J-S56042-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ERIC HALL,

                            Appellant                   No. 211 EDA 2017


            Appeal from the Judgment of Sentence October 20, 2016
             in the Court of Common Pleas of Montgomery County
               Criminal Division at No.: CP-46-CR-0003857-2013


BEFORE: BOWES, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED SEPTEMBER 26, 2017

        Appellant, Eric Hall, appeals from the judgment of sentence imposed

on October 20, 2016 after his open guilty plea to one count each of retail

theft and conspiracy to commit retail theft.1 We affirm.

        We take the following from our independent review of the certified

record and the trial court’s February 23, 2017 opinion. On September 24,

2013, Appellant entered an open guilty plea to the above charges.          The

charges related to a theft he committed on May 23, 2013. Specifically, on

that date, Appellant and another individual agreed to take merchandise from

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*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 3929(a)(1) and 903, respectively.
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a Gap store without paying for it, and then did so. (See N.T. Guilty Plea,

9/24/13, at 6).

       On February 21, 2014, Appellant appeared for sentencing, but left the

courtroom before the hearing.              More than two years later, he was

apprehended on a bench warrant.                  On October 20, 2016, the court

sentenced him to consecutive standard-range sentences of not less than

eighteen months nor more than seven years’ incarceration on each of the

two offenses to which he had pleaded guilty. The court denied Appellant’s

timely filed post-sentence motion challenging the discretionary aspects of

sentence on November 30, 2016. Appellant timely appealed.2

       Appellant raises one question for our review:

       I.    Whether the sentencing court’s imposition of an aggregate
       sentence of not less than three (3) nor more than fourteen (14)
       years’ incarceration was unreasonable and manifestly excessive
       in that the aggregate sentence exceeded the aggravated range
       of the sentencing guidelines and violated the fundamental norms
       of sentencing in that the sentencing court failed to properly
       consider the individual characteristics of Appellant, including
       Appellant’s limited intellectual ability, education level, and
       rehabilitative needs under 42 Pa.C.S.A. § 9721(b)?

(Appellant’s Brief, at 4) (unnecessary capitalization omitted).

       Appellant’s issue challenges the discretionary aspects of his sentence.

“[T]here is no absolute right to appeal when challenging the discretionary

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2
  Pursuant to the court’s order, Appellant filed a timely concise statement of
errors complained of on appeal on February 13, 2017. The court filed an
opinion on February 23, 2017. See Pa.R.A.P. 1925.



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aspect of a sentence.”        Commonwealth v. Dodge, 77 A.3d 1263, 1268

(Pa. Super. 2013), appeal denied, 91 A.3d 161 (Pa. 2014) (citations

omitted). “[A]n [a]ppeal is permitted only after this Court determines that

there is a substantial question that the sentence was not appropriate under

the sentencing code.” Id. (citation omitted).

             A defendant presents a substantial question when he sets
       forth a plausible argument that the sentence violates a provision
       of the sentencing code or is contrary to the fundamental norms
       of the sentencing process.     In order to properly present a
       discretionary sentencing claim, a defendant is required to
       preserve the issue in either a post-sentence motion or at
       sentencing and in a court-ordered Pa.R.A.P. 1925(b) concise
       statement. Further, on appeal, a defendant must provide a
       separate statement specifying where the sentence falls in the
       sentencing guidelines, what provision of the sentencing code has
       been violated, what fundamental norm the sentence violates,
       and the manner in which it violates the norm.

Id. at 1268-69 (quotation marks and citation omitted).

       In this case, Appellant has met all prerequisites for this Court’s merit

review of his issue.3 (See Appellant’s Post-Sentence Motion, 10/31/16, at

unnumbered page 2; Appellant’s Rule 1925(b) Statement, at unnumbered

page 1; Appellant’s Brief, at 10-11); Commonwealth v. Swope, 123 A.3d

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3
   We note that the Commonwealth argues that Appellant’s issue is waived
because he failed to raise any claim challenging his sentence on the basis of
its consecutive nature in his post-trial motion. (See Commonwealth’s Brief,
at 4).    However, Appellant’s argument is not about the imposition of
consecutive sentences, but that his sentence is excessive where the court
failed to consider mitigating factors, an issue he raised in his post-sentence
motion. (See Appellant’s Brief, at 14-15; Appellant’s Post-Sentence Motion,
at 2). Accordingly, we decline to find waiver.



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333, 339 (Pa. Super. 2015) (“[A]n excessive sentence claim—in conjunction

with an assertion that the court failed to consider mitigating factors—raises a

substantial question.”) (citation omitted).    Therefore, we will review the

merits of Appellant’s challenge. See Dodge, supra at 1268.

      Appellant maintains that “the trial court imposed a sentence that far

exceeded that which was necessary for the protection of the public[]” and

“failed to give adequate consideration to [his] need for rehabilitation . . . .”

(Appellant’s Brief, at 14). Appellant’s claim does not merit relief.

      Our standard of review of a sentencing challenge is well-settled:

              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. Glass, 50 A.3d 720, 727 (Pa. Super. 2012), appeal

denied, 63 A.3d 774 (Pa. 2013) (citation omitted). “Where [a] pre-sentence

report[] [(PSI)] exist[s], we shall . . . presume that the sentencing judge

was aware of relevant information regarding the defendant’s character and

weighed those considerations along with mitigating statutory factors.”

Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa. Super. 2014), appeal

denied, 95 A.3d 275 (Pa. 2014) (citation omitted).

      Here, the sentencing hearing notes of testimony reflect that the court

thoroughly considered all of the information before it.      For example, the

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court took into account: argument from counsel on Appellant’s behalf; the

sentencing guidelines; letters from Appellant’s mother and sister; his

extensive criminal history; his numerous probation violations; his failure to

appear for a probation and parole intervention (PPI) evaluation; his age and

background; and the fact that he absconded for two years to avoid being

sentenced, but failed to seek any help for his mental illness or drug addiction

during that time. (See N.T. Sentencing, 10/20/16, at 5-12). Based on all of

these considerations, the court found that:

      I think you are an undue risk that during the period of probation
      or partial confinement you are going to commit another crime.
      You’re in need of correctional treatment that can only be
      provided most effectively by commitment to an institution. A
      lesser sentence would depreciate the seriousness of your crime,
      and I, therefore, find that a sentence of total confinement is
      proper.

(Id. at 13).

      We discern no abuse of discretion in the court’s reasoning.         See

Glass, supra at 727.     Moreover, because it had the benefit of a PSI, we

presume that the court was aware of all relevant facts and weighed them

appropriately.   See Antidormi, supra at 761.          Hence, based on the

foregoing, Appellant’s challenge to the discretionary aspects of his sentence

does not merit relief.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/26/2017




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