J-S75025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    NATHANIEL DARBY                            :
                                               :
                       Appellant               :   No. 3828 EDA 2016

             Appeal from the Judgment of Sentence June 23, 2016
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0001014-2015


BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY NICHOLS, J.:                            FILED JANUARY 15, 2019

        Appellant Nathaniel Darby appeals from the judgment of sentence

following his conviction for aggravated assault.1       Appellant challenges the

discretionary aspects of his sentence. We affirm.

        The trial court ably set forth the facts of this case and summarized the

testimony presented at trial in its opinion denying Appellant’s post-sentence

motion. See Trial Ct. Op., 1/17/18, at 2-5. Appellant waived the right to a

jury trial, and the matter proceeded to a bench trial on March 1, 2016. The

following day, Appellant was found guilty of aggravated assault. On June 23,




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1   18 Pa.C.S. § 2702(a)(1).
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2016, the trial court sentenced Appellant to a standard range sentence of 8½

to 17 years’ incarceration.2

       Appellant filed a post-sentence motion on June 27, 2016, seeking a

modification of his sentence. On August 12, 2016, the trial court docketed

Appellant’s pro se notice of appeal. On November 2, 2016, on application

from the Montgomery County Public Defender’s Office, this Court quashed

Appellant’s pro se appeal as interlocutory.       See Order, 2583 EDA 2016,

11/2/16 (citing Commonwealth v. Borrero, 692 A.2d 158, 160 (Pa. Super.

1997)). The trial court denied Appellant’s post-sentence motion on November

14, 2016. See generally Borrero, 692 A.2d at 160.

       Appellant filed a notice of appeal on December 14, 2016. On December

16, 2016, the trial court ordered Appellant to file a Pa.R.A.P. 1925(b)

statement, which he filed on February 2, 2017.3 Thereafter, the trial court

issued an opinion addressing Appellant’s claim.

       Appellant raises one question on appeal:

       Did the trial court’s failure to place proper consideration on the
       substantial mitigating factors presented at sentencing—such as
       [Appellant]’s serious medical conditions; his traumatic birth,
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2 Based on Appellant’s designation as a RFEL (repeat felon) and an offense
gravity score of 11, the standard minimum guideline range was 7 to 8½ years’
incarceration. See 204 Pa.C.S. § 303.16(a).

3Appellant’s Rule 1925(b) statement, filed 48 days after the trial court’s order,
was untimely. However, “when counsel has filed an untimely Rule 1925(b)
statement and the trial court has addressed those issues[,] we need not
remand and may address the merits of the issues presented.”
Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa. Super. 2012) (citation
omitted).

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      childhood, and upbringing; and his demonstrated history of
      serious mental illness, including PTSD and bi-polar disorder—
      render the sentence manifestly unreasonable?

Appellant’s Brief at 2.

      Appellant contends that his sentence is excessive, in that his “case

involves special mitigating circumstances that make the application of a

standard range sentence unreasonable.” Id. at 10. Appellant asserts that

the trial court did not properly consider the mitigating circumstances of his

case, and instead appeared to “consider those factors as part of an overall

assessment of his potential danger to society.” Id. at 8.

      Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910,

912 (Pa. Super. 2000).      Prior to reaching the merits of a discretionary

sentencing issue, we must determine

         (1) whether the appeal is timely; (2) whether [the
         a]ppellant preserved his issue; (3) whether [the a]ppellant’s
         brief includes a concise statement of the reasons relied upon
         for allowance of appeal with respect to the discretionary
         aspects of sentence; and (4) whether the concise statement
         raises a substantial question that the sentence is
         appropriate under the [S]entencing [C]ode.

Commonwealth v. Rush, 162 A.3d 530, 543 (Pa. Super. 2017) (citation

omitted).

      The determination of whether there is a substantial question is made on

a case-by-case basis. Id. “A substantial question exists where a defendant

raises a plausible argument that the sentence violates a provision of the



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sentencing code or is contrary to the fundamental norms of the sentencing

process.” Id. (citation and quotation marks omitted).

      Instantly, Appellant preserved his issue in a post-sentence motion and

timely appealed from the denial of his post-sentence motion. Appellant also

included in his brief a Pa.R.A.P. 2119(f) statement. Further, Appellant has

raised a substantial question for our review.       See Commonwealth v.

Zeigler, 112 A.3d 656, 662 (Pa. Super. 2015) (stating that “an excessiveness

claim in conjunction with an assertion that the court did not adequately

consider a mitigating factor may present a substantial question” (citation

omitted)).

      Our standard of review in this context is as follows:

      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.

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation

omitted).

      In fashioning a sentence, “the trial court is required to consider the

particular circumstances of the offense and the character of the defendant.”

See Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009)

(citation omitted); see also 42 Pa.C.S. § 9721(b)).           The court should

reference “the defendant’s prior criminal record, age, personal characteristics,

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and potential for rehabilitation.”         Ventura, 975 A.2d at 1135 (citation

omitted).    Although “[a] sentencing court need not undertake a lengthy

discourse for its reasons for imposing a sentence, . . . the record as a whole

must reflect the sentencing court’s consideration of the facts of the crime and

character of the offender.” Commonwealth v. Crump, 995 A.2d 1280, 1283

(Pa. Super. 2010). Further, this Court has held that “where the sentencing

judge had the benefit of a pre-sentence investigation report [(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.” Ventura, 975 A.2d at 1135 (citation omitted).

        This Court may only reverse the trial court if we find that the

circumstances of the case rendered the application of the guidelines “clearly

unreasonable.” 42 Pa.C.S. § 9781(c). Our review of the reasonableness is

based upon the factors contained in 42 Pa.C.S. § 9781(d),[4] and the trial

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4   Section 9781(d) provides:

        (d) Review of record.—In reviewing the record the appellate
        court shall have regard for:

           (1) The nature and circumstances of the offense and the history
           and characteristics of the defendant.

           (2) The opportunity of the sentencing court to observe the
           defendant, including any presentence investigation.

           (3) The findings upon which the sentence was based.

           (4) The guidelines promulgated by the commission.



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court’s consideration of the general sentencing standards contained in 42

Pa.C.S. § 9721(b). See Commonwealth v. Baker, 72 A.3d 652, 663 (Pa.

Super. 2013).

       Here, at sentencing, the trial court provided a lengthy statement

detailing the factors it considered in imposing Appellant’s sentence. See N.T.

Sentencing, 6/23/16, 24-31.             Specifically, the court indicated that it

considered the pre-sentence investigation report (PSI), a probation and parole

intervention evaluation report (PPI), and the evidence submitted at trial. See

id. at 26. The trial court acknowledged that Appellant was “an individual with

addictions [and] mental health issues” but determined Appellant was also “a

very violent individual,” requiring a punishment that would “protect society.”

Id. at 29.

       Additionally, the trial court’s Rule 1925(a) opinion referred to the above-

cited portion of the sentencing hearing, indicating the “lengthy list of

considerations that the court took into account in fashioning Appellant’s

sentence,” which included

       Appellant’s health, both physical and mental; the PSI report;
       Appellant’s statement to the PSI probation officer; the PPI
       evaluation report; Appellant’s statement by way of allocution; the
       victim impact statement; Appellant’s criminal history, especially
       the crimes of violence; the serious nature of the instant crime and
       Appellant’s demonstrated failure to accept responsibility for his
       actions; Appellant’s need for rehabilitation and his anger

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42 Pa.C.S. § 9781(d).


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     management issues; specific and general deterrence; [c]ounsel’s
     well-made arguments, and the sentencing guidelines.

Trial Ct. Op., 1/7/18, at 12-13; see also N.T. Sentencing, 6/23/16, at 24-31.

      Based on our review of the record, we find no support for Appellant’s

assertion that the trial court imposed an excessive sentence or failed to

consider Appellant’s mitigating factors.    See Rush, 162 A.3d at 544.

Moreover, we discern no basis to conclude that the trial court’s balancing of

the relevant sentencing factors was clearly unreasonable. See 42 Pa.C.S. §

9721(b); Ventura, 975 A.2d at 1135. Accordingly, we conclude the trial court

did not abuse its discretion in fashioning Appellant’s sentence. See Raven,

97 A.3d at 1253.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/15/19




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