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NON-PRECEDENTIAL DECISION             - SEE SUPERIOR COURT I.O.P.     65.37
COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                   v.

JULIAN WILLIS,                                    No. 1588 EDA 2016

                        Appellant


           Appeal from the Judgment of Sentence, January 8, 2016,
             in the Court of Common Pleas of Philadelphia County
              Criminal Division at Nos. CP-51-CR-0009854-2013,
                           CP-51-CR-0010365-2013


BEFORE:    BOWES, J., DUBOW, J. AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED APRIL 06, 2017

       Julian Willis appeals from the judgment of sentence of January 8,

2016, following his conviction of sexual offenses.     On appeal, appellant

challenges the discretionary aspects of his sentence. We affirm.

       The trial court has aptly summarized the history of this case as

follows:

                  On July 13, 2013,  [appellant] was arrested and
             charged on two separate bills of information with
             inter alia[:] 1) Attempted Rape by Forcible
             Compulsion and Unlawful Contact with a Minor at
             CP-51-CR-0009854-2013;[Footnote 1][1]           and,
             2) Unlawful Contact with a Minor, Involuntary
             Deviate Sexual Intercourse (IDSI) with a Child, and
             Rape    of   a    Child    at    CP-51-CR-0010365-

1The 11 -year -old victim, J.S., was sleeping in bed when appellant laid down
beside her, pulled her underwear down, and rubbed his penis between her
buttocks. (Notes of testimony, 1/8/16 at 5-6, 20.)
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             2013.[Footnote 2][2]       [Appellant] entered into an
             open guilty plea on April 24, 2015, to these charges.
             On January 8, 2016, [appellant] was sentenced to
             consecutive periods of confinement in a state
             correctional facility of two to five years on the charge
             of Criminal Attempt to Commit Rape by Forcible
             Compulsion at CP-51-CR-0009854-2013, five to ten
             years on the charge of IDSI, and five to ten years on
             the charge of Rape of a Child at CP-51-CR-0010365-
             2013, resulting in an aggregate total of 12 to
             25 years['] confinement. The Court entered an order
             of guilt without further penalty on both charges of
             Unlawful Contact with a Minor.

                   [Footnote 1] 18 Pa.C.S.A. [§] 901(a);
                   18 Pa.C.S.A. [§] 6318(a)(1).

                   [Footnote       2]            18       Pa.C.S.A.
                   [§] 6318(a)(1);          [18           Pa.C.S.A.
                   §   3123(b);] 18 Pa.C.S.A. [§] 3121(c).

                   On January 14, 2016,         [appellant] timely filed   a
             Motion for Reconsideration of Sentence, which was
             denied    by   Operation of Law         pursuant to
             Rule 720(B)(3)(c) of the Pennsylvania Rules of
             Criminal Procedure on May 17, 2016. On May 19,
             2016, [appellant] timely filed the instant appeal to
             the Superior Court of Pennsylvania.       On June 6,
             2016, this Court filed and served on [appellant] an
             Order pursuant to Rule 1925(b) of the Pennsylvania
             Rules of Appellate Procedure, directing [appellant] to
             file and serve a Statement of Errors Complained of
             on Appeal within 21 days of the Court's Order. On
             June 10, 2016, [appellant] timely filed a Preliminary
             Concise Statement of Matters Complained of on
             Appeal pursuant to Pa.R.App.P. 1925(b).

Trial court opinion, 9/21/16 at 1-2.

       Appellant has raised the following issue for this court's review:


2
 Appellant repeatedly raped the 9 -year -old victim, K.B., orally and vaginally
over a four -month period. (Notes of testimony, 1/8/16 at 6, 9, 21.)

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            I.     Whether [appellant]'s sentence was an abuse
                   of discretion as he was sentenced by the court
                   to 2-5 followed by 10-20 years consecutive for
                   an aggregate 12-25 years[?] The court did not
                   thoroughly consider [appellant]'s already
                   lengthy       incarceration,   attempts      at
                   rehabilitation, his ability for rehabilitation,
                   strong work ethic, acceptance of responsibility
                   through a plea, acceptance of responsibility
                   through giving a statement to police, his
                   rehabilitative needs, very young age, mental
                   health issues noted in the presentence
                   investigation, own abuse as a child and that it
                   was his first offense.

Appellant's brief at   5   (capitalization deleted).3


3 We    note that appellant's statement of the case contains argument, in
violation of Pa.R.A.P. 2117(b), which provides: "(b) All argument to be
excluded. The statement of the case shall not contain any argument. It is
the responsibility of appellant to present in the statement of the case a
balanced presentation of the history of the proceedings and the respective
contentions of the parties."       (Appellant's brief at 9.)  Furthermore,
appellant's summary of the argument states that, "[The trial court]
sentenced [appellant] well above the guidelines in a consecutive manner."
(Id. at 10.) This statement is demonstrably false, as set forth infra. In
fact, appellant's sentences, while run consecutively, were at or below the
mitigated range of the guidelines. We caution counsel that,

                   An attorney's obligation to the court is
                   one that is unique and must be
                   discharged with candor and with great
                   care. The court and all parties before
                   the court rely upon representations made
                   by counsel.        We    believe without
                   qualification that an attorney's word is
                   his bond.

            LaSalle National Bank v. First Connecticut
            Holding Group, L.L.C. XXIII, 287 F.3d 279, 293
            (3d Cir. 2002) (quoting Baker Industries, Inc. v.
            Cerberus, Ltd., 764 F.2d 204, 212 (3d Cir. 1985)).


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                Preliminarily, we note that "there is no absolute right
                to appeal when challenging the discretionary aspect
                of a sentence." Commonwealth v. Ahmad, 961
                A.2d 884, 886 (Pa.Super. 2008). An appellant must
                first satisfy a four-part test to invoke this Court's
                jurisdiction. We examine

                      (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
                      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. Griffin, 65 A.3d 932, 935
                (Pa.Super. 2013) (citation omitted).

Commonwealth v. Schrader,              141 A.3d 558, 563 (Pa.Super. 2016).

        Here, appellant filed    a   timely notice of appeal.   He also filed a   timely

post -sentence motion challenging the discretionary aspects of his sentence.

Appellant has included the requisite Rule 2119(f) statement in his brief.

(Appellant's brief at 7-8.) Therefore, we turn to whether appellant has set

forth   a   substantial question for this court's review.

                "The determination of what constitutes a substantial
                question must be evaluated on a case -by -case
                basis." Commonwealth v. Edwards, 71 A.3d 323,
                330 (Pa.Super. 2013) (citations omitted).        "A


Great Valley School Dist. v. Zoning Hearing Bd. of East Whiteland
Tp., 863 A.2d 74, 79 (Pa.Cmwlth. 2004), appeal denied, 876 A.2d 398
(Pa. 2005).


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             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."     Id. (citations
             omitted). "Additionally, we cannot look beyond the
             statement of questions presented and the prefatory
             2119(f) statement to determine whether a
             substantial question exists." Commonwealth v.
             Provenzano, 50 A.3d 148, 154 (Pa.Super. 2012).

Commonwealth v. Diehl, 140 A.3d 34, 44-45 (Pa.Super. 2016), appeal
denied,       A.3d     ,   2016 WL 6246754 (Pa. 2016).

        In his Rule 2119(f) statement, appellant argues that the trial court

failed to give adequate weight to mitigating factors, including his mental

health issues, his cooperation with police, and the fact that he was also       a


victim of child sexual abuse. (Appellant's brief at 7.) Appellant claims that

his aggregate sentence of 12 to 25 years' imprisonment was manifestly

excessive and unreasonable. (Id. at 7-8.)

       The trial court heard testimony from appellant and his family, as well

as argument from counsel, and was well aware of the mitigating evidence in

appellant's favor. (Notes of testimony, 1/8/16 at 9-23.) The trial court also

had the benefit of a pre -sentence investigation ("PSI") report.    "[W]here the

sentencing judge had the benefit of    a    [PSI] report, it will be presumed that

he or she was aware of the relevant information regarding the defendant's

character and weighed those considerations along with mitigating statutory

factors."    Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa.Super.


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2013), appeal denied, 85 A.3d 481 (Pa. 2014), quoting Commonwealth

v.   Bricker,   41 A.3d 872, 876 n.9 (Pa.Super. 2012) (quotation and quotation

marks omitted); Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)

("It would      be foolish, indeed, to take the position              that if    a   court    is   in

possession of the facts, it will fail to apply them to the case at hand").

        To the extent appellant argues that the trial court gave insufficient

weight to certain mitigating factors, including his mental health issues and

acceptance of responsibility, he fails to raise             a       substantial question of

inappropriateness.       Commonwealth v. Lopez, 627 A.2d 1229 (Pa.Super.
1993) (allegation that sentencing court failed to attach sufficient weight to

mitigating factors of record does not present                   a    substantial question);

Commonwealth v. Jones, 613 A.2d 587 (Pa.Super. 1992), appeal
denied, 629 A.2d 1377          (Pa.   1993) (arguments that sentencing court

improperly weighed various legitimate factors does not raise                     a   substantial

question); Commonwealth v. Williams, 562 A.2d 1385, 1388 (Pa.Super.

1989) (an allegation that the trial court did not adequately consider certain

mitigating factors is, in effect,      a   request that this court substitute its

judgment for that of the trial court            in   fashioning appellant's sentence).

Indeed, each of appellant's sentences in this case was within the mitigated

range of the sentencing guidelines.         (Notes of testimony, 1/8/16 at 8, 23;

trial   court opinion,    9/21/16 at 5-6.)             The trial       court rejected the

Commonwealth's         sentencing     recommendation            of     24   to       48      years'



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incarceration. (Notes of testimony, 1/8/16 at 12.) See Commonwealth v.

Maneval, 688 A.2d 1198, 1199-1200 (Pa.Super. 1997) ("Generally, if the

sentence imposed falls within the sentencing guidelines, no substantial

question exists."), citing Commonwealth v. Johnson, 666 A.2d 690, 692

(Pa.Super.     1995);     Commonwealth v. Mobley, 581 A.2d 949, 952
(Pa.Super. 1990) (claim that sentence failed to take into consideration the

defendant's rehabilitative needs and was manifestly excessive did not raise                   a


substantial question where sentence was within statutory guidelines and

within sentencing guidelines).

        Similarly,   appellant's    argument that        the trial    court abused          its

discretion by running his sentences consecutively fails to raise                a   substantial

question.      The trial court concluded            that consecutive sentences were

appropriate where there were separate criminal acts involving multiple

victims.    (Notes of testimony, 1/8/16 at 22-23; trial court opinion, 9/21/16

at 7-8.)    "In imposing     a   sentence, the trial judge may determine whether,

given the facts of    a   particular case,   a   sentence should run consecutive to or

concurrent with another sentence being imposed."                     Commonwealth v.
Perry, 883 A.2d 599, 603 (Pa.Super. 2005) (citations omitted).
              Long standing precedent of this Court recognizes
              that  42 Pa.C.S.A. section 9721 affords the
              sentencing court discretion to impose its sentence
              concurrently or consecutively to other sentences
              being imposed at the same time or to sentences
              already imposed. Commonwealth v. Graham, 541
              Pa. 173, 184, 661 A.2d 1367, 1373 (1995).                 .   .   .


              Any challenge to the exercise of this discretion


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            ordinarily does not raise       substantial question.
                                              a
            Commonwealth         v.   Johnson,  873 A.2d 704,
            709 n.2       (Pa.Super.    2005);      see     also
            Commonwealth v. Hoag, 445 Pa.Super. 455, 665
            A.2d 1212, 1214 (Pa.Super. 1995) (explaining that a
            defendant is not entitled to a "volume discount" for
            his or her crimes).

Commonwealth v. Mastromarino,            2   A.3d 581, 586-587 (Pa.Super. 2010),

appeal denied,        14 A.3d 825 (Pa.       2011), quoting Commonwealth v.

Gonzalez-Dejusus, 994 A.2d 595, 599 (Pa.Super. 2010).                  "[T]he key to

resolving the preliminary substantial question inquiry is whether the decision

to sentence consecutively raises the aggregate sentence to, what appears

upon its face to be, an excessive level in light of the criminal conduct at

issue in the case."   Id. at 587, quoting Gonzalez-Dejusus, supra.
       The aggregate sentence of 12 to 25 years' imprisonment is neither

grossly disparate to appellant's conduct nor does it "viscerally appear as

patently 'unreasonable.' Id. at 589, quoting Gonzalez-Dejusus, supra.

We agree with the trial court that given the facts of the case, consecutive

sentences were warranted.      In fact, as the Commonwealth observes, the

trial court exercised considerable leniency       in   imposing   a   below -guideline

sentence. (Commonwealth's brief at 10.) There is nothing to review here.

       Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn,
Prothonotary

Date: 4/6/2017




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