J-S76036-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

DENNIS M. SCHELL,

                            Appellant              No. 1222 WDA 2014


            Appeal from the Judgment of Sentence of March 18, 2013
                In the Court of Common Pleas of Allegheny County
    Criminal Division at No(s): CP-02-CR-0014569-2011, CP-02-CR-0014570-
                          2011, CP-02-CR-0014572-2011


BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OLSON, JJ.

MEMORANDUM BY OLSON, J.:                        FILED JANUARY 13, 2015

        Appellant, Dennis M. Schell, appeals from the judgment of sentence

entered on March 18, 2013, as made final by the denial of Appellant’s post-

sentence motion on July 23, 2014. We affirm.

        On December 13, 2012, Appellant entered an open guilty plea to four

counts of robbery under 18 Pa.C.S.A. § 3701(a)(1)(ii)1 and one count of

robbery under 18 Pa.C.S.A. § 3701(a)(1)(vi).2       During the guilty plea

colloquy, the Commonwealth outlined the factual basis for the plea:
____________________________________________


1
  Robbery under Section 3701(a)(1)(ii) is defined as follows: “A person is
guilty of robbery if, in the course of committing a theft, he . . . threatens
another with or intentionally puts him in fear of immediate serious bodily
injury.” 18 Pa.C.S.A. § 3701(a)(1)(ii).
2
 Robbery under Section 3701(a)(1)(vi) is defined as follows: “A person is
guilty of robbery if, in the course of committing a theft, he . . . takes or
(Footnote Continued Next Page)
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         At [docket number CP-02-CR-0014570-2011 (hereinafter
         “the 570 case”),] the testimony would have been that . .
         [o]n October 27, 2011[,] at [9:00 a.m., Appellant] entered
         [] the First Commonwealth Bank located at 4900 Liberty
         Avenue [in Pittsburgh]. He approached [M.K.] at the bank
         and told him he had a gun and indicated that he would
         shoot him if he did not give him the money. At this point[,]
         they handed over in the bank $9,551[.00] to [Appellant].
         He was subsequently identified by [M.K.] – I’m sorry, [by
         M.S.] – positively identified him in a photo array.

         At [docket number CP-02-CR-0014569-2011 (hereinafter
         “the 569 case”),] the testimony would have been that on
         October 29[, 2011,] at 11:15 a.m., [Appellant] entered the
         Citizens Bank at 837 Freeport Road in Allegheny County;
         [M.K.] was working the window. He approached him and
         indicated he had a gun and he would use it and he asked for
         the fifties and hundreds. During the robbery[, J.M.] heard
         the demands by [Appellant] and went to push the panic
         button. [Appellant] in turn turned towards [J.M.] and said
         don’t touch that button. He grabbed the money and walked
         out of the bank taking with him $2,977[.00]. He was
         subsequently identified from a photo array by the
         individuals in the bank.

         [At docket number CP-02-CR-0014572-2011 (hereinafter
         “the 572 case”), the testimony would have been that, o]n
         October 31, 2011[,] at 11:30 [a.m., Appellant] went back
         to the First Commonwealth Bank at 4900 Liberty Avenue.
         At this point he approached [M.S.], being [the] bank
         manager. He indicated that he should sit down at his desk
         and he told him it was a robbery, he had a gun and I will
         start shooting if you don’t give me the money. [M.S.] then
         went to [Mr. P.,] a bank teller, and told him to give him the
         money. They give him $10,000[.00]. [Appellant] indicated
                       _______________________
(Footnote Continued)

removes the money of a financial institution without the permission of the
financial institution by making a demand of an employee of the financial
institution orally or in writing with the intent to deprive the financial
institution thereof.” 18 Pa.C.S.A. § 3701(a)(1)(vi).




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        that’s not filling the f’ing bag. He at that point obtained
        $58,000[.00] from the bank. He left the bank and he had
        the money in his arms.

        The bank security officers who also would identify him along
        with these two tellers and the manager, followed him to a
        residence where he was staying.            Police arrived[,]
        surround[ed] the residence[,] and were able to place
        [Appellant] under arrest and to get that $58,000[.00] back.

N.T. Guilty Plea Hearing, 12/13/12, at 5-7.

     The      trial   court    accepted     Appellant’s   guilty   plea   and   deferred

sentencing,     pending       Appellant’s   pre-sentence     report   and   psychiatric

evaluation.

     Appellant’s sentencing hearing took place on March 18, 2013. As the

trial court noted during the sentencing hearing, Appellant’s psychiatric

evaluation revealed that Appellant suffers from “a number of health issues,”

including schizophrenia. N.T. Sentencing, 3/18/13, at 2. Further, during the

hearing, Appellant testified:        that he suffers from schizophrenia; that he

takes “numerous medications” for his mental and physical health problems;

that, prior to his string of robberies, he was forced to take the drug

clonazepam; that the clonazepam caused him to “go crazy” and lose

consciousness; that he was on clonazepam at the time of the robberies; and,

that, as a result of the clonazepam, he did not remember committing the

robberies. Id. at 2-6.

     The trial court noted Appellant’s mental and physical health problems.

Nevertheless, at each of the three docket numbers, the trial court sentenced

Appellant to serve a term of five to ten years in prison, and the trial court


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ordered that Appellant serve the three sentences consecutively.3,      4
                                                                           Thus,

the trial court sentenced Appellant to serve an aggregate term of 15 to 30

years in prison.

       During the sentencing hearing, the trial court explained the reasons it

sentenced Appellant to serve an aggregate term of 15 to 30 years in prison:

         [Appellant] has poor physical health and poor mental
         health. However, he seems to be able to overcome all of
         this adversity in order to rob banks.[5]

         [Appellant] . . . has had incarceration in the jail, he has had
         halfway houses, he’s had electronic monitoring. And he still
         . . . went out and committed three robberies. He may or
         may not have had a gun, we don’t know. No one saw it.
         But he claimed to have a gun, and he threatened to kill
         these people.

         I mean, I just can’t overlook the behavior of someone who
         in the standard range is looking at 120 months, which is the
         maximum sentence. I mean, it is enough.

                                           ...

____________________________________________


3
  The trial court sentenced Appellant to serve terms of five to ten years in
prison for three of Appellant’s five robbery convictions. The trial court
imposed no further penalty for the remaining two robbery convictions. See
Order of Sentence, 3/18/13, at 1.
4
  Appellant acknowledges that each of his sentences were in the standard
range of our sentencing guidelines. Appellant’s Brief at 12; see also
Guideline Sentence Form, 3/18/13, at 1.
5
  During sentencing, the trial court noted that Appellant has ten prior
convictions, seven of which are for robbery. N.T. Sentencing, 3/18/13, at 5.
Moreover, Appellant admitted that he has committed “a number of bank
robberies” in the past. Id. at 6-7.



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        [T]here is a huge gap between incarceration and mental
        health. And if I could sentence [Appellant] to a mental
        health facility for 15 years I would be more than happy to
        do it. I[,] however, don’t have that ability.

        Now, I do know that the state correctional institution of
        Wymer has a mental health program, and does take state
        prisoners. And I will make a recommendation that’s where
        [Appellant] do his incarceration, after he is classified at
        Camp Hill.

        But for the reasons I have already stated, I see [Appellant]
        not rehabilitating himself, for whatever reason.

        I mean, you know, clearly if it was – I just have to balance
        what’s going on for the rest of the world against what’s
        going on in [Appellant’s] life. And I am sorry that there is
        no place to put him. I think he does need inpatient mental
        health treatment, but don’t believe he will go or take
        advantage of it.

N.T. Sentencing, 3/18/13, at 9-12.

      Following sentencing, Appellant did not file a timely post-sentence

motion or notice of appeal.

      On September 5, 2013, Appellant filed a pro se “Petition for

Reconsideration of Sentence” in the lower court. The lower court treated the

petition as a first petition under Pennsylvania’s Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546.          The lower court thus appointed

counsel to represent Appellant.

      On July 10, 2014, counsel filed an amended PCRA petition, claiming

that Appellant’s plea counsel was ineffective for failing to file a post-sentence

motion. On July 14, 2014, the PCRA court granted Appellant’s PCRA petition

and reinstated Appellant’s post-sentence rights nunc pro tunc.



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        Appellant then filed a timely post-sentence motion, claiming that the

trial   court   abused    its   discretion   when   it   ran   his   three   sentences

consecutively.    As Appellant claimed, his aggregate sentence of 15 to 30

years in prison was manifestly excessive because his “crimes were

occasioned by his mental illness and negative reactions to prescribed drugs”

and because “warehousing [Appellant] for 15 [to] 30 years in the state

prison system will not improve his mental health, and will likely cause it to

deteriorate further.” Appellant’s Post-Sentence Motion, 7/17/14, at 5.

        The trial court denied Appellant’s post-sentence motion on July 28,

2014 and Appellant filed a timely notice of appeal.             Appellant raises the

following claim on appeal:

          Did the trial court err in denying Appellant’s [post-sentence]
          motion[] since the trial court erred in sentencing Appellant
          since Appellant’s aggregate sentence of 15-30 years’
          imprisonment was manifestly excessive since Appellant’s
          crimes were occasioned by his mental illness and negative
          reactions to prescribed medications. While each 5-10 year
          sentence for each robbery was not improper, the sentences
          could have been run concurrently, since warehousing
          Appellant for 15-30 years in the state prison system will not
          improve his mental health, and will likely cause it to
          deteriorate further?

Appellant’s Brief at 3.

        Appellant challenges the discretionary aspects of his sentence.

“[S]entencing is a matter vested in the sound discretion of the sentencing

judge, whose judgment will not be disturbed absent an abuse of discretion.”

Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 2001).



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Moreover, pursuant to statute, Appellant does not have an automatic right to

appeal the discretionary aspects of his sentence.          See 42 Pa.C.S.A.

§ 9781(b).    Instead, Appellant must petition this Court for permission to

appeal the discretionary aspects of his sentence. Id.

     As this Court has explained:

        [t]o reach 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, Pa.R.A.P. 902,
        903; (2) whether the issue was properly preserved at
        sentencing or in a motion to reconsider and modify
        sentence, 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. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).

     In the case at bar, Appellant satisfied the first three requirements, as

he filed a timely notice of appeal, properly preserved his discretionary

challenge in a post-sentence motion, and facially complied with Pennsylvania

Rule of Appellate Procedure 2119(f).       We must now determine whether

Appellant has presented a “substantial question that the sentence appealed

from is not appropriate under the Sentencing Code.” Cook, 941 A.2d at 11.

     Generally, to raise a substantial question, an appellant must “advance

a colorable argument that the trial judge’s actions were:      (1) inconsistent

with a specific provision of the Sentencing Code; or (2) contrary to the

fundamental     norms     which     underlie   the      sentencing   process.”

Commonwealth v. McKiel, 629 A.2d 1012, 1013 (Pa. Super. 1993);

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Commonwealth v. Goggins, 748 A.2d 721, 726 (Pa. Super. 2000) (en

banc), appeal denied, 759 A.2d 920 (Pa. 2000). Moreover, in determining

whether an appellant has raised a substantial question, we must limit our

review to Appellant’s Rule 2119(f) statement. Goggins, 748 A.2d at 726.

This limitation ensures that our inquiry remains “focus[ed] on the reasons

for which the appeal is sought, in contrast to the facts underlying the appeal,

which are necessary only to decide the appeal on the merits.”      Id. at 727

(internal emphasis omitted).

      In his Rule 2119(f) statement, Appellant acknowledges that his three

sentences all fell within the standard range of our sentencing guidelines.

Appellant’s Brief at 12.     However, Appellant claims that his aggregate

sentence of 15 to 30 years in prison was manifestly excessive because his

crimes were occasioned by “his mental illness and a negative reaction to

prescription medication” and because “warehousing [Appellant] in the state

prison system for 15 [to] 30 years will do nothing to address his mental

illness or rehabilitative needs.” Id. at 12-13.

      In essence, Appellant claims that, even though “the sentencing court

sentenced [Appellant] within the sentencing guidelines[,] . . . the case

involves circumstances where the application of the guidelines would be

clearly unreasonable.”     42 Pa.C.S.A. § 9781(c)(2); Commonwealth v.

Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013) (hereinafter “Dodge IV”)

(recognizing the distinction between “a bald claim of excessiveness due to


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the consecutive nature of a sentence” and a claim that the court erred in

imposing consecutive sentences within the guidelines ranges because “the

case involves circumstances where the application of the guidelines would be

clearly unreasonable, resulting in an excessive sentence”).

      Appellant first claims that, at sentencing, the trial court failed to

adequately consider the possibility that his crimes were occasioned by “his

mental   illness   and   a   negative   reaction   to   prescription   medication.”

Appellant’s Brief at 12-13.       According to Appellant, by failing to fully

appreciate these two mitigating factors, the trial court imposed a manifestly

excessive aggregate sentence under the circumstances.

      Appellant’s first claim does not raise a substantial question under the

Sentencing Code. See Commonwealth v. McNabb, 819 A.2d 54, 57 (Pa.

Super. 2003) (“an allegation that the sentencing court did not consider

certain mitigating factors does not raise a substantial question”); see

Commonwealth v. Dunphy, 20 A.3d 1215, 1222 (Pa. Super. 2011) (“[a]n

allegation that the sentencing court ‘failed to consider’ or ‘did not adequately

consider’ various factors does not raise a substantial question that the

sentence was inappropriate”), quoting McKiel, 629 A.2d at 1013; see also

Commonwealth v. Felmlee, 828 A.2d 1105, 1106 (Pa. Super. 2003) (a

claim that the trial court “erred by imposing an aggravated range sentence

without consideration of mitigating circumstances raises a substantial




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question”) (emphasis added).     Therefore, we may not reach the merits of

Appellant’s first claim.

      Appellant also claims that his aggregate sentence is manifestly

excessive because “warehousing [Appellant] in the state prison system for

15 [to] 30 years will do nothing to address his mental illness or rehabilitative

needs.” Appellant’s Brief at 12-13. As this Court has held, a claim that the

trial court failed to consider the rehabilitative needs of a defendant does

raise a substantial question under the Sentencing Code. Dodge IV, 77 A.3d

at 1273 (“we find that Appellant’s claim that the sentencing court

disregarded rehabilitation and the nature and circumstances of the offense in

handing down its [consecutive, standard range] sentence presents a

substantial question for our review”); see also Commonwealth v. Riggs,

63 A.3d 780, 786 (Pa. Super. 2013) (a claim that the trial court “failed to

consider relevant sentencing criteria, including the protection of the public,

the gravity of the underlying offense and the rehabilitative needs” of the

defendant raised a substantial question).      Therefore, we may reach the

merits of Appellant’s claim that, at sentencing, the trial court failed to

consider Appellant’s rehabilitative needs.

      However, Appellant’s claim on appeal immediately fails on its merits,

as the trial court undoubtedly considered Appellant’s rehabilitative needs

when it imposed Appellant’s sentence. Certainly, during sentencing, the trial

court spoke at length regarding Appellant’s need for mental health treatment


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and rehabilitation, but the trial court reasoned that, for the protection of the

public, it was required to place Appellant in prison for a significant period of

time. Nevertheless, the trial court informed Appellant:

        I do know that    the state correctional institution of Wymer
        has a mental       health program, and does take state
        prisoners. And    I will make a recommendation that’s where
        [Appellant] do    his incarceration, after he is classified at
        Camp Hill.

N.T. Sentencing, 3/18/13, at 11.

      From the above, it is apparent that the trial court expressly considered

Appellant’s rehabilitative needs at sentencing.       Appellant’s claim to the

contrary is factually baseless; thus, the claim fails on its merits.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/13/2015




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