J. S12034/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
TYRELL JAMESON,                             :
                                            :
                          Appellant         :     No. 2026 EDA 2014


                   Appeal from the PCRA Order June 30, 2014
              In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: CP-51-CR-0004504-2009

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

MEMORANDUM BY FITZGERALD, J.:                         FILED MARCH 05, 2015

        Appellant, Tyrell Jameson, appeals from the order entered in the

Philadelphia County Court of Common Pleas dismissing his first Post

Conviction Relief Act1 (“PCRA”) petition.       He contends trial counsel was

ineffective by not filing a post-sentence motion challenging the discretionary

aspects of his sentence. We affirm.

        We adopt the facts and procedural history set forth in the PCRA court’s

opinion.    See PCRA Ct. Op., 11/17/14, at 1-3.      Appellant timely appealed

and the court did not order a Pa.R.A.P. 1925(b) statement.          On appeal,

Appellant argues the PCRA court erred by not ordering an evidentiary

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
J. S12034/15


hearing to address his claim that trial counsel was ineffective by not

pursuing    post-sentence    relief.     Appellant   reasons   his    sentence   was

excessive. We hold Appellant is due no relief.

      “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v. Abu-

Jamal, 941 A.2d 1263, 1267 (Pa. 2008).

               When considering an allegation of ineffective assistance
           of counsel, counsel is presumed to have provided effective
           representation unless the PCRA petitioner pleads and
           proves that: (1) the underlying claim is of arguable merit;
           (2) counsel had no reasonable basis for his or her conduct;
           and (3) Appellant was prejudiced by counsel’s action or
           omission. To demonstrate prejudice, an appellant must
           prove that a reasonable probability of acquittal existed but
           for the action or omission of trial counsel. A claim of
           ineffective assistance of counsel will fail if the petitioner
           does not meet any of the three prongs. Further, a PCRA
           petitioner must exhibit a concerted effort to develop his
           ineffectiveness claim and may not rely on boilerplate
           allegations of ineffectiveness.

Commonwealth         v.   Perry,   959    A.2d   932,   936    (Pa.   Super.   2008)

(punctuation marks and citations omitted).

      When a defendant enters a guilty plea, he waives his “right to

challenge on appeal all non-jurisdictional defects except the legality of [his]

sentence and the validity of [his] plea.” Commonwealth v. Pantalion, 957

A.2d 1267, 1271 (Pa. Super. 2008). However, “where a plea agreement is

an open one as opposed to one for a negotiated sentence, unquestionably,

after sentencing the defendant can properly request reconsideration as the


                                         -2-
J. S12034/15


court alone decided the sentence and no bargain for a stated term, agreed

upon by the parties, is involved.” Commonwealth v. Coles, 530 A.2d 453,

457 (Pa. Super. 1987); accord Commonwealth v. Dalberto, 648 A.2d 16,

21 (Pa. Super. 1994) (“We believe that justice requires that we treat this

case as an ‘open’ plea and permit an appeal to the discretionary aspects of

sentencing.”).

        [T]he central focus of substantive appellate review with
        respect to a sentence outside of the guidelines is whether
        the sentence is “unreasonable”:

           (c) Determination on appeal.—The appellate court
           shall vacate the sentence and remand the case to
           the sentencing court with instructions if it finds:

                                 *    *    *

           (3) the sentencing court sentenced outside the
           sentencing guidelines and the sentence is
           unreasonable.

           In all other cases the appellate court shall affirm the
           sentence imposed by the sentencing court.

        42 Pa.C.S. § 9781(c)(emphasis supplied).

            In making this “unreasonableness” inquiry, the General
        Assembly has set forth four factors that an appellate court
        is to consider:

           (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-
J. S12034/15



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

           (4) The guidelines promulgated by the commission.

        42 Pa.C.S. § 9781(d).

           Thus, under the Sentencing Code an appellate court is
        to exercise its judgment in reviewing a sentence outside
        the sentencing guidelines to assess whether the sentencing
        court imposed a sentence that is “unreasonable.” 42
        Pa.C.S. § 9781(c).

                                *    *    *

        That is, while a sentence may be found to be unreasonable
        after review of Section 9781(d)’s four statutory factors, in
        addition a sentence may also be unreasonable if the
        appellate court finds that the sentence was imposed
        without express or implicit consideration by the sentencing
        court of the general standards applicable to sentencing
        found in Section 9721, i.e., the protection of the public;
        the gravity of the offense in relation to the impact on the
        victim and the community; and the rehabilitative needs of
        the defendant. 42 Pa.C.S. § 9721(b). Moreover, even
        though the unreasonableness inquiry lacks precise
        boundaries, we are confident that rejection of a sentencing
        court’s imposition of sentence on unreasonableness
        grounds would occur infrequently, whether the sentence is
        above or below the guideline ranges, especially when the
        unreasonableness inquiry is conducted using the proper
        standard of review.

Commonwealth v. Walls, 926 A.2d 957, 963-64 (Pa. 2007). “Where the

sentencing judge had the benefit of the information in the pre-sentence

report, it will be presumed that he was aware of relevant information

regarding appellant’s character and weighed those considerations along with

the mitigating statutory factors.” Commonwealth v. Fullin, 892 A.2d 843,

849-50 (Pa. Super. 2006) (citation omitted).


                                    -4-
J. S12034/15


      After careful consideration of the parties’ arguments, the record, and

the decision by the Honorable Sandy L.V. Byrd, we affirm on the basis of the

PCRA court’s decision.    See PCRA Ct. Op. at 9-13 (discussing sentencing

factors and presentence investigation report justified imposition of sentence,

and noting Appellant failed to establish counsel disregarded request to file

post-sentence motion or direct appeal); see also Walls, 926 A.2d at 963-

64; Fullin, 892 A.2d at 849-50.        Because the underlying issue lacks

arguable merit, Appellant cannot establish trial counsel was ineffective for

not filing a post-sentence motion challenging the reasonableness of his

sentence, and thus we affirm the order below. See Perry, 959 A.2d at 936.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/5/2015




                                    -5-
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                IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                               CRIMINAL TRIAL DIVISION


  COMMONWEALTH OF PENNSYLVANIA                                    CP-SI-CR-0004S04-2009



                                   F~l-=ED
                     v.                                           SUPERIOR COURT


 TYRELL JAMESON
                                     NOV 1 7 2014                 2026 EDA 2014
                                Crimtflai A\~als Unit
                              First Judicial District of PA
                                                 OPINION

 Byrd, J.                                                                                    November 17, 2014



           On April 18, 2011, petitioner Tyrell Jameson entered a non-negotiated guilty plea to

 aggravated assault and carrying a firearm without a license in violation of Section 6106 of the

 Uniform Firearms Act. He was sentenced to an aggregate imprisonment term of seven and one-

 half (7   ~)   to fifteen (1S) years, followed by five (S) years probation on July 11, 2011. Jameson

did not appeal the judgment of sentence.

           On April 12, 2012, Jameson filed a pro se petition under the Post Conviction Relief Act·

(PCRA). Jameson obtained appointed counsel and an amended PCRA petition was filed on

October 11, 2013. The Commonwealth filed its motion to dismiss on February 12, 2004. After

reviewing the pleadings and determining that the petition was meritless, this court issued a notice

of intent to dismiss pursuant to Pennsylvania Rule of Criminal Procedure 907 on May 30, 2014.

On July 10, 2014, the petition was formally dismissed. Jameson filed a notice of appeal on
                                                              CP-51-CR-0004504-2009 Comm. v. Jameson, Tyrell
July 16,2014.                                                                    Opinion




                                                                  111/111111111111111111111
                                                                           7223404121


Commw. v. Tyrell Jameson                     Page 1 of13
                                                                                Circulated 02/06/2015 02:40 PM




                                     STATEMENT OF FACTS

          Jameson pled guilty to the above-mentioned charges based on the following facts. See

   N.T. 04/18111, pp. 27-31. On March 14, 2009, the complainant, William Smalls, went to a

   Chinese store near the 4900 block of North 18th Street in the Logan section of Philadelphia.

   While Mr. Smalls was inside the store, he was confronted by Jameson's brothers, Eric, also

   nicknamed "E-Rock," and Marquis.       This verbal confrontation turned into a physical fight

  between Mr. Smalls and Jameson's brothers. During the fight, Eric yelled for Jameson, who was

  also known as "Tab-Tab." When Jameson came out to the street, he asked Mr. Smalls "Who's

  messing with my brother?" and pulled out a handgun from his rear waistband.

         Jameson then pointed the handgun at Mr. Smalls's face, from a distance of four (4) to

  five (5) feet, and pulled the trigger. A bullet grazed Mr. Smalls's cheek. Mr. Smalls stepped

  backwards after being shot, but Jameson proceeded to pull the trigger at least three other times.

  Mr. Smalls was shot in the forearm, in the upper right chest area, and in the left groin area. He

  fled down the street, but ultimately collapsed on the steps of a neighbor's house on the 4900

 block of North 18th Street. When the neighbor came outside, Mr. Smalls stated that "Tab-Tab"

 shot him. Police officers responded to the scene and transported Mr. Smalls to Albert Einstein

 Medical Center.

        En route to the hospital, police officers asked Mr. Smalls if he could identify his shooter,

 and the victim again identified defendant, "Tab-Tab." At about 8:50 p.m., Mr. Smalls was

 admitted to the hospital, where he was intubated and underwent surgery to his kidney, liver, and

 groin. He also underwent an exploratory laparotomy to search for bullets. No bullets were

. recovered. Mr. Smalls was released from the hospital on March 24,2009.




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          While hospitalized, Mr. Smalls provided a statement to detectives, on March 21,2009, in

  which he identified Jameson as the shooter. Mr. Smalls further informed police that he had

  known Jameson from the neighborhood for several years. During this interview, Mr. Smalls was

  shown a photographic array. After being shown this photographic array, Mr. Smalls circled a

 photograph depicting Jameson and identified him as the shooter. Jameson was arrested on the

 following day. On March 30, 2009, Mr. Smalls testified at Jameson's preliminary hearing. Mr.

 Smalls was later threatened by Eric, who stated that he would "remember this" and that he would

 "fucking kill him."

                                              DISCUSSION

        The Post Conviction Relief Act ("PCRA") affords collateral relief to those individuals

 convicted of crimes they did not commit and to those individuals serving illegal sentences. See

 42 Pa. C.S. §9542. Claims pursuant to the PCRA are extraordinary assertions that the judicial

 system failed; they are not merely direct appeal claims that are made at a later stage of the

judicial proceedings. See Commonwealth v. Rivers, 567 Pa. 239, 786 A.2d 923 (2001). A

petitioner is entitled to file all PCRA petitions, including second and subsequent petitions within

one (1) year from the date his judgment of sentence becomes final. See 42 Pa. C.S. §9545(b)(1);

42 Pa. C.S. §9545(b)(3). A petitioner is eligible for relief under the PCRA if he proves by a

preponderance of the evidence that his conviction or sentence resulted from one or more of the

enumerated circumstances found at 42 Pa. C.S. §9543(a)(2). See Commonwealth v. Ligons, 601

Pa. 103,971 A.2d 1125 (2009).

       A petitioner may be entitled to relief under the PCRA if he is able to plead and prove that

a conviction or sentence resulted from ineffective assistance of counsel which, in the

circumstances of the particular case, so undermined the truth-determining process that no reliable



Commw. v. Tyrell Jameson                Page 3 of 13
                                                                               Circulated 02/06/2015 02:40 PM




  adjudication of guilt or innocence could have taken place. See 42 Pa. C.S. §9543(a)(2)(ii). It is

  the ineffectiveness claim, not the underlying error at trial, which is reviewed.              See

  Commonwealth v. Clayton, 572 Pa. 395, 816 A.2d 217 (2002). Under the PCRA, an allegation

  of ineffective assistance of counsel amounts to constitutional malpractice where counsel's

  incompetence deprived a defendant of his Sixth Amendment right to counsel. See Strickland v.

  Washington, 466 U.S. 668 (1984); Commonwealth v. Williams, 566 Pa. 553, 782 A.2d 517

 (2001).

           The law requires the presumption that counsel was effective, unless the petitioner can

 fulfill his burden and prove otherwise. See Commonwealth v. Payne, 794 A.2d 902 (Pa. Super.

 2002). To prevail on an ineffective assistance of counsel claim, petitioner bears the burden of

 demonstrating: "(1) the underlying claim is of arguable merit; (2) that counsel had no reasonable

 strategic basis for his or her action or inaction; and (3) but for the errors and omissions of

 counsel, there is a reasonable probability that the outcome of the proceedings would have been

 different."   Commonwealth v. Kersteter, 877 A.2d 466, 468 (Pa. Super. 2005) (quoting

 Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005)). Furthermore, counsel's

choices cannot be evaluated in hindsight, but rather should be examined in light of the

circumstances at that time.     See Commonwealth v. Hardcastle, 549 Pa. 450, 701 A.2d 541

(1997). Even if there was no reasonable basis for counsel's course of conduct, a petitioner is not

entitled to relief if he fails to demonstrate prejudice. See Commonwealth v. Douglas, 537 Pa.

588,645 A.2d 226 (1994).

        Moreover, if the petitioner "has not demonstrated that counsel's act or omISSIOn

adversely affected the outcome of the proceedings, the claim may be dismissed on that basis

alone and the court need not first determine whether the first and second prongs have been met."



Commw. v. Tyrell Jameson                 Page 4 of 13
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  Commonwealth v. Albrecht, 554 Pa. 31,46, 720 A.2d 693, 701 (1998). To escape dismissal on

  this basis, " 'the defendant must show that the deficient performance prejudiced the defense [by

  showing] that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial

  whose result is reliable.'" Commonwealth v. Chazin, 873 A.2d 732, 736 (Pa. Super.. 2005)

  (quoting Commonwealth v. Pierce, 515 Pa. 153, 158,527 A.2d 973,975 (1987)).

         Jameson claims that counsel was ineffective for failing to file a post-sentence motion and

 a direct appeal to challenge the judgment of sentence that was imposed after he entered his non-

 negotiated guilty plea. In Commonwealth v. Allen, 557 Pa. 135, 144, 732 A.2d 582,587 (1999),

 the court held that "[a]llegations of ineffectiveness in connection with the entry of a guilty plea

 will serve as a basis for relief only if the ineffectiveness caused appellant to enter an involuntary -

 or unknowing plea."     When examining whether a guilty plea has been entered voluntarily,

 knowingly, and intelligently, this court may consider the totality of the circumstances

 surrounding the plea. See id In determining the validity of a guilty plea, this court must inquire

 into six different areas: (1) whether the defendant understands the nature of the charges filed

 against him; (2) whether there is a factual basis for the defendant's guilty plea; (3) whether the

defendant understands his right to a jury trial; (4) whether the defendant understands that he is

presumed to be innocent until proven guilty; (5) whether the defendant is aware of the

permissible range of sentences and/or fines for the offenses he has been charged; and (6) whether

the defendant is aware that the judge is not bound by the terms of any plea agreement unless the

judge accepts such agreement. See Commonwealth v. Chumley, 482 Pa. 626, 634, 394 A.2d 497,

501 n.2 (1978); Pa. R. Crim. P. 590.

       In this case, Jameson's guilty plea was entered voluntarily, knowingly, and intelligently.

Before accepting Jameson's guilty plea, this court conducted an extensive oral colloquy to ensure



Commw. v. Tyrell Jameson                 Page 5 of 13
                                                                                              Circulated 02/06/2015 02:40 PM




     that Jameson had "actual knowledge of the implications and rights associated with a guilty plea."

     Allen, 557 Pa. at 146, 732 A.2d at 588. The record clearly demonstrates that Jameson entered a

     valid guilty plea. l Jameson confirmed that he understood the nature of the charges filed against

     him after this court carefully explained the elements of aggravated assault and carrying a firearm

     without a license in violation of Section 6106 of the Uniform Firearms Act. See N. T. 04118/11,

     pp. 25-27. The record also shows that there was a factual basis for his guilty plea. After this

    court informed Jameson of the elements of the aforementioned crimes, the assistant district

    attorney provided a summary of the facts that were the basis for his guilty plea. Jameson agreed

    that he was pleading guilty to those facts because he was, in fact, guilty. See N.T. 04118/11, pp.

    27-31.

             During this colloquy, Jameson was informed of his rights and the consequences of

    entering a guilty plea to the charges against him. In response to a series of inquiries, Jameson

    responded that he understood those rights and the consequences of giving them up by pleading

    guilty. See N.T. 04118111, pp. 4-33. Specifically, Jameson confirmed that he understood he had

    a right to a jury trial and that there are consequences of electing to plead guilty. See N.T.

    04/18111, pp. 4-17. He also understood that he would be presumed innocent until proven guilty

    beyond a reasonable doubt. See N.T. 04/18111, pp. 7, 11-12. Jameson further indicated his

awareness of the permissible range of sentences and fines for the charges filed against him. See

N.T. 04118/11, pp. 19-22. Before Jameson entered his guilty plea, this court informed him that a

mandatory minimum sentence applied to his case and that his sentence could end up being the

statutory maximum term of thirteen and one-half (13                    ~)   to twenty-seven (27) years in prison.

See N. T. 04118/11, pp. 19-22. He was also informed that the entry of an open plea subjected him



1   A copy of this court's April 18, 2011 colloquy of petitioner is attached.

Commw. v. Tyrell Jameson                            Page 6 of 13
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  to a sentence that would be fashioned by this court instead of a sentence resulting from

  negotiations with the Commonwealth. See N.T. 04/18111, pp. 20, 34.

          Jameson completed and signed a Written Guilty Plea Colloquy fonn and indicated that he

  understood each page of the fonn. See N.T. 04118111, pp. 32-33. He also stated that he had

  consulted with defense counsel before entering his guilty plea, that he was satisfied with his

 attorney's services, and that no threats or promises had been made to him. See N.T. 04118/11,

 pp. 22-23. There was no point during the colloquy where Jameson informed this court that his

 guilty plea was unlawfully induced by counsel. See N.T. 04118111, pp. 4-33.

          Furthennore,      Jameson cannot overcome the presumption that trial counsel's

 representation was effective and within the range of competence of defense attorneys.                        See

 Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002) (quoting Hill v. Lockhart, 474

 U.S. 52, 56 (1985», which noted that "the voluntariness of the plea depends on whether

 counsel's advice 'was within the range of competence demanded of attorneys in criminal

 cases' "). Before this court accepted Jameson's guilty plea, Jameson told the court that he was

satisfied with his attorney's services? See N.T. 04118111, pp. 22-23. Jameson has not presented

any evidence of counsel's unreasonableness or of counsel's advice being outside the range of

competence in criminal law. See Commonwealth v. Lee, 585 A.2d 1084, 1089 (Pa. Super. 1991)

(repeating principle from Strickland, 466 U.S. at 690-691, that "[S]trategic choices made after

thorough investigation of law and facts relevant to plausible options are virtually

unchallengeable; and strategic choices made after less than complete investigation are reasonable

2 Petitioner also indicated on page 3 of his Written Guilty Plea Colloquy Form that he was satisfied with counsel,
indicating the following:
                 SATISFIED WITH MY LAWYER
                 I am satisfied with the advice and service I received from my lawyer. My
                 lawyer spent enough time on my case and I had enough time to talk with my
                 lawyer about the case. My lawyer left the final decision to me and I decided
                 myself to plead guilty.

Commw. v. Tyrell Jameson                       Page 7 of 13
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  precisely to the extent that reasonable professional judgments support the limitations on

  investigation"). Based on the totality of the circumstances, this court accepted Jameson's guilty

  plea after being satisfied that it was entered voluntarily, knowingly, and intelligently.

         Jameson now asserts that counsel was ineffective for failing to file a post-sentence

 motion and a direct appeal to challenge his judgment of sentence.              In Commonwealth v.

 Braykovich, 664 A.2d 133 (Pa. Super. 1995), the court held that "the allowance of an appeal

 nunc pro tunc will be pennitted only in extraordinary circumstances, namely fraud or some

 breakdown in the processes of the court." Id. at 136 (quoting Moring v. Dunne, 493 A.2d 89, 91

 (Pa. Super. 1985)) (emphasis omitted). Certainly, "an unjustified failure of counsel to perfect an

 appeal guaranteed as of right constitutes prejudice per se." Commonwealth v. Jordan, 772 A.2d

 1011, 1016 (pa. Super. 2001) (emphasis omitted). In Commonwealth v. Mosteller, 633 A.2d 615

 (Pa. Super. 1993), the court reiterated that" '[w]hen a defendant establishes that counsel's

 ineffective assistance denied him entirely his right to a direct appeal, he is entitled to a direct

 appeal nunc pro tunc without regard to his ability to establish the merit of the issues which he

seeks to raise on direct appeaL'" Id. at 618 (quoting Commonwealth v. Ciotto, 555 A.2d 930,

931 (Pa. Super. 1989)) (emphasis omitted). However, "[b]efore a court will find ineffectiveness

of counsel for failing to file a direct appeal, the defendant must prove that he requested an appeal

and that counsel disregarded that request." Commonwealth v. Knighten, 742 A.2d 679, 682 CPa.

Super. 1999). Furthennore, "a knowing and understanding failure to take a direct appeal from

the judgment of sentence will result in the waiver of all issues which could have been raised

thereon, absent extraordinary circumstances." Commonwealth v. Smith, 428 A.2d 607, 607 CPa.

Super. 1981).




Commw. v. Tyrell Jameson                  Page 8 of 13
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          Here, Jameson failed to establish that he requested the filing of post-sentence motions

  and a direct appeal, and that counsel disregarded his alleged requests. As the court held in

  Commonwealth v. Velasquez, 563 A.2d 1273 (Pa. Super. 1989), "[c]laims of ineffectiveness are

  not sufficient when presented in a vacuum ... ; nor can counsel be deemed ineffective for failing

 to do what he was not requested to do." Jd at 1275 (citation omitted). Consequently, trial

 counsel cannot be deemed ineffective because Jameson has not brought forth any evidence

 proving that he requested the filing of a post-sentence motion and a direct appeal.

         Finally, Jameson is not entitled to post-conviction relief because he was not prejudiced by

 trial counsel's failure to file a post-sentence motion and a direct appeal that challenged the

 alleged disparity of his sentence. Jameson cannot succeed on this claim because trial counsel

 cannot be deemed ineffective for failing to raise a meritless issue.        See Commonwealth v.

 Wilkerson, 490 Pa. 296, 299, 416 A.2d 477, 479 (1980) (ruling that counsel will be considered

 ineffective for failing to raise an issue in a post-verdict motion or on appeal "only if the issue is

 of arguable merit"); Commonwealth v. Walley, 396 A.2d 1280, 1283 n.6 (holding that

"[c]ounsel's stewardship cannot be deemed ineffective for failure to file futile motions")

Jameson is not entitled to a different sentence than the one imposed because it was not illegal or

unreasonable.

        Sentencing is a matter vested within the sound discretion of the sentencing jUdge. See

Commonwealth v. McNabb, 819 A.2d 54 (Pa. Super. 2003).                  An abuse of discretion is

"'synonymous with a failure to exercise a sound, reasonable, and legal discretion.'"

Commonwealth v. Myers, 554 Pa. 569, 574, 722 A.2d 649, 651 (1998) (quoting Commonwealth

v. Powell, 527 Pa. 288,297,590 A.2d 1240, 1244 n.8 (1991)). In Commonwealth v. Miller, 835

A.2d 377,380 (Pa. Super. 2003), the court explained that a Jameson has established a substantial



Commw. v. Tyrell Jameson                  Page 9 of 13
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  question upon showing "that the sentencing court's actions either were inconsistent with a

  specific provision of the Sentencing Code or contrary to the fundamental norms which underlie

  the sentencing process." As the court stated in Commonwealth v. Martin, 611 A.2d 731, 737 (Pa.

  Super. 1992), "a claim of excessiveness ... does not constitute a substantial question when the

  sentence in question is within the statutory lil?its."

           Here, Jameson cannot establish that this court violated the Sentencing Code or the

 fundamental principles that govern sentencing because the sentence for each conviction is within

 statutory limits. Jameson pled guilty to aggravated assault and carrying a firearm without a

 license in violation of Section 6106 of the Uniform Firearms Act. Jameson's aggravated assault

 conviction was a first-degree felony, which carries a maximum confinement term of twenty (20)

 years. See 18 Pa. C.S. §2702(a)(I), (b); 18 Pa. C.S. §1103(l).        This court could not have

 sentenced Jameson to less than the mandatory minimum of five (5) years because he used a gun

 while committing aggravated assault, thereby causing serious bodily injury. See 42 Pa. C.S.

 §9712(a); Commonwealth v. Bess, 789 A.2d 757, 761 (Pa. Super. 2002) (holding that "[w]here a

minimum sentence is statutorily mandated, a sentencing court lacks the authority to impose a

sentence less severe than dictated by the legislature"). See also Commonwealth v. Catanch,581

A.2d 226, 229 (Pa. Super. 1990) (holding that a trial court was "free to impose a more lengthy

term of imprisonment [than the mandatory minimum sentence] upon consideration of the

individual circumstances of the case before it").

         An individual convicted of carrying a firearm without a license, in violation of Section

6106(a) of the Uniform Firearms Act, is guilty of committing a third-degree felony, and could be

sentenced to a maximum imprisonment term of seven (7) years. See 18 Pa. C.S. §6106(a); 18 Pa.

C. S. § 11 03 (3).   Thus, it would have been within this court's statutory authority to sentence



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   Jameson to a maximum period of confinement of twenty-seven (27) years. See Commonwealth

   v. Booze, 953 A.2d 1263 (Pa. Super. 2008) (noting that 42 Pa. C.S. §9721 gives sentencing court

   discretion to impose consecutive or concurrent sentences). Instead, Jameson was sentenced to an

  aggregate imprisonment term of seven and one-half (7 'li) to fifteen (15) years followed by five

  (5) years probation. 3

           Although this sentence was outside recommended sentencing guidelines, it was not an

  unreasonable sentence. In Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008), the

  court noted that "[w]hen reviewing a sentence outside of the guideline range, the essential

  question is whether the sentence imposed was reasonable." In determining the reasonableness of

  a sentence, the court analyzes: (1) the nature and circumstances of the offense and the history

 and characteristics of the defendant; (2) the sentencing court's opportunity to observe the

 defendant, including any presentence investigation; (3) the findings upon which the sentence was

 based; and (4) the guidelines promulgated by the commission. Id (citing 42 Pa. C.S. §9781 (d)).

          Here, this court imposed a reasonable and legally permissible sentence.                            Before

 fashioning Jameson's sentence, this court considered the sentencing guidelines for each

 conviction and determined that they were inappropriate for this particular case.                                See

 Commonwealth v. Yuhasz, 592 Pa. 120, 132, 923 A.2d 1111, 1118 (2007) (describing the

sentencing guidelines as "purely advisory in nature"); Commonwealth v. Begley, 566 Pa. 239,

302, 780 A.2d 605, 643 (2001) (holding that "[a]lthough the trial court must consider the

Sentencing Guidelines, the court is not obligated to impose a sentence deemed appropriate under

the Sentencing Guidelines"). In Yuhasz, the court held that "despite the recommendations of the


3 It should also be noted that petitioner could have been convicted of attempted murder had he not entered his guilty
plea. An individual convicted of attempted murder, where there is serious bodily injury, may be sentenced to a
maximum sentence of forty (40) years. See 18 Pa. C.S. § l102(c). Thus, petitioner essentially benefited from the
entry of his guilty plea and the sentence imposed because he could have been subjected to a more substantial
sentence if the Commonwealth did not agree to nolle prossed his attempted murder charge.

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  Sentencing Guidelines, 'the trial courts retain broad discretion in sentencing matters, and

  therefore, may sentence defendants outside the Guidelines.' The only line that a sentence may

  not cross is the statutory maximum sentence." Id, 592 Pa. at 132-133, 923 A.2d at 1118-1119

  (quoting Commonwealth v. Mouzon, 571 Pa. 419, 425, 812 A.2d 617, 621 (2002». Here, this

 court conducted a meaningful review of the sentencing guidelines, the statutory maximum

 sentence for each conviction, the facts of this case, and Jameson's individual circumstances. See

 Commonwealth v. Tuladziecki, 513 Pa. 508, 515, 522 A.2d 17,20 (1987) (commenting how "[i]t

 is apparent that the legislature has vested broad discretion in the trial court to impose a sentence

 appropriate to each case which comes before it").

        Before the sentencing hearing, this court. reviewed both the pre-sentence investigation

 report and the mental health evaluation of Jameson. See N.T. 07111111, p. 17. At the sentencing

 hearing, this court heard from both sides before imposing sentence. See N.T. 07/11111, pp. 3-17.

 In determining Jameson's sentence, this court considered all relevant factors, including the

manner in which Jameson committed these crimes, the impact that Jameson's crimes had upon

the victim, the protection of society, the sentencing guidelines, as well as his age, mental

aptitude, educational attainment, parental status, employment history, lack of a prior criminal

record, and rehabilitative needs. In Commonwealth v. Eicher, 605 A.2d 337, 354 (Pa. Super.

1992), the court pointed out that the appellate court "must accord the sentencing court great

weight as it is in the best position to view the defendant's character, displays of remorse,

defiance or indifference, and the overall effect and nature of the crime." Id at 354 (quoting

Commonwealth v. Clever, 576 A.2d 1108, 1110 (Pa. Super. 1990». Undeniably, this court

assessed Jameson's individual situation and all of the circumstances surrounding the crimes he

committed before imposing sentence.         Furthermore, there were no impermissible factors



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  entertained by this court.   Therefore, Jameson's underlying claim regarding the legality and

  reasonableness of his sentence has no merit.

         Accordingly, for the foregoing reasons, the dismissal of Jameson's PCRA petition should

  be AFFIRMED.

                                                                  BY THE COURT,




                                                                 ~~~.
                                                                  Sandy L.V. Byrd,     1.




Commw. v. Tyrell Jameson                Page 13 of 13
