J-S38042-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                  Appellee                 :
                                           :
            v.                             :
                                           :
FRANK BAILEY, III,                         :
                                           :
                  Appellant                :          No. 2118 MDA 2014

    Appeal from the Judgment of Sentence entered on October 27, 2014
             in the Court of Common Pleas of Lancaster County,
               Criminal Division, No. CP-36-CR-0003342-2012

BEFORE: WECHT, STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                           FILED JULY 08, 2015

      Frank Bailey, III, (“Bailey”) appeals from the judgment of sentence

imposed following his conviction of delivery of cocaine.   See 35 Pa.C.S.A.

§ 780-113(a)(30). We affirm.

      Bailey was arrested and charged with the above-mentioned charge,

after he delivered cocaine to a confidential informant. Following a trial, the

jury found Bailey guilty.     On October 11, 2013, the trial court imposed a

two-to-four year mandatory minimum prison term based on Bailey’s delivery

of cocaine in a school zone.

      In a prior appeal, this Court concluded that the trial court improperly

applied the two-year mandatory minimum sentence without a finding by the

jury that the offense occurred in a school zone, as required by Alleyne v.

United States, 133 S.Ct. 1251 (2013), and remanded the case for
J-S38042-15


resentencing.   See Commonwealth v. Bailey, 106 A.3d 177 (Pa. Super.

2014) (unpublished memorandum).

      On October 27, 2014, the trial court resentenced Bailey to two to four

years in prison, with a RRRI minimum sentence of 18 months. Bailey filed a

timely Post-Sentence Motion on November 5, 2014.           Thereafter, the trial

court issued an Order granting Bailey’s Motion to amend the sentencing

sheet to reflect his RRRI eligibility. However, the trial court denied Bailey’s

request to reduce his sentence to one to two years.

      Bailey filed a timely Notice of Appeal.    He then filed a court-ordered

Concise   Statement   of   Errors   complained   of   on   appeal   pursuant   to

Pennsylvania Rule of Appellate Procedure 1925(b). The trial court filed an

Opinion on January 29, 2015.

      On appeal, Bailey raises the following question for our review:      “Did

the trial court abuse its discretion by imposing a sentence at the top of the

aggravated range of the [S]entencing [G]uidelines without a legitimate

basis, relying upon improper ‘aggravating’ factors, and failing to consider

mitigating factors?” Brief for Appellant at 4.

      Bailey challenges the discretionary aspects of his sentence.

      An appellant challenging the discretionary aspects of the
      sentence must invoke this [C]ourt’s jurisdiction by satisfying a
      four-part test:

      [W]e conduct 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,


                                    -2-
J-S38042-15


      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.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)

(quotation marks and some citations omitted).

      Here, Bailey filed a timely Notice of Appeal, raised his claims in a

timely Post-Sentence Motion to reconsider the sentence, and included a Rule

2119(f) Statement in his brief. Bailey’s claim that the trial court imposed his

sentence at the top of the aggravated range without having sufficient

reasons for doing so raises a substantial question on appeal. See Brief for

Appellant at 13; see also Commonwealth v. Whitmore, 860 A.2d 1032,

1036 (Pa. Super. 2004) (stating that a claim that a court failed to state

adequate reasons for the sentence raises a substantial question). Further,

Bailey’s claim that the trial court, failed to consider mitigating factors in

imposing an aggravated sentence also raises a substantial question.       See

Brief for Appellant at 15; see also Commonwealth v. Bowen, 55 A.3d

1254, 1263 (Pa. Super. 2012) (stating that a substantial question is raised

where it is alleged that the court imposed an aggravated-range sentence


                                  -3-
J-S38042-15


without considering mitigating circumstances).    Finally, Bailey’s claim that

the trial court improperly used Bailey’s prior drug conviction as a reason for

imposing an aggravated-range sentence raises a substantial question. See

Brief for Appellant at 13; see also Commonwealth v. McNabb, 819 A.2d

54, 57 (Pa. Super. 2003) (stating that “factors already used in Sentencing

Guideline computations . . . may not be used to justify an aggravated

sentence.”). Thus, we will review Bailey’s sentencing claims.

              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).

      Bailey argues that the trial court abused its discretion by imposing a

sentence in the aggravated-range without stating sufficient or appropriate

reasons for doing so.    Brief for Appellant at 19.   Bailey claims that the

Honorable Jeffery D. Wright did not have sufficient basis for sentencing in

the aggravated-range because 1) Judge Wright improperly used Bailey’s

prior drug felony as an aggravating factor, when it was already incorporated

into the sentencing guidelines; 2) Judge Wright used Bailey’s “lavish

lifestyle” as an aggravating factor, when there was no evidence to support

that factor; and 3) Judge Wright gave no consideration to mitigating factors,




                                 -4-
J-S38042-15


such as Bailey’s completion of the “Thinking for a Change” program. Id. at

19-23.

      Our review of the record discloses that Judge Wright considered a

variety of factors in imposing an aggravated-range sentence. Judge Wright

considered the Pre-Sentence Investigation Report (“PSI”), which included a

statement by Bailey where he admitted that he was not a drug user. N.T.

(Resentencing), 10/27/14, at 9; see also Moury, 992 A.2d at 171 (stating

that when the sentencing court has a PSI, it is assumed that the sentencing

court “was aware of all relevant information regarding defendant’s character

and weighed those considerations along with mitigating statutory factors”).

Bailey’s admission supported a finding that the crime was deliberate and not

done simply to feed his addiction. N.T. (Resentencing), 10/27/14 at 9.

      The record further indicates that Bailey was 29 years old, that Bailey

had his GED, could read, write, and understand English, and was intelligent

enough to understand the significance of his actions.    Id.   Judge Wright

additionally stated that Bailey has a work history, which demonstrated that

Bailey knew how to follow directions and be a productive member of society.

Id.

      Judge Wright also considered Bailey’s criminal history, consisting of

criminal convictions at six prior dockets. Id.; see also Commonwealth v.

Petras, 534 A.2d 483, 488 (Pa. Super. 1987) (stating that prior connections




                                -5-
J-S38042-15


with law enforcement are among the circumstances to be scrutinized at

sentencing).

      Finally, Judge Wright pointed out that Bailey did not attend his first

sentencing hearing, requiring the issuance of a bench warrant.           N.T.

(Resentencing), 10/27/14, at 10. Moreover, contrary to Bailey’s assertion,

Judge Wright considered the fact that Bailey completed the “Thinking for a

Change” program. Id.

      While Judge Wright stated at sentencing that Bailey led a lavish

lifestyle, which Bailey contests as not supported by the record, the multitude

of factors stated above supported the aggravated-range sentence. Thus, the

trial court did not abuse its discretion.1




1
   Bailey also argues that the trial court should have considered a lower
sentencing guideline because the offense gravity score, for delivery of less
than 2 grams of cocaine was reduced from six to five after he committed the
crime, but before he was sentenced. Brief for Appellant at 25. However,
Bailey did not raise this issue in his Concise Statement. Thus, Bailey’s claim
is waived on appeal. See Commonwealth v. Dowling, 778 A.2d 683, 686
(Pa. Super. 2001); see also Pa.R.A.P. 1925(b)(vii). Further, Bailey did not
raise this issue in his Post-Sentence motion; therefore, he has waived the
right to have this Court address the merits of the claim. See Moury, 992
A.2d at 170 (stating that the defendant must preserve the issue for appeal
in a post-sentence motion); see also Commonwealth v. Lamonda, 52
A.3d 365, 371 (Pa. Super. 2012) (stating that a claim regarding an offense
gravity score challenges the discretionary aspects of sentence).


                                    -6-
J-S38042-15


     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/8/2015




                               -7-
