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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DOUGLAS MAURICE BROCKINGTON

                            Appellant                No. 2306 EDA 2015


             Appeal from the Judgment of Sentence June 11, 2015
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0002227-2015


BEFORE: OTT, J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                                 FILED MAY 12, 2016

        Douglas Maurice Brockington appeals from the judgment of sentence

imposed June 11, 2015, in the Bucks County Court of Common Pleas.

Brockington was sentenced to an aggregate term of 33 to 84 months’

imprisonment, following his guilty plea to charges of terroristic threats and

simple assault.1        On appeal, Brockington challenges the discretionary

aspects of his sentence. For the reasons below, we affirm.

        The facts underlying Brockington’s guilty plea were summarized at the

plea hearing as follows:

        The victim in this case, who is present in the courtroom, is Ms.
        Tammi Bresnen. She resides … in Morrisville, Pennsylvania.
        [Brockington] is her fiancé and was at the time, on the date of
        this offense.
____________________________________________


1
    18 Pa.C.S. §§ 2706(a)(1) and 2701(a)(1), respectively.
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             On March 21, 2015, while she was at home with
       [Brockington], they got into an argument, at which point
       [Brockington] – this occurred at two different times throughout
       the day, Your Honor, once in the morning and then again when
       Ms. Bresnen returned home from work.

             During those two separate – that continuous argument,
       depending on how you want to look at it, [Brockington]
       assaulted her in the following ways: He threw a remote control
       at her hands, which caused an injury to her left hand and that it
       caused swelling and bruising. He punched her multiple times in
       the head and pushed her head into a wall, causing a hole in the
       wall. He punched her multiple times in the abdomen. He
       threatened to cut her with a knife. He grabbed a golf club at one
       point and threatened her.

             He told her that if she went to the police he would hurt her
       or have someone else hurt her for him.

N.T., 6/11/2015, at 9-10.

       Brockington was subsequently charged with two counts of terroristic

threats, and one count each of simple assault, harassment, and possessing

an instrument of crime.2 As noted above, on June 11, 2015, he entered a

guilty plea to one count each of terroristic threats and simple assault, in

exchange for which the Commonwealth withdrew the remaining charges.3

The trial court proceeded to sentence Brockington that same day to a term
____________________________________________


2
   See 18 Pa.C.S.          §§    2706(a)(1),     2701,   2709(a)(1),   and   907(a),
respectively.
3
  During the guilty plea/sentencing hearing, the prosecutor also stated that
“[as] a result of [Brockington] pleading open today, the Commonwealth has
agreed not to pursue intimidation, hindering, and charges of obstructing
governmental administration.” N.T., 6/11/2015, at 32. Although the record
does not identify the facts supporting these proposed charges, we presume
they were based upon Brockington’s harassment of the victim while he was
incarcerated. See infra.



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of 12 to 24 months’ imprisonment for simple assault, and a consecutive term

of 21 to 60 months’ imprisonment for terroristic threats.               The sentence

imposed for terroristic threats was in the aggravated range of the sentencing

guidelines.

       On June 19, 2015, Brockington filed a timely post-sentence motion

seeking reconsideration of his sentence. The trial court denied Brockington’s

motion, and this timely appeal followed.4

       On appeal, Brockington raises two challenges to the discretionary

aspects of his sentence.          First, he contends the trial court abused its

discretion when it failed to properly consider mitigating circumstances – in

particular    the   testimony     of    the    victim   and   Brockington’s   voluntary

participation in several rehabilitation programs - before imposing an

aggravated range sentence for his conviction of terroristic threats.               See

Brockington’s Brief at 15-16.          Second, Brockington argues the trial court’s

decision to run his sentences consecutively led to a manifestly excessive

sentence in light of the nature of the offense, the impact on the victim, the

protection of the public, and his own rehabilitative needs. See id.




____________________________________________


4
  The trial court ordered Brockington to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).           Brockington
complied with the court’s directive, and filed a concise statement on August
17, 2015.




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     “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa.

Super. 2007) (citation omitted).    To reach the merits of a discretionary

issue, this Court must determine:

     (1) whether the appeal is timely; (2) whether Appellant
     preserved his issue; (3) whether Appellant’s brief includes a
     concise statement of the reasons relied upon for allowance of
     appeal with respect to the discretionary aspects of sentence; and
     (4) whether the concise statement raises a substantial question
     that the sentence is appropriate under the sentencing code.

Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)

(citation omitted), appeal denied, 81 A.3d 75 (Pa. 2013).

     Brockington complied with the procedural requirements for this appeal

by filing a timely post-sentence motion for modification of sentence, and

subsequent notice of appeal, and by including in his appellate brief a

statement of reasons relied upon for appeal pursuant to Commonwealth v.

Tuladziecki, 522 A.2d 17 (Pa. 1987), and Pa.R.A.P. 2119(f). Therefore, we

must determine whether Brockington raised a substantial question justifying

our review.

     A substantial question exists when an appellant sets forth “a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)

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(citation omitted).    “[A]n allegation that the sentencing court failed to

consider mitigating factors generally does not raise a substantial question for

our review.”     Commonwealth v. Rhoades, 8 A.3d 912, 918-919 (Pa.

Super. 2010), appeal denied, 25 A.3d 328 (Pa. 2011), cert. denied, 132

S.Ct. 1746 (U.S. 2012).         However, an “excessive sentence claim[ ] in

conjunction with an assertion that the court did not consider mitigating

factors[,]”    does   present    a   substantial   question   for   our   review.

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015),

appeal denied, 125 A.3d 1198 (Pa. 2015), quoting Commonwealth v.

Dodge, 77 A.3d 1263, 1272 (Pa. Super. 2013) (en banc), appeal denied, 91

A.3d 161 (Pa. 2014).      Moreover, a claim that the trial court imposed an

aggravated range sentence without placing adequate reasons on the record,

also raises a substantial question. Commonwealth v. Bromley, 862 A.2d

598, 604 (Pa. Super. 2004), appeal denied, 881 A.2d 818 (Pa. 2005), cert.

denied, 546 U.S. 1095 (2006). See also 204 Pa.Code § 303.13(c) (“When

the court imposes an aggravated or mitigated sentence, it shall state the

reasons on the record and on the Guideline Sentence Form, a copy of which

is electronically transmitted to the Commission on Sentencing in the manner

described in § 303.1(e).”).

      Finally, while a challenge to the imposition of consecutive versus

concurrent sentences generally does not raise a substantial question, such a

claim may be addressed when the defendant alleges the “aggregate


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sentence is unduly     harsh, considering the nature of the crimes and the

length of imprisonment.” Commonwealth v. Moury, 992 A.2d 162, 171-

172 (Pa. Super. 2010).      Therefore, because we find Brockington’s claims

nominally raise a substantial question, we proceed to an examination of his

arguments on appeal.

      When    considering   a   challenge   to   the   discretionary   aspects   of

sentencing we must bear in mind the following:

      Sentencing is a matter vested in the sound discretion of the
      judge, and will not be disturbed on appeal absent a manifest
      abuse of discretion. 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. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation

omitted), appeal denied, 980 A.2d 607 (Pa. 2009).

      In its opinion, the trial court explained it specifically considered the

mitigating factors Brockington cites, particularly, Brockington’s testimony at

the sentencing hearing regarding his voluntary participation in prison

programs, the death of his son, his recent disability, and his remorse, as

well as the victim’s testimony supporting him.         See Trial Court Opinion,

10/19/2015, at 4-5.      However, the court also considered the fact that

Brockington had three prior simple assault convictions in Pennsylvania, and




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three prior domestic assault convictions in Vermont.5 Id. at 5.       In addition,

at the time of the current offense, he was on probation for a charge of

unauthorized use of a vehicle involving the same victim. Id. Nonetheless,

the most damning evidence contradicting Brockington’s expressions of

remorse, and the victim’s favorable comments, was the content of recorded

calls Brockington made to the victim while incarcerated, and despite being

subject to a non-contact order.                The attorney for the Commonwealth

summarized the content of those telephone calls as follows:

       [T]here have been upwards of 300 phone calls made by
       [Brockington], using his and other inmates’ accounts to this
       victim. Myself and an intern in my office have listened to as
       many of these as we can over the last several weeks.

             [Brockington] has never until today expressed any amount
       of apology or sorrow or sympathy for Ms. Bresnen over what he
       did. Instead the content of these phone calls have been largely
       about that if she loved him she would come in and say she lied;
       that she shouldn’t talk to the police about him; that she is
       worthless for having opened her mouth; that she is the reason
       he is where he is; that she shouldn’t have gone to the hospital,
       she made too big of a deal out of it.

             And in discussing the event itself, he says that what he
       remembers about it is that she wouldn’t – and I believe this is a
       direct quote – leave him the fuck alone when he told her to.

             He has controlled her throughout this process since the
       time of the preliminary hearing.       He controls who she’s
       permitted to speak with, who she’s not allowed to talk to,
       including counselors at Women’s Place and Nova.
____________________________________________


5
 The domestic assault convictions in Vermont involved a different victim.
See N.T., 6/11/2015, at 16.




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             He has yelled at her for going to the gym when he told her
       to come home. He has called her 19 times in a row when she
       doesn’t answer right away. And I know because I was present
       during one of those meetings where she came in to speak with
       us and during that time he called her 19 times. And she
       wouldn’t answer because she was speaking to me. She has
       gone back and relayed everything that we talked about despite
       knowing that I was aware of these phone calls.

            He has done everything in his power to manipulate this
       process so that we – she would come on the stand, either not
       show up at all or come on that stand on a trial and lie for him. …

N.T., 6/11/2015, at 26-28.6         Therefore, the trial court was well within its

discretion in discounting the victim’s supportive testimony at the sentencing

hearing.     Moreover, the court also explained that given Brockington’s

“multiple opportunities to avail himself of resources to address his

underlying issues, including a three to five year period of incarceration in a

Vermont state correctional facility for domestic assault, … it was appropriate

for the Court to give minimal value to [Brockington’s] recent participation

and completion of such programs.” Trial Court Opinion, 10/16/2015, at 9-

10. Accordingly, we find no abuse of discretion on the part of the trial court

in imposing an aggravated range sentence on Brockington’s conviction of

terroristic threats.

       Similarly, we conclude Brockington’s assertion that the trial court

abused its discretion in imposing his sentences to run consecutively fails.

____________________________________________


6
   Neither Brockington nor his attorney dispute the Commonwealth’s
allegations regarding the number or content of these phone calls.




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Indeed, considering his prior record – which included numerous assault

convictions - his post-arrest harassment of the victim, and his failure to avail

himself of rehabilitative programs in the past, we do not agree with his

contention that the aggregate sentence imposed by the trial court was

excessive. Accordingly, we find Brockington is entitled to no relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/12/2016




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