J-S67029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    EUGENE DUKE FARLEY, III                    :
                                               :
                       Appellant               :     No. 979 MDA 2019

          Appeal from the Judgment of Sentence Entered May 15, 2019
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-CR-0004464-2012


BEFORE:      OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.:                           FILED: DECEMBER 26, 2019

        Appellant, Eugene Duke Farley, III, appeals from the May 15, 2019

Judgment of Sentence of ten months’ to four years’ imprisonment imposed at

Docket Number 4464-2012 following a violation of probation (“VOP”) hearing.

On appeal, Appellant challenges the discretionary aspects of his sentence.

After careful review, we affirm.

        The relevant facts and procedural history are as follows. On March 17,

2014, Appellant pleaded guilty to Delivery of a Controlled Substance

(cocaine),1 and the court imposed a sentence of two years’ special probation.2
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   35 P.S. § 780-113(a)(30).

2 That same day, Appellant also pleaded guilty at a separate docket number
to Possession of a Firearm, 18 Pa.C.S. § 6105(a)(1), for which the court
J-S67029-19



While serving probation, Reading police arrested Appellant for Possession of a

Controlled Substance.3 A jury convicted Appellant of this offense at Docket

Number 4633-2018. The court sentenced him to eight to twenty-four months’

incarceration. As a result of this new conviction, the court held a Gagnon II

hearing, at which Appellant admitted that his use of a controlled substance

and subsequent conviction violated the terms of his probation. The VOP court

found Appellant in violation, and sentenced him to a term of ten months’ to

four years’ incarceration, with 224 days’ credit for time served.4

        Appellant filed a Motion for Modification of Sentence in which he

challenged the discretionary aspects of his sentence. In particular, Appellant

alleged that the court failed to place sufficient reasons on the record in support

of its sentence and that the court failed to consider adequately Appellant’s

mitigating circumstances. Motion, 5/24/19, at ¶ 10, 11. Following a hearing,

on June 18, 2019, the court denied Appellant’s Motion.

        This timely appeal followed. Both Appellant and the trial court have

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

        Appellant raises the following issue on appeal:

____________________________________________


imposed a sentence of 18 to 48 months’ incarceration. The court ordered
Appellant’s probationary sentence for his PWID conviction to run consecutive
to his Possession of a Firearm sentence.

3   35 P.S. § 780-113(a)(16).

4The court ordered this sentence to run concurrently with Appellant’s eight to
twenty-four month sentence of incarceration for his Possession of a Controlled
Substance at Docket Number 4633-2018.

                                           -2-
J-S67029-19


      [] Whether the [t]rial [c]ourt erred by imposing a sentence of not
      less than 10 months nor more than 4 years by failing to take into
      consideration Appellant’s mitigat[ing] factors, which included:
      Appellant’s troubled past, attending counselling programs while in
      prison[,] and the available family support of mother.

Appellant’s Brief at 5.

      Appellant claims that the VOP court abused its discretion in sentencing

him because it failed to take into account “numerous mitigating factors,”

including:    (1)   Appellant’s   substance     abuse   problem   and   need   for

rehabilitation; (2) the close relationship he has with, and the support he

receives from, his mother; and (3) Appellant’s acceptance of responsibility for

his mistakes. Appellant’s Brief at 14-16.

      Challenges     to   the   discretionary   aspects of sentencing are      not

automatically reviewable as a matter of right. Commonwealth v. Hunter,

768 A.2d 1136, 1144 (Pa. Super. 2001). Prior to reaching the merits of a

discretionary sentencing issue, we must determine: (1) whether appellant has

filed a timely notice of appeal; (2) whether the issue was properly preserved

at sentencing or in a motion to reconsider and modify sentence; (3) whether

appellant’s brief sufficiently addresses the challenge in a statement included

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

      Appellant has satisfied each of the first three prerequisites. We, thus,

proceed to address whether Appellant has raised a substantial question for

our review.


                                        -3-
J-S67029-19



      Whether a substantial question has been raised regarding discretionary

sentencing is determined on a case-by-case basis.        Commonwealth v.

Moury, 992 A.2d 162, 170 (Pa. Super. 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.” Id. (citation and quotation omitted).

      Claims that the sentencing court did not adequately consider mitigating

factors generally do not raise a substantial question.   Commonwealth v.

Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013). A specific claim that the court

refused to weigh mitigating factors as an appellant wished, absent more, does

not raise a substantial question. Moury, 992 A.2d at 175; Commonwealth

v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014) (“[W]e have held that a claim

that a court did not weigh the factors as an appellant wishes does not raise a

substantial question”).

      Appellant’s claim amounts to no more than a bald allegation that the

court abused its discretion in failing to consider mitigating factors as he

wished.   Pursuant to the above case law, Appellant has failed to raise a

substantial question.     His challenge to the discretionary aspects of his

sentence, thus, fails.

      Judgment of Sentence affirmed.

      President Judge Emeritus Stevens joins the memorandum.

      Judge Olson concurs in result.

                                       -4-
J-S67029-19




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/26/2019




                          -5-
