwealth v.
      Griffin, 804 A.2d 1, 7 (Pa. Super. 2002) (citation omitted). “An
      abuse of discretion is more than just an error in judgment and,
      on appeal, the trial court will not be found to have abused its
      discretion unless the record discloses that the judgment
      exercised was manifestly unreasonable, or the result of
      partiality, prejudice, bias or ill-will.” Id. (citation omitted). “If
      the sentence is ‘not unreasonable,’ the appellate court must
      affirm.” Id. (citation omitted).

Commonwealth v. Simpson, 829 A.2d 334, 336 (Pa. Super. 2003).                   A

sentencing court “is required to consider the particular circumstances of the

offense and the character of the defendant.” Griffin, 804 A.2d at 10. “In

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

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

      Appellant complains that the trial court relied upon erroneous or

improper factors in sentencing Appellant within the aggravated range of the

sentencing    guidelines   for    the   homicide-by-vehicle    (DUI)   conviction.

Appellant’s Brief at 21.         Specifically, Appellant claims the trial court

erroneously believed that Appellant was on bail from the controlled-


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substance offense when the fatal vehicle accident occurred, it wrongly

characterized Appellant as having no respect for authority, and it failed to

provide adequate reasons for the aggravated-range sentence.         Appellant’s

Brief at 25–28.

      Our review of the record suggests a basis for Appellant’s position. At

the sentencing hearing, the trial court stated:

      And the sentence of this court in [the homicide by vehicle while
      DUI] case will be that you are to be incarcerated in the state
      correctional [institution] for a minimum period of time which
      shall be 4 years to a maximum which shall be 8 years. That
      sentence falls in the aggravated range of the sentencing
      guidelines. And it is above the mandatory minimum [of three
      years]. And that is due to the fact that I find that this was
      -- this charge was committed while you were on bail on
      the prior felony charges that involve the sale of drugs.
      Although one plea, nevertheless, I considered the two different
      dates that factored into that. But insofar as the aggravated
      range of this case, the fact that it was committed while
      you were on bail. And secondly, that I do not accept that you
      are truly remorseful for your conduct here.

N.T., 12/7/16, at 38 (emphases supplied).         In its opinion to this Court,

however, the trial court justified the aggravated-range sentence as follows:

            [Appellant] also asserts that the court relied on incorrect
      and impermissible factors in sentencing him in the aggravated
      range. First, he asserts that the court incorrectly believed that
      he was on bail at the time of committing the homicide by motor
      vehicle charge. While [Appellant] is correct that this court was
      mistaken in believing that he had already been arrested for the
      delivery of a controlled substance charges and was released on
      bail when he committed the homicide by motor vehicle, he is
      incorrect that this was the only factor that led the court to
      sentence him in the aggravated range. As this court stated at
      the time of sentencing, it considered many factors in
      imposing sentence here, including [Appellant’s] lifelong
      disrespect for authority, his failure to complete the PATH

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      program while released on bail in this case, his failure to
      comply with the condition of his bail that he refrain from
      driving a motor vehicle, and his defiance with this court
      when confronted with this violation....       [Appellant’s]
      conduct while a student demonstrated to the court that
      [Appellant’s] lack of respect for authority, which he
      exhibited while in school, continued up to the time of the
      current crimes and even in his inability to comply with the
      terms of his release on bail.

Trial Court Opinion, 3/17/17, at 7–8 (emphases supplied).

      Cognizant of our standard of review, we discern no abuse of the trial

court’s discretion in imposing an aggravated-range sentence. Although the

trial court was wrong about Appellant’s bail status, it carefully considered

numerous appropriate factors in fashioning Appellant’s sentence, all of which

are supported by the record.      Trial Court Opinion, 3/17/17, at 7–8; N.T.,

12/7/16, at 33–37. Moreover, as discussed below, the trial court had the

benefit of a presentence investigation report (“PSI”).     Thus, we conclude

that Appellant is not entitled to relief on this claim.

      Appellant also contends that the trial court failed to consider mitigating

factors.   Specifically, Appellant identifies the following: he came from a

broken home in a violent neighborhood; from an early age, he provided

emotional and familial support to his single mother and siblings; he suffered

from emotional and learning disabilities; he developed an opioid addiction at

age fourteen; he provided emotional and financial support to the victim and

her daughter; he did not have a juvenile record; he completed court-ordered

treatments and voluntarily participated in other drug treatment programs;


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he produced clean drug screens while on bail; he took responsibility for the

accident and pled guilty to the most serious charges; and he expressed

remorse for his conduct. Appellant’s Brief at 29–32.

      An assertion that the trial court did not consider mitigating factors is

often an assertion that the court did not accord the factors the weight that

the defendant wished.    Commonwealth v. Proctor, 156 A.3d 261, 274

(Pa. Super. 2017); accord Commonwealth v. Raven, 97 A.3d 1244, 1255

(Pa. Super. 2014) (“The gist of Raven’s argument is not that the court failed

to consider the pertinent sentencing factors, but rather that the court

weighed those factors in a manner inconsistent with his wishes.”).

Moreover, where the sentencing judge has the benefit of a PSI, “it will be

presumed that he or she was aware of the relevant information regarding

the defendant’s character and weighed those considerations along with

mitigating statutory factors.” Commonwealth v. Finnecy, 135 A.3d 1028,

1038 (Pa. Super. 2016); see also Commonwealth v. Downing, 990 A.2d

788, 794 (Pa. Super. 2010) (“Our Supreme Court has determined that

where the trial court is informed by a [PSI], 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.”).

      With respect to Appellant’s proffered mitigating factors, the trial court

received and reviewed five letters on behalf of Appellant in advance of the


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sentencing hearing. N.T., 12/7/16, at 21. Moreover, the trial court heard

testimony at the sentencing hearing from Appellant’s sister and his mother,

as well as argument from Appellant’s counsel, regarding Appellant’s

remorse, his addiction, his attempts to obtain treatment, and his acceptance

of responsibility. Id. at 23–31. The trial court also heard from Appellant.

Id. at 31–32. The trial court had the benefit of a PSI. From the bench, the

trial court explained the difficulty of the case from a sentencing perspective

and, contrary to Appellant’s claim, provided reasons for its sentence. Id. at

32–37. Finally, the trial court advises us that:

      [it] considered everything in [Appellant’s] extensive pre-
      sentence investigative file. The court considered all of this
      information as well as the testimony at the sentencing hearing
      and weighed it against the mitigating factors in sentencing
      [Appellant] in the aggravated range.      [Appellant] has not
      indicated what information the court failed to consider that
      would have changed the sentence here.

Trial Court Opinion, 3/17/17, at 7.

      Based on the foregoing, Appellant’s mitigation argument does not

persuade us that the trial court abused its discretion in imposing an

aggravated-range sentence.     Armed with a PSI, the court considered the

above mitigating factors in the context of a fatal DUI-related car accident; it

simply did not accord those facts the weight Appellant desired. Accordingly,

Appellant’s claim does not warrant relief.

      Appellant’s second issue challenges the trial court’s imposition of

consecutive sentences on the homicide-by-vehicle (DUI) and possession


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convictions as resulting in a manifestly excessive sentence. Appellant’s Brief

at 33. This issue does not appear in Appellant’s Rule 2119(f) statement and,

therefore, could be deemed waived. However, because the Commonwealth

does not object to its omission, we address it. See Commonwealth v.

Karns, 50 A.3d 158, 166 (Pa. Super. 2012) (quoting Commonwealth v.

Robinson, 931 A.2d 15, 19–20 (Pa. Super. 2007) (“If a defendant fails to

include an issue in his Rule 2119(f) statement, and the Commonwealth

objects, then the issue is waived and this Court may not review the

claim.”)).

      This Court has recognized for years that 42 Pa.C.S. § 9721(a) affords

the sentencing court discretion to impose its sentence concurrently or

consecutively to other sentences being imposed at the same time or to

sentences already imposed, and that a challenge to the imposition of

consecutive rather than concurrent sentences does not present a substantial

question to justify this Court’s review. Commonwealth v. Lloyd, 878 A.2d

867, 873 (Pa. Super. 2005) (citing Commonwealth v. Hoag, 665 A.2d

1212, 1214 (Pa. Super. 1995)).      However, a substantial question exists

where an appellant challenges the imposition of his consecutive sentences as

unduly excessive together with his claim that the court failed to consider

mitigating factors upon fashioning its sentence.        Commonwealth v.

Swope, 123 A.3d 333, 340 (Pa. Super. 2015). Thus, we grant Appellant’s




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petition for allowance of appeal with regard to his second issue and proceed

to the merits.

      In support of his second issue, Appellant reasserts his claims that the

trial court relied on an erroneous belief about his bail status and did not

consider mitigation.   Appellant’s Brief at 35.   Appellant adds that the trial

court failed to consider the rehabilitative needs of Appellant, an opioid

addict. Id. According to Appellant, “[i]mposing consecutive sentences, in

the present matter, satisfies none of the goals or general principles of the

Sentencing Code and Guidelines. The sentence, as a whole, results in being

purely punitive.” Id. at 36.

      The trial court justified the consecutive sentences as follows:

      [Appellant] here committed two distinct deliveries of a controlled
      substance in August and September of 2015, as well as the
      homicide by motor vehicle while driving under the influence on
      November 27, 2015.        As the court stated when imposing
      sentence, these were two separate and serious crimes and it is
      tragic and ironic that the use of drugs caused the homicide by
      motor vehicle charge to occur. In light of the serious criminal
      conduct committed by [Appellant] at different times, consecutive
      sentences were appropriate here.

Trial Court Opinion, 3/17/17, at 8–9.

      Reviewing for an abuse of discretion, we observe none. The trial court

carefully considered the gravity of Appellant’s two possession offenses and

his homicide-by-vehicle (DUI) offense, his addiction, his conduct before and

after the fatal accident, the protective needs of the community, and the

impact of Appellant’s crimes on the victim’s family. N.T., 12/7/16, at 33–


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37; Trial Court Opinion, 3/17/17, at 4, 6–9. The DUI offense merged with

the homicide-by-vehicle (DUI) offense for sentencing purposes, and the drug

sentence fell “in the high end of the standard range because the amount of

drugs involved indicates that [Appellant] was not a small time user dealing

to support his own habit. . . .” Trial Court Opinion, 3/17/17, at 4. Based on

the foregoing, we conclude that Appellant’s sentence is not excessive or

unreasonable in light of the crimes committed and the sentencing court’s

consideration of the individual circumstances of this case.

      Although    Appellant   raised   substantial    questions   concerning   the

sentences imposed, after review, we conclude there is no merit to his claims

and no relief is due. The sentences were not manifestly excessive, and the

trial court did not abuse its discretion.       Accordingly, we affirm Appellant’s

judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/3/2017




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