J-S37010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

BETHANY HINKLEY

                            Appellant                     No. 768 WDA 2015


            Appeal from the Judgment of Sentence March 18, 2015
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0002385-2014


BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.

MEMORANDUM BY GANTMAN, P.J.:                              FILED APRIL 28, 2016

        Appellant, Bethany Hinkley, appeals from the judgment of sentence

entered in the Allegheny County Court of Common Pleas, following her guilty

plea to aggravated assault, recklessly endangering another person (“REAP”),

harassment, and public drunkenness/similar misconduct.1 We affirm.

        The relevant facts and procedural history of this case are as follows.

On January 12, 2015, Appellant entered a guilty plea2 (open as to

sentencing)     to   aggravated       assault,   REAP,   harassment,   and   public

drunkenness/similar misconduct, stemming from an incident that occurred

____________________________________________


1
    18 Pa.C.S.A. §§ 2702(a)(4); 2705; 2709(a)(1); 5505, respectively.
2
  On the same day, Appellant also pled guilty to defiant trespass and other
offenses in an unrelated case.
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on February 7, 2014, where Appellant threw a glass bottle at Victim during

an argument, blinding Victim in one eye. Appellant admitted she was drunk

at the time of the incident.          Victim testified at the guilty plea hearing

regarding the impact Appellant’s actions had on his life. On March 18, 2015,

with the benefit of a pre-sentence investigation (“PSI”) report, the court

sentenced     Appellant     to    eighteen     (18)   to   thirty-six   (36)   months’

imprisonment and five (5) years’ concurrent probation for aggravated

assault; the court imposed no further penalty for the remaining convictions.3

Victim testified again at the sentencing hearing regarding the impact of

Appellant’s actions.

       On April 16, 2015, Appellant filed a petition to file a post-sentence

motion nunc pro tunc, as well as a post-sentence motion nunc pro tunc. The

court granted Appellant’s request to file a post-sentence motion nunc pro

tunc, and denied relief on April 17, 2015. Appellant timely filed a notice of

appeal on May 15, 2015. On May 18, 2015, the court ordered Appellant to

file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b).        Following two extensions, Appellant timely filed her

concise statement on October 30, 2015.

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3
  At sentencing in the present case, the court also accepted Appellant’s
negotiated guilty plea to aggravated assault in a third and unrelated case,
and sentenced Appellant to three (3) years’ probation for the aggravated
assault offense. The court imposed no further penalty for Appellant’s defiant
trespass and related convictions.



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      Appellant raises one issue for our review:

         DID THE TRIAL COURT FAIL TO ADEQUATELY CONSIDER
         AND APPLY ALL OF THE RELEVANT SENTENCING
         CRITERIA, INCLUDING THE PROTECTION OF THE PUBLIC,
         THE GRAVITY OF THE OFFENSE, AND [APPELLANT’S]
         REHABILITATIVE NEEDS, AS REQUIRED UNDER 42
         PA.C.S.A. § 9721(B) (SENTENCING GENERALLY)?

(Appellant’s Brief at 5).

      Appellant argues the court ignored her rehabilitative needs, character,

and other mitigating evidence in imposing a state sentence of eighteen to

thirty-six months’ incarceration.    Appellant avers the court discounted

mitigating factors such as her expression of remorse, the fact that she took

responsibility for her crimes, her military service, plus her substance abuse

and mental health issues.    Appellant contends the record shows she was

amenable to rehabilitation, given her prior service in the armed forces,

interest in furthering her education through the GI bill, and prior

employment at grocery stores and restaurants. Appellant claims the court

focused too much on the seriousness of her offenses when it imposed a state

sentence because Appellant did not intend to blind Victim when she threw a

bottle at him. Appellant emphasizes she was intoxicated at the time of her

actions, and suffers from addiction, bipolar disorder, and anxiety, so a

county sentence with a provision to serve some time in alternative housing

would have better met her rehabilitative needs.     Appellant complains the

court also improperly considered her aggravated assault conviction in an

unrelated case to justify the excessive sentence in this case.     Appellant

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concludes the court abused its sentencing discretion, and this Court must

remand for resentencing.    As presented, Appellant’s claims implicate the

discretionary aspects of sentencing.       See, e.g., Commonwealth v.

Cartrette, 83 A.3d 1031 (Pa.Super. 2013) (en banc) (explaining claim

sentencing court failed to consider Section 9721(b) factors pertains to

discretionary sentencing matters); Commonwealth v. Clarke, 70 A.3d

1281 (Pa.Super. 2013), appeal denied, 624 Pa. 671, 85 A.3d 481 (2014)

(stating contention court focused solely on serious nature of crime without

adequately considering protection of public and defendant’s rehabilitative

needs concerns court’s sentencing discretion); Commonwealth v. McAfee,

849 A.2d 270 (Pa.Super. 2004), appeal denied, 580 Pa. 695, 860 A.2d 122

(2004) (explaining claim court considered improper factor upon sentencing

challenges discretionary aspects of sentencing); Commonwealth v. Cruz-

Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676

A.2d 1195 (1996) (stating allegation court overemphasized seriousness of

crime without considering mitigating factors challenges discretionary aspects

of sentencing).

     A challenge to the discretionary aspects of sentencing is not

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

768 A.2d 1136 (Pa.Super. 2001), appeal denied, 568 Pa. 695, 796 A.2d 979

(2001). Prior to reaching the merits of a discretionary sentencing issue:

        We conduct a four-part analysis to determine: (1) whether
        appellant has filed a timely notice of appeal, see Pa.R.A.P.

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         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 a fatal defect, 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, 42 Pa.C.S.A. § 9781(b).

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

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

Objections to the discretionary aspects of a sentence are waived if they are

not raised at the sentencing hearing or in a timely filed post-sentence

motion. Commonwealth v. Griffin, 65 A.3d 932 (Pa.Super. 2013), appeal

denied, 621 Pa. 682, 76 A.3d 538 (2013). “This failure cannot be cured by

submitting the challenge in a Rule 1925(b) statement.” McAfee, supra at

275.

       What constitutes a substantial question must be evaluated on a case-

by-case basis. Commonwealth v. Paul, 925 A.2d 825 (Pa.Super. 2007).

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 v. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000) (internal

citation omitted).   In other words, an appellant’s Rule 2119(f) statement

must sufficiently articulate the manner in which the sentence violates either

a specific provision of the sentencing scheme set forth in the Sentencing


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Code or a particular fundamental norm underlying the sentencing process.

Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002).

     On appeal, this Court will not disturb the judgment of the sentencing

court absent an abuse of discretion. Commonwealth v. Fullin, 892 A.2d

843 (Pa.Super. 2006).

        [A]n abuse of discretion is more than a mere error of
        judgment; thus, a sentencing court will not have abused
        its discretion unless the record discloses that the judgment
        exercised was manifestly unreasonable, or the result of
        partiality, prejudice, bias or ill-will. In more expansive
        terms, …: An abuse of discretion may not be found merely
        because an appellate court might have reached a different
        conclusion,     but   requires    a    result   of   manifest
        unreasonableness, or partiality, prejudice, bias, or ill-will,
        or such lack of support so as to be clearly erroneous.

        The rationale behind such broad discretion and the
        concomitantly deferential standard of appellate review is
        that the sentencing court is in the best position to
        determine the proper penalty for a particular offense based
        upon an evaluation of the individual circumstances before
        it. Simply stated, the sentencing court sentences flesh-
        and-blood defendants and the nuances of sentencing
        decisions are difficult to gauge from the cold transcript
        used upon appellate review. Moreover, the sentencing
        court enjoys an institutional advantage to appellate review,
        bringing to its decisions an expertise, experience, and
        judgment that should not be lightly disturbed. Even with
        the advent of the sentencing guidelines, the power of
        sentencing is a function to be performed by the sentencing
        court. Thus, rather than cabin the exercise of a sentencing
        court’s discretion, the guidelines merely inform the
        sentencing decision.

Commonwealth v. Walls, 592 Pa. 557, 564-65, 926 A.2d 957, 961-62

(2007) (internal quotation marks, footnotes, and citations omitted).

     Pursuant to Section 9721(b), “the court shall follow the general

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principle that the sentence imposed should call for confinement that is

consistent with the protection of the public, the gravity of the offense as it

relates to the impact on the life of the victim and on the community, and the

rehabilitative needs of the defendant.”     42 Pa.C.S.A. § 9721(b).    “[T]he

court shall make as part of the record, and disclose in open court at the time

of sentencing, a statement of the reason or reasons for the sentence

imposed.”      Id.   Nevertheless, “[a] sentencing court need not undertake a

lengthy discourse for its reasons for imposing a sentence or specifically

reference the statute in question….” Commonwealth v. Crump, 995 A.2d

1280, 1283 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475

(2010). Rather, the record as a whole must reflect the sentencing court’s

consideration of the facts of the case and the defendant’s character.     Id.

See also Commonwealth v. Fowler, 893 A.2d 758 (Pa.Super. 2006)

(explaining where sentencing court had benefit of PSI report, we can

presume it was aware of relevant information regarding defendant’s

character and weighed those considerations along with mitigating factors);

Cruz-Centeno, supra at 546 (stating: “Having been fully informed by the

pre-sentence report, the sentencing court’s discretion should not be

disturbed”).

      Instantly, Appellant raised the following issues in her post-sentence

motion nunc pro tunc:

         [Appellant] respectfully maintains that this Honorable
         [c]ourt committed an abuse of sentencing discretion, and

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        respectfully requests a modification for the following
        reasons:

           a)    [Appellant] took responsibility for her actions
           by pleading guilty;

           b)    [Appellant] is a high school graduate and a
           U.S. Airforce veteran, having worked as a combat
           radio operator;

           c)    [Appellant] has a work history in the hotel and
           restaurant industry; and,

           d)    [Appellant] is willing to participate in
           treatment, as evidenced by her participation in
           several programs at the Allegheny County Jail since
           her incarceration, including the 5MC pod, Moving On,
           and Trauma and Addiction.

(Appellant’s Post-Sentence Motion Nunc Pro Tunc, filed April 16, 2015, at 3

¶5). Significantly, Appellant failed to preserve in her post-sentence motion

nunc pro tunc her complaints on appeal that the court failed to consider the

Section 9721(b) sentencing factors, focused too much on the seriousness of

her offenses, ignored her addiction and mental health issues and expression

of remorse, and improperly considered her aggravated assault conviction in

an unrelated case.   Thus, these claims are waived.     See Griffin, supra.

Appellant’s inclusion of these issues in her Rule 1925(b) statement does not

cure this defect. See McAfee, supra. Regarding the claim Appellant did

preserve, i.e., the allegation that the court ignored various mitigating

factors, Appellant does not present a substantial question warranting review.

See Cruz-Centeno, supra (explaining allegation that sentencing court

failed to consider or adequately consider certain factors does not raise

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substantial question).

      Moreover,   in     analyzing   Appellant’s   challenge   to   its   sentencing

discretion, the trial court reasoned:

         At the sentencing hearing, this [c]ourt noted that it had
         read and considered a Pre-Sentence Investigation report.
         …

         At the time of the plea, this [c]ourt noted that the
         maximum sentence for Aggravated Assault by Deadly
         Weapon was 10 years and the maximum sentence for
         [REAP] was two (2) years, for a maximum possible
         sentence of 12 years.

         This [c]ourt then placed its reasons for imposing sentence
         on the record. It stated:

            THE COURT:       Well, you know, [Appellant], I’ve
            gone over your record, and you have been actually
            having problems with alcohol and mental health
            issues since 1992.

                                     *    *    *

            THE COURT:        You have been in and out of
            treatment. Now, 15 years later, here we are. We
            have two people that you have physically assaulted.
            One of them is [a victim in an unrelated case]; and
            the second one is the victim in this case.

            So I will note for the record that you are sorry and
            you can’t do anything about it[.]

                                     *    *    *

            Well, the guidelines indicate that you are an eight
            and a one, which is a standard range sentence of 12
            to 18 months. The [c]ourt will note that you did
            plead guilty; but your background, as I just stated,
            begins in 1992; and you’ve been on and off trying to
            rehabilitate yourself, and you have never been
            successful.

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           You have—you apparently stabbed your boyfriend in
           January of 2014, and then a month later caused
           [Victim] to lose his eyesight.

           You have prior offenses for DUI, for simple assault,
           for terroristic threats; and I am particularly beside
           myself because you had a beer last night.

           [APPELLANT]:      I   was   being   honest     with   the
           [c]ourt.

           THE COURT:      Well, I know; but it leads me to
           believe that you have no intention to rehabilitate
           yourself.

        (Sentencing Hearing Transcript, p. 8-9, 11-12).

        As the record reflects, this [c]ourt considered the
        circumstances of the present offense[s], evaluated
        [Appellant’s] potential for rehabilitation and imposed a
        sentence which took all of these factors into consideration.
        The sentence imposed—18 to 36 months, was well within
        the statutory guidelines and was, therefore, legal. Given
        the facts of this case, the sentence imposed was
        appropriate, not excessive and well within this [c]ourt’s
        discretion. This claim must fail.

(Trial Court Opinion, filed December 1, 2015, at 2-4). We see no reason to

disrupt the court’s sentencing discretion in this case.    See Walls, supra;

Crump, supra; Fullin, supra.

     The record makes clear the court heard the Commonwealth’s recitation

of the facts at the guilty plea hearing, which Appellant did not dispute. The

court also heard Victim’s impact statement at the guilty plea hearing and

again at sentencing.    The court evaluated the arguments of counsel at

sentencing, including but not limited to, defense counsel’s request for a


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county sentence based on Appellant’s alcohol dependence and rehabilitative

needs, and her acceptance of responsibility. Additionally, the court had the

benefit of a PSI report, so we can presume it was aware of relevant

information   regarding   Appellant’s   character   and    weighed    those

considerations along with mitigating factors.   See Fowler, supra; Cruz-

Centeno, supra. Therefore, even if Appellant had preserved her claims on

appeal, they would nevertheless merit no relief. See Walls, supra; Fullin,

supra. Accordingly, we affirm.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/28/2016




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