J-S45015-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

CHRISTOPHER ALPHA HOLDER,

                            Appellant               No. 1401 WDA 2015


           Appeal from the Judgment of Sentence of August 14, 2015
                 In the Court of Common Pleas of Erie County
             Criminal Division at No(s): CP-25-CR-0002936-2014


BEFORE: OLSON, DUBOW AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                              FILED JUNE 29, 2016

        Appellant, Christopher Alpha Holder, appeals from the judgment of

sentence entered on August 14, 2015, following his nolo contendere plea to

aggravated assault and rape.1 We affirm.

        We briefly summarize the facts and procedural history of this case as

follows.    On August 10, 2014, Appellant took the female victim to his

residence to watch a movie. Appellant threw the victim on the couch, struck

her multiple times in the face, knocked out her front teeth, smashed a

40-ounce beer bottle on her head, stabbed her in the back with the broken

beer bottle, choked her, and bit her breasts. Appellant also forced the victim



____________________________________________


1
    18 Pa.C.S.A. §§ 2702(a)(1) and 3121(a)(1), respectively.



*Retired Senior Judge assigned to the Superior Court.
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to perform oral sex upon him and he engaged in vaginal and anal

intercourse with the victim. When Appellant fell asleep, the victim escaped.

       On July 7, 2015, the trial court accepted Appellant’s nolo contendere

plea to aggravated assault and rape. The trial court ordered a pre-sentence

investigation (PSI) report and scheduled sentencing. On August 14, 2015,

the trial court held a sentencing hearing.       At the hearing, the trial court

considered the PSI report and letters from Appellant, the victim, and the

victim’s father as well as information that Appellant was receiving mental

health treatment.       The trial court ultimately sentenced Appellant to 84 to

168 months of incarceration for aggravated assault and a consecutive term

of 78 to 156 months of imprisonment for rape.            On August 21, 2015,

Appellant filed a motion to reconsider his sentence. The trial court denied

relief by order entered on August 24, 2015. This timely appeal resulted.2

       On appeal, Appellant presents one issue for our review:

         Was the sentence in this case manifestly excessive and
         clearly unreasonable, and not individualized as required by
         law, especially in that the sentence did not properly take
         into account the several mitigating factors present?

Appellant’s Brief at 1 (complete capitalization omitted).


____________________________________________


2
   On September 14, 2015, Appellant filed a notice of appeal. On the same
date, the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely on September 30, 2015. On October 16, 2015, the trial court issued
an opinion pursuant to Pa.R.A.P. 1925(a).



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      Appellant contends that although the trial court imposed his sentences

within the sentencing guidelines, “[p]ursuant to [42 Pa.C.S.A.] § 9781(c)(2)

the sentences imposed were manifestly excessive and clearly unreasonable.”

Id. at 5. Appellant asserts the trial court abused its discretion by failing to

consider mitigating factors, including his decision to avoid trial by entering a

plea of nolo contendere, his expressed remorse and apology to the victim,

his mental health issues (depression and post-traumatic stress syndrome

(PTSD)), and his problems with alcohol abuse. Id. at 5-6. He also claims

the trial court failed to consider that he is a father and had been employed.

Id. at 6.

      Appellant's claims raise a challenge to the discretionary aspects of his

sentence, which must be considered a petition for permission to appeal.

Commonwealth v. Roberts, 133 A.3d 759, 774 (Pa. Super. 2016) (citation

omitted). To reach the merits of a discretionary sentencing issue, we must

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).

Id.

      Here, Appellant has satisfied the first three requirements.     Appellant

filed a timely notice of appeal, adequately preserved his claims in a

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post-sentence motion, and included a Rule 2119(f) statement in his brief.

However, we conclude that Appellant fails to raise a substantial question.

See Commonwealth v. Griffin, 65 A.3d 932, 936-937 (Pa. Super. 2013)

(claim that the trial court failed to consider the defendant’s rehabilitative

needs in imposing standard-range sentences did not raise a substantial

question), citing Commonwealth v. Cannon, 954 A.2d 1222, 1228–1229

(Pa. Super. 2008) (claim that the trial court failed to consider the

defendant's rehabilitative needs, age, and educational background did not

present a substantial question); Commonwealth v. Coolbaugh, 770 A.2d

788, 793 (Pa. Super. 2001), citing Commonwealth v. Mobley, 581 A.2d

949, 952 (Pa. Super. 1990) (claim that a sentence failed to take into

consideration the defendant's rehabilitative needs and was manifestly

excessive did not raise a substantial question where the sentence was within

statutory guidelines and within sentencing guidelines); Commonwealth v.

Coss, 695 A.2d 831, 833 (Pa. Super. 1997) (when the sentence imposed

falls within the statutory limits, an appellant's claim that a sentence is

manifestly excessive fails to raise a substantial question); Commonwealth

v. Bershad, 693 A.2d 1303, 1309 (Pa. Super. 1997) (claim that trial court

failed to appropriately consider appellant's rehabilitative needs does not

present substantial question); Commonwealth v. Lawson, 650 A.2d 876,

881 (Pa. Super. 1994) (claim of error for failing to consider rehabilitative

needs does not present substantial question).


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         Even if we were to determine that Appellant raised a substantial

question, we find no merit to the underlying allegation.             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.

Griffin, 65 A.3d at 937.

         In reviewing a sentence on appeal, an appellate court shall vacate the

sentence and remand the case to the sentencing court with instructions if it

finds:

           (1)   the sentencing court purported to sentence within the
                 sentencing guidelines but applied the guidelines
                 erroneously;

           (2)   the sentencing court sentenced within the sentencing
                 guidelines but the case involves circumstances where
                 the application of the guidelines would be clearly
                 unreasonable; or

           (3)   the sentencing court sentenced outside the sentencing
                 guidelines and the sentence is unreasonable.

                 In all other cases[,] the appellate court shall affirm
                 the sentence imposed by the sentencing court.

42 Pa.C.S.A. § 9781.

         When imposing a sentence,




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        a 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. Where the sentencing court had
        the benefit of a [PSI], we can assume the sentencing court
        was aware of relevant information regarding the defendant's
        character and weighed those considerations along with
        mitigating statutory factors. Further, where a sentence is
        within the standard range of the guidelines, Pennsylvania
        law views the sentence as appropriate under the Sentencing
        Code. See Commonwealth v. Cruz–Centeno, 668 A.2d
        536 (Pa. Super. 1995) (stating combination of PSI and
        standard range sentence, absent more, cannot be
        considered excessive or unreasonable).

Griffin, 65 A.3d at 937-938 (quotations and most internal citations

omitted).

      As noted above, the trial court had the benefit of a PSI.       Thus, we

presume that the trial court was aware of Appellant’s character when

fashioning Appellant’s sentence. Moreover, at sentencing, counsel for

Appellant told the trial court that, in addition to the facts contained in the

PSI, Appellant was also seeking mental health treatment in prison for

depression and PTSD. N.T., 8/14/2015, at 7-8.        Thus, the trial court was

aware of all of the mitigating circumstances in this case before sentencing

Appellant to standard range sentences.

      Finally, the trial court stated its reasons for the sentence on the record

prior to imposing it. The trial court expressly stated it considered Appellant’s

age, personal circumstances (i.e., parental and employment status), and

acceptance of responsibility in pleading, as well as his mental health and


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abuse of alcohol. Id. at 15-16. The trial court also stated, however, that it

could not “ignore the fact that [the instant crimes occurred] in the wake of

an extensive and continuous prior criminal record from 2009” including

convictions for public drunkenness, underage drinking, disorderly conduct,

cruelty to animals, and two counts of indirect criminal contempt for

violations of a protection from abuse order. Id. at 16. Further, Appellant

committed the instant crimes while he was on parole for a felony conviction.

Id. The trial court considered a letter written by the victim and read in open

court.     Id. at 12.     In imposing sentence, the trial court stated “[t]he

amount of force and violence [Appellant] used against [the victim] is

incredible” and “just horrific.”    Id. at 17.   The trial court determined that

Appellant’s actions caused extensive physical and emotional damage to the

victim. Id.

         In sum, the trial court carefully considered all of the information before

imposing Appellant’s sentence.       We discern no abuse of discretion and do

not consider Appellant’s sentences to be excessive or unreasonable.

Accordingly, Appellant’s sole issue fails.

         Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/29/2016




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