J-S85037-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :     IN THE SUPERIOR COURT OF
                                               :           PENNSYLVANIA
              v.                               :
                                               :
DANIEL HOWARTH,                                :
                                               :
                     Appellant                 :            No. 839 EDA 2016

            Appeal from the Judgment of Sentence January 19, 2016
                in the Court of Common Pleas of Bucks County,
               Criminal Division, No(s): CP-09-CR-0001359-2015

BEFORE: PANELLA, RANSOM and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                         FILED FEBRUARY 13, 2017

        Daniel Howarth (“Howarth”) appeals from the judgment of sentence

imposed following his guilty pleas to conspiracy to commit aggravated

assault,    simple   assault,    recklessly   endangering   another   person   and

disorderly conduct.1 We affirm.

        In its Opinion, the trial court set forth the relevant factual and

procedural history, which we adopt for the purpose of this appeal. See Trial

Court Opinion, 5/2/16, at 1-2.

        On appeal, Howarth raises the following issue for our review: “Did the

[trial c]ourt err in imposing a sentence of not less than two and one half




1
    See 18 Pa.C.S.A. §§ 903, 2702(a)(1), 2701(a)(3), 2705, 5503(a)(4).
J-S85037-16


[years,] nor more than five years [in prison,] followed by five years of

probation?” Brief for Appellant at 4.2

      Howarth contends that the sentencing court failed to consider his lack

of a criminal record, age, rehabilitative needs, troubled background, decision

to plead guilty, and his expression of remorse. Id. at 11. Howarth claims

that, although the sentencing court described in its Opinion the futile efforts

made by the juvenile probation department to rehabilitate Howarth, the

court made no mention of this deficiency at the sentencing hearing.        Id.

Howarth argues that, when sentencing him, the sentencing court’s primary

focus was the seriousness of the crime, and the distinction between co-

defendants.   Id.   Howarth contends that the sentencing court abused its

discretion by sentencing him to a state prison term, rather than imposing a

mitigated-range sentence, which would have permitted Howarth to remain in

the county jail.    Id. at 12.   Howarth emphasizes that this was his first

violent crime, the complainant took the first step toward violent behavior,

and the assaultive behavior resulting in injury was not linked to Howarth.

Id.   Howarth claims that the sentence imposed is unduly harsh and

excessive, given his role in the crimes, his background, and his young age.3

Id. at 13.


2
  Although Howarth stated his issue somewhat differently in his Concise
Statement, we will review his issue. See Pa.R.A.P 2116(a).

3
 Howarth states that he was 18-years-old at the time of the crime.        See
Brief for Appellant at 10.


                                  -2-
J-S85037-16


     In its Opinion, the sentencing court addressed Howarth’s issue, set

forth the relevant law, and concluded that the issue lacks merit. See Trial

Court Opinion, 5/2/16, at 3-7.      We agree with the reasoning of the

sentencing court and affirm on this basis as to Howarth’s issue. See id.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/13/2017




                                 -3-
                                                                                  Circulated 01/09/2017 12:32 PM




         IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA
                              CRIMINAL DMSION

    COMMONWEALTH OF PENNSYLVANIA                             No. CP-09-CR-1359-2015

           v.
    DANIEL HOWARTH

                                                  OPINION

           On appeal, the appellant challenges the sentence he received from this Court for

    Conspiracy to Commit Aggravated Assault and related charges. This opinion is filed pursuant to

    Pennsylvania Rule of Appellate Procedure 1925(a).




    I.     FACTS AND PROCEDURE

           On June 15, 2015, the appellant pied guilty to Conspiracy to Commit Aggravated

Assault1, Simple Assault', Recklessly Endangering Another Person3, and Disorderly Conduct4

based upon the following facts:

           On the night of October 19, 2014, William Kitcherman heard a loud banging at the front

door while he was watching TV in bed at home. N.T. 6/15/15, p. 14. Mr. Kitcherman did not

answer the front door, but then he heard knocking at his bedroom window and saw the co-

defendants, Erwin Baker, David Randall and the appellant. N.T. 6/15/15, p. 15. Mr. Kitcherman

had past contacts with all three individuals. N.T. 6/15/15, p. 15. Raymond Muldowney, Mr.

Kitcherman's stepfather, confronted the co-defendants and the appellant at the front door and had

a verbal altercation with them. N.T. 6/15/15, p. 15. Mr. Muldowney pushed Mr. Baker out of




1
  18 Pa.C.S.A.   § 903 and 18 Pa.C.S.A. § 2702(aXI).
2
  18 Pa.C.S.A.   § 270l(aX3).
3 18 Pa.C.S.A.   § 2705.
"18 Pa.C.S.A.    § 5503(aX4).

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 the doorway, and Mr. Baker fell to the ground. N.T. 6/15/15, pp. 15-16. The two co-defendants

 and the appellant punched Mr. Muldowney in the face causing him to fall, and they "kicked and

 stomped and punched" him. N.T. 6/15/15, p. 16. They all fled before the arrival of the police.

 N.T. 6/15/15, p. 16. Mr. Muldowney was subsequently diagnosed with "a punctured lung and

 several broken ribs.'' N.T. 6/15/15, p. 16.

         Sentencing was deferred for a presentence investigation report. N.T. 6/15/15, p. 37.

        On November 25, 2015, the appellant was sentenced to thirty months to ten years in a

 state correctional facility as to Count 1. On Count 2, he was-sentenced to a concurrent two years

 probation. No further penalty was imposed as to Counts 3 and 4. N.T. 11/25/15, p. 35. On

 December 3, 2015, the appellant filed a Motion for Reconsideration of Sentence. On January 19,

 2016, the appellant's Motion for Reconsideration was granted. N.T. 1/19/16, p. 8. As to Count

 l, the appellant was sentenced to two and-a-half to five years and a consecutive five years

 probation. N.T. 1/19/16, p. 8. As to Count 2, he was sentenced to a concurrent two years

 probation. N.T. 1/19/16, p. 8. No further penalty was imposed as to Counts 3 and 4. N. T.

 1/19/16, pp. 8-9.

        On March 2, 2016, the appellant filed a Petition for Post-Conviction Collateral Relief,

 seeking re-instatement of his direct appeal rights nunc pro tune. On March 15, 2016, the

appellant's Petition was granted. The appellant filed a Notice of Appeal on March 16, 2016.



II.     STATEMENT OF MAITERS COMPLAINED OF ON APPEAL

        On April 1, 2016, the appellant submitted a Concise Statement of Errors Complained of

on Appeal, raising the following issues for review, verbatim:

        1. The sentencing court focused only on the seriousness of the crimes charged.



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        2. The sentence was manifestly excessive and unduly harsh, in view of Defendant's

            troubled childhood, guilty plea lack of an adult criminal history and unusual

            circumstances of this crime.



ID.     DISCUSSION

        "Challenges to the discretionary aspects of sentencing do not entitle an appellant to

review as of right." Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. Ct. 2011)

(citations omitted). An appellant challenging the discretionary aspects of his sentence must meet

the following requirements:

               An appellant must invoke the reviewing court's jurisdiction by satisfying a
       four-part test: (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 [set forth in a separate section a concise
       statement of the reasons relied upon for allowance of appeal in accordance with]
       Pa.R.A.P. 2119(t); and (4) whether there is a substantial question that the sentence
       appealed from is not appropriate under the Sentencing Code.


       "The determination of what constitutes a substantial question must be evaluated on a

case-by-case basis." Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. Ct. 2010). "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 y. Caldwell, 117 A.3d 763, 768 (Pa. Super. Ct. 2015) (citations

omitted).

       Here, the appellant does not assert that the sentence was inconsistent with any statutory

or sentencing guidelines. He contends that "[t]he sentencing court focused only on the


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                                                                                                    20
seriousness of the crimes charged," and that "[t]he sentence was manifestly excessive and unduly

harsh, in view of Defendant's troubled childhood, guilty plea[,] lack of an adult criminal history

and unusual circumstances of this crime."

        The appellant's claims fail to raise a substantial question. "[The Superior Court] has held

on numerous occasions that a claim of inadequate consideration of mitigating factors does not

raise a substantial question for [its] review." Commonwealth v. Downing, 990 A.2d 788, 794

(Pa. Super. Ct. 2010) (citation omitted); See also Commonwealth v. Griffin, 65 A.3d 932, 936

(Pa. Super. Ct. 2013) (finding that defendant's claim that his sentence failed to take into account

his rehabilitative needs did not raise a substantial question); Commonwealth v. Cannon, 954

A.2d 1222, 1229 (Pa. Super, Ct. 2008) (concluding that the defendant failed to present a

substantial question when he claimed that trial court had failed to consider his rehabilitative

needs, age, and educational background); Commonwealth v. Mobley, 581 A.2d 949, 952 (Pa.

Super. Ct. 1990) (holding that a claim that the sentence failed to take into consideration

defendant's rehabilitative needs and was manifestly excessive did not raise a substantial question

where the sentence was within statutory and sentencing guidelines).

       However, even if we were to find that the appellant has raised a substantial question, his

allegations are without merit.

       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.
       To constitute an abuse of discretion, the sentence imposed must either exceed the
       statutory limits or be manifestly excessive. 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.

       In determining whether a sentence is manifestly excessive, the appellate court
       must give great weight to the sentencing court's discretion, as he or she is in the



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        best position to measure factors such as the nature of the crime, the defendant's
        character, and the defendant's display of remorse, defiance, or indifference.

Commonwealth v. Perry, 883 A.2d 599, 602-03 (Pa. Super. Ct. 2005) (citations omitted).


We further note:

        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 ("PSP'), we can assume the
        sentencing court was aware of the 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 (citations and internal quotation marks omitted). A trial court's

sentence cannot be considered excessive, absent more, when it was within the standard

range of the Sentencing Guidelines and a presentence investigation report was

considered.   Com, y. Cruz-Centeno,   668 A.2d 536, 546 (Pa. Super. Ct. 1995).

       This Court ordered and considered a presentence investigation which provided a

thorough review of the relevant factors.

       According to the presentence investigation report, on September 25, 2012, the appellant

was placed on a conditional six month Consent Decree. The underlying offenses were Theft By

Unlawful Taking and Receiving Stolen Property. The appellant was arrested for False

Identification to Law Enforcement on March 4, 2013. At the Adjudication and Disposition

Hearing, the petition that resulted in the above Consent Decree was withdrawn, along with two

other petitions that had been filed for smoking on school property and non-payment of fines, and

the appellant was adjudicated delinquent in the False Identification to Law Enforcement case.

He was placed on indefinite probation with conditions. On October 29, 2013, the appellant was

found in violation of his probation during a Violation Hearing, and the Court ordered that the

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                                                                                                   22
appellant be placed on probation, cooperate with ninety days at the Community Service

Foundation Restorative Reporting Center (RRC), undergo electronic monitoring and attend

school at Pennsbury. The appellant was discharged from the RRC, but the Twilight Program (an

alternative school) noted a decline in his effort in school immediately after his being discharged.

The appellant received a citation for underage drinking on Mar~h 30, 2014, and the Court

ordered that he be returned to the RRC during a Disposition Review Hearing on April 8, 2014.

On July 1, 2014, at a Violation Hearing, the appellant was found in violation of his probation and

ordered to be held at the Bucks County Youth Center pending placement at the Abraxas

Leadership Development Program for sixty days. On August 29, 2014, at a Placement Review

Hearing, the Court ordered that the appellant be discharged from Abraxas and returned home on

indefinite probation with conditions. On October 19, 2014, the appellant committed the assault

on Mr. Muldowney in this case. PSI, pp. 4-6.

        After reviewing the appellant's juvenile history, the Court concluded that Daniel Howarth

"has a less lengthy history than Erwin Balcer, in Juvenile Court. N.T. 1/19/16, pp. 10, 14; N.T.

11/25/15, pp. 6, 7, 21. It should be noted that the appellant was caught shoplifting from a 7-11

Store at the age of eleven or twelve. He began smoking marijuana at approximately the same

age and started drinking heavily at about thirteen years old. The appellant was given many

services through the Juvenile Court system, but he failed to take full advantage of these

opportunities. PSI, p. 11. The appellant's age was also specifically considered. N.T. 11/25/15,

p. 34; N.T. 1/19/16, pp. 8, 9.

       When assessing "the nature of the offense and the seriousness of the injuries involved,"

the Court emphasized that this was a "brutal assault" where the victim's "bones were broken."

Furthermore, the appellant went to victim's home. N.T. 1/19/16, p. 16; N.T. 11/25/15, pp. 31,


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                                                                                                      23
32. The Court carefully compared the relative histories and roles of the appellant and Mr. Baker

in this assault. N.T. 1/19/16, p. 14; N.T. 11/25/15, pp. 34-35.

       The Court's sentence was within the standard range of the guidelines. The standard

ranges for all Counts are as follows: 22-36 for Count l; RS-1 for Count 2; RS-1 for Count 3; RS-

RS for Count 4. Guideline Sentence Forms 1-4, Pennsylvania Commission on Sentencing,

6/15/15. As to Count 1, the appellant was sentenced to two and-a-half to five years and a

consecutive five years probation. N.T. 1/19/16, p. 8. As to Count 2, he was sentenced to a

concurrent two years probation. N.T. 1/19/16, p. 8. No further penalty was imposed as to

Counts 3 and 4. N.T. 1/19/16, pp. 8-9. Additionally, the Court sentenced the appellant below

the presentence investigation recommendation. N.T. 1/19/16, p. 9.

       It should be noted that at the reconsideration hearing, the appellant argued that a sentence

of thirty months to ten years would make it more likely that the appellant would be denied parole

and the Court reconsidered sentence on that basis. N.T. 1/19/16, p.6.

       After careful review of the record, this Court gave appropriate consideration of relevant

factors before imposing sentence. Thus, the appellant's contentions are without merit




                                                     BY THE COURT,




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