J-S24035-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JAMES M. ARMENTROUT, JR.,                :
                                          :
                    Appellant             :        No. 1486 MDA 2017

            Appeal from the Judgment of Sentence July 21, 2017
                in the Court of Common Pleas of York County,
            Criminal Division at No(s): CP-67-CR-0005195-2016,
                           CP-67-CR-0006540-2016

BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                            FILED JULY 19, 2018

      James M. Armentrout, Jr. (“Armentrout”), appeals from the judgment of

sentence imposed following his convictions of two counts each of fleeing or

attempting to elude police and driving while operating privilege is suspended,

and one count each of failure to stop at a red signal, reckless driving, and

recklessly endangering another person.        See 75 Pa.C.S.A. §§ 3733(a),

1543(a), 3112(a)(3)(i), 3736(a); 18 Pa.C.S.A. § 2705. We affirm.

      On June 17, 2016, police attempted to stop Armentrout’s vehicle for

failing to have working lights around the license plate. Armentrout led police

on a high-speed chase through York City, at a speed of approximately fifty to

sixty miles per hour, while running several red lights.       Police ultimately

stopped the pursuit in the interests of public safety. Thereafter, police issued

a warrant for Armentrout’s arrest.
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       On June 18, 2016, police attempted to apprehend Armentrout, who was

driving his vehicle, in the parking lot of a local business. As officers instructed

Armentrout to exit the vehicle, he turned his vehicle and accelerated toward

the officers, at which time the officers fired several gunshots at Armentrout’s

vehicle. Armentrout managed to flee the parking lot and led police on another

high-speed chase through a densely populated area of York City. Even with

assistance from other departments, the police were unable to keep up with

Armentrout’s vehicle and ended the pursuit.

       Armentrout was subsequently arrested at Hanover Hospital, where he

sought treatment for a gunshot wound. Armentrout was charged under two

criminal informations, and the cases were consolidated. In May 2017, a jury

found Armentrout guilty of the above-mentioned crimes. On July 21, 2017,

the trial court imposed an aggregate sentence of seven years, six months to

fifteen years in prison.1       Armentrout filed a timely Post-Sentence Motion,

which the trial court denied. Armentrout filed a timely Notice of Appeal and a

court-ordered Concise Statement of Matters Complained of on Appeal

pursuant to Pa.R.A.P. 1925(b).

       Armentrout now raises the following issues for our review:




____________________________________________


1 Armentrout received aggravated sentences of three years and three months
to six years and six months for the fleeing or attempting to elude convictions.
He also received a sentence of one to two years for reckless endangerment.
The trial court imposed these sentences consecutively.

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      1) Whether the trial court abused its discretion by improperly
         excessively sentencing Armentrout based on factors that
         constitute elements of the offense[?]

      2) Whether the trial court abused its discretion by improperly
         excessively sentencing Armentrout based upon the severity or
         gravity of the [o]ffense[?]

Brief for Appellant at 4.

      Armentrout challenges the discretionary aspects of his sentence.

“Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,

170 (Pa. Super. 2010).      Prior to reaching the merits of a discretionary

sentencing issue,

      [this Court conducts] a four-part analysis to determine: (1)
      whether appellant has filed a timely notice of appeal, see
      Pa.R.A.P. 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 the 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).

                                     ***

      The determination of what constitutes a substantial question must
      be evaluated on a case-by-case basis. 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.

Moury, 992 A.2d at 170 (quotation marks and some citations omitted).

      Here, Armentrout filed a timely Notice of Appeal, preserved his

sentencing claims in a Post-Sentence Motion, and included a Rule 2119(f)



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Statement in his brief.    Further, Armentrout’s claim that the trial court

improperly imposed an aggravated-range sentence based on a factor that was

an element of the offense raises a substantial question. See Commonwealth

v. Fullin, 892 A.2d 843, 848 (Pa. Super. 2006) (holding that a substantial

question is raised when the appellant challenges whether the trial court

improperly based an aggravated range sentence on a factor that constituted

an element of the offense). Moreover, Armentrout’s claim that the trial court

improperly imposed an aggravated range sentence because it “double

counted” the severity or gravity of the offenses raises a substantial question.

See Commonwealth v. Goggins, 748 A.2d 721, 732 (Pa. Super. 2000)

(stating that “when fashioning a sentence, a sentencing court may not ‘double

count’ factors already taken into account in the sentencing guidelines.”)

(citations omitted). Thus, we will review Armentrout’s sentencing claims.

      Our standard of review 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. Mastromarino, 2 A.3d 581, 589 (Pa. Super. 2010)

(citation omitted).

      We will address both of Armentrout’s claims together.        Armentrout

claims that the trial court abused its discretion by imposing aggravated-range

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sentences based on elements of 75 Pa.C.S.A. § 3733(a). Brief for Appellant

at 25, 27-28. Specifically, Armentrout argues that the trial court justified the

sentence by relying on the fact that Armentrout fled from police at a high rate

of speed, thereby endangering the public, which is an element of the offense.

Id. at 27-28.

      Moreover, Armentrout claims that the trial court abused its discretion

by double-counting his prior criminal record and the severity of the present

offense, which are already contemplated by the sentencing guidelines. Id. at

28-32.

      Our review of the record discloses that the trial court reviewed and

considered Armentrout’s pre-sentence investigation report. N.T., 7/21/17, at

10-11, 14, 45.     The trial court also considered his mental health/anxiety

issues, his drug and alcohol problems, and his completion of two parenting

classes, a relapse prevention class, and the Thinking For A Change program

while in prison.   Id. at 46. The court further noted Armentrout’s criminal

history and rehabilitative potential.    Id. at 41-42, 46.      The trial court

considered his apology and statements of remorse.          Id. at 19, 23, 46.

Additionally, the trial court took into account the fact that the offenses were

committed on two separate days, which gave Armentrout two separate

opportunities to make conscious decisions of wrongdoing.            Id. at 48.

Moreover, the court considered the impact that these crimes had on the

community.      Id. at 30, 33-34, 48.       Last, the trial court considered


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Armentrout’s statements indicating “an intent to kill the police officers who

were involved in this case if he’s sent upstate.” Id. at 47.

      Here, in imposing the sentence, the trial court stated that it reviewed a

pre-sentence investigation report and took into account Armentrout’s prior

criminal history, his potential for rehabilitation, and the impact on the

community.    See Commonwealth v. Downing, 990 A.2d 788, 794 (Pa.

Super. 2010) (stating that “where the trial court is informed by a pre-sentence

report, it is presumed that the court is aware of all appropriate sentencing

factors and considerations, and that where the court has been so informed,

its discretion should not be disturbed.”) (citation omitted); see also

Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002) (stating that

in sentencing, the trial court “is required to consider the particular

circumstances of the offense and the character of the defendant. In particular,

the court should refer to the defendant’s prior criminal record, his age,

personal characteristics, and his potential for rehabilitation.”) (citation

omitted).

      Further, it is clear from the record that the trial court did not “double

count” Armentrout’s prior criminal history or the nature or elements of the

crimes; instead, the trial considered a number of factors in rendering the

sentence. See Commonwealth v. Andrews, 720 A.2d 764, 768 (Pa. Super.

1998) (rejecting defendant’s argument that the sentencing was focused on his

prior criminal history in imposing the sentence, as a review of the record


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demonstrated that the court took a number of factors into consideration); see

also Griffin, 804 A.2d at 10 (noting that our law requires a sentencing court

“to consider the prior criminal record to ascertain a defendant’s amenability

to rehabilitation[.]”).

      In light of the foregoing, we discern no abuse of discretion, and cannot

grant Armentrout relief on his claims.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/19/2018




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