J-S31044-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

BENJAMIN J. BRITFORD

                         Appellant                    No. 2021 MDA 2014


        Appeal from the Judgment of Sentence of October 28, 2014
            In the Court of Common Pleas of Lycoming County
            Criminal Division at No.: CP-41-CR-0000280-2013


BEFORE: BENDER, P.J.E., ALLEN, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                                FILED JUNE 05, 2015

      Benjamin J. Britford appeals his October 28, 2014 judgment of

sentence. We affirm.

      The following factual history is derived from the Commonwealth and

Britford’s recitation of the facts at Britford’s guilty plea hearing. On February

1, 2013, a confidential informant (“CI”) set up a meeting with Britford to

purchase heroin.    Britford did not attend the meeting, but another person

appeared and sold 0.28 grams of heroin to the CI. On February 7, 2013, the

CI set up another meeting with Britford. That time, Britford arrived and sold

the CIfifteen bags of heroin, totaling 1.2 grams, to the CI. After Britford was

arrested, police found a gun in Britford’s car.      Police obtained a search

warrant and searched Britford’s residence. They recovered three additional
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guns, including a stolen gun, and three more bundles of heroin, totaling 1.3

grams.

      The    sentencing   court    provided   the   following   summary   of   the

procedural history of this case:

      On January 8, 2014, [Britford] plead[ed] no contest to Count 1,
      criminal conspiracy (to deliver heroin), an ungraded felony, and
      Count 2, criminal use of a communications facility (to arrange
      the sale of heroin), a felony of the third degree. [Britford]
      plead[ed] guilty to Count 3, delivery of a controlled substance
      (heroin weighing between one gram to less than five grams), a
      felony, Count 4, possession with intent to deliver (with a firearm
      within reach or in close proximity at the time of the offense), an
      ungraded felony, Count 5, criminal use of a communication
      facility (to arrange the sale of heroin), a felony of the third
      degree, Count 6, receiving stolen property, a felony of the
      second degree, and Count[] 7, possession with intent to deliver
      (with a firearm in close proximity to the controlled substance),
      an ungraded felony.2 . . .
         2
           18 Pa.C.S.A. § 903(a)(1); 18 Pa.C.S.A. § 7512; 35 P.S.
         § 780-113(a)(30); 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A.
         § 7512; 18 Pa.C.S.A. § 3925(a); 35 P.S. § 780-
         113(a)(30). On January 7, 2014, the Information filed
         against [Britford] was amended to add the following
         language: For Count 3- TO WIT: in the course of
         committing this offense, the defendant possessed a
         quantity of heroin weighing between one (1) gram to less
         than five (5) grams. For Count 4- TO WIT: At the time of
         the offense a firearm was with the Defendant’s reach or in
         close proximity to the controlled substance. For Count 7-
         TO WIT: At the time of the offense a firearm was in close
         proximity to the controlled substance.

      On October 28, 2014, [the court] sentenced [Britford] within the
      standard range of the recommended guidelines. [The sentencing
      court] note[d] that the sentences on the criminal conspiracy
      counts run concurrent to the related counts.       In addition,
      [Britford] was made RRRI eligible, making him eligible for a
      lesser minimum sentence.



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Sentencing Court Opinion (“S.C.O.”), 1/20/2015, at 1-2 (citations modified).

      Britford   was   sentenced   to    twelve    to   twenty-four   months   of

incarceration on each of Counts 1 and 3; six to twelve months of

incarceration on each of Counts 2 and 5; and sixteen to thirty-two months of

incarceration on each of Counts 6 and 7.          The court found that Count 4

merged for sentencing purposes. Additionally, the court found that Britford’s

minimum sentence due to RRRI eligibility was reduced to nine months for

Counts 1 and 3, and to twelve months for Counts 6 and 7. Counts 1, 3, 6,

and 7 were ordered to run consecutively to each other. Counts 2 and 5 were

ordered to run concurrently. The aggregate sentence, without consideration

of RRRI, was fifty-six to 112 months’ incarceration.

      On November 14, 2014, Britford filed a post-sentence motion, in which

he alleged that his sentence was excessive and that the court did not

consider certain factors.   On November 18, 2014, the sentencing court

denied the motion.

      On November 24, 2014, Britford filed a notice of appeal. On the same

day, the sentencing court ordered Britford to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).            Britford

timely complied. On January 20, 2015, the sentencing court filed an opinion

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

      Britford raises one issue on appeal:

      Did the trial court abuse its discretion when imposing a minimum
      sentence of 56 months, a sentence within the standard range of
      the sentencing guidelines, where [Britford’s] conduct was less

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      than egregious, he served a significant period of incarceration
      prior to sentencing, he had no prior criminal record, and his pre-
      sentence investigation indicated the likelihood of re-offense is
      minimal?

Britford’s Brief at 4.

      Britford’s   challenge   implicates   the   discretionary   aspects    of   his

sentence. Our standard of review for a such challenge 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. Hoch, 936 A.2d 515, 517–18 (Pa. Super.
      2007) (citation omitted).

      The right to appellate review of the discretionary aspects of a
      sentence is not absolute, and must be considered a petition for
      permission to appeal. See Hoch, 936 A.2d at 518 (citation
      omitted). An appellant must satisfy a four-part test to invoke
      this Court’s jurisdiction when challenging the discretionary
      aspects of a sentence.

         [W]e conduct a four-part analysis to determine: (1)
         whether appellant has filed a timely notice of appeal; (2)
         whether the issue was properly preserved at sentencing or
         in a motion to reconsider and modify sentence; (3)
         whether appellant’s brief has a fatal defect; and (4)
         whether there is a substantial question that the sentence
         appealed from is not appropriate under the Sentencing
         Code.

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




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Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265-66 (Pa. Super. 2014)

(citations modified).

       Here, Britford filed a timely notice of appeal.      However, his post-

sentence motion was filed untimely.         A defendant has ten days after the

imposition of sentence to file a post-sentence motion.              Pa.R.Crim.P.

720(A)(1).   Britford’s sentence was imposed on October 28, 2014.         To be

timely, any post-sentence motion would have to be filed no later than

November 7, 2014.       Britford’s post-sentence motion was not filed until

November 14, 2014.

       Generally, an untimely post-sentence motion does not preserve any

issues for appellate review. “The failure to [file the motion within ten days]

waives any complaint concerning sentence that does not involve the

lawfulness of the sentence itself.” Commonwealth v. Magnum, 654 A.2d

1146, 1148 (Pa. Super. 1995); see Commonwealth v. Feucht, 955 A.2d

377,   383   (Pa.   Super.   2008)   (“To    preserve   issues   concerning   the

discretionary aspects of sentencing, a defendant must raise them . . . in a

timely post-sentence motion.”).

       However, when the sentencing court considers the merits of the issue

raised in the untimely post-sentence motion, we have reviewed the the issue

on the merits.      Commonwealth v. Ramin, 568 A.2d 1329, 1331 (Ps.

Super. 1990) (“Because the trial court considered Appellant's issue on its

merits, we will not deem the issue waived.”); see Kurtas v. Kurtas, 555

A.2d 804, 806 (Pa. 1989) (plurality) (“In this instance, the trial court chose

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to ignore the untimely filing of the appellant’s post-trial motions and

addressed the merits of her alleged errors. . . . [T]he Superior Court erred

in not reviewing the merits of the appeal.”); Commonwealth v. Campbell,

625 A.2d 1215, 1217 (Pa. Super. 1993); Commonwealth v. Markovitch,

565 A.2d 468, 470 (Pa. Super. 1989).       Here, although the post-sentence

motion was untimely, the sentencing court considered its merits in denying

the motion on November 18, 2014 and addressed the motion on its merits in

its Rule 1925(a) opinion.    See T.C.O. at 2 n.3.       Additionally, although

Britford’s post-sentence motion was untimely, the notice of appeal was not

untimely. Because the sentencing court addressed the merits, we will not

find Britford’s issue to be waived because of his untimely post-sentence

motion.

      Britford has included a statement of reasons for allowance of appeal as

is required by Pa.R.A.P. 2119(f). Britford’s Brief at 7-8. Therefore, we must

determine whether Britford has raised a substantial question.

      A substantial question will be found where an appellant advances
      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 which underlie the
      sentencing process. At a minimum, the Rule 2119(f) statement
      must articulate what particular provision of the code is violated,
      what fundamental norms the sentence violates, and the manner
      in which it violates that norm.

Commonwealth v. Mastromarino, 2 A.3d 581, 585-86 (Pa. Super. 2010)

(citation omitted).




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      In his Rule 2119(f) statement, Britford concedes that his sentence is

within the standard guideline range.       However, he contends that his

sentence is excessive and too severe in relation to his conduct and “other

sentencing factors.”   Britford’s Brief at 7.   Although not stated as such,

Britford also argues that the sentencing court failed to consider certain

mitigating factors, such as his compliance with supervised bail, his

employment, his community involvement, and his low risk of recidivism, in

crafting the sentence. Id. at 7-8.

      A bald allegation of excessiveness does not raise a substantial

question. Commonwealth v. Titus, 816 A.2d 251, 256 (Pa. Super. 2003).

Similarly, a claim that the sentencing court failed to consider mitigating

factors does not raise a substantial question.     Moury, 992 A.2d at 175.

However, and appellant raises a substantial question when an appellant

jointly claims that a sentencing court imposed an excessive sentence and

failed to consider substantial mitigating factors. Commonwealth v. Perry,

883 A.2d 599, 602 (Pa. Super. 2005).        Therefore, Britford has raised a

substantial question, and we proceed to the merits of his claim.

      Britford argues that his sentence was excessive because he should

have been sentenced at the lower range of the guidelines given the low risk

he posed to the public. Britford’s Brief at 10-11. Britford points to the fact

that he was on intensive supervised bail and was stepped down to

supervised bail given his compliance with the program. Id. at 11. Britford

also notes his involvement in the community and his work with troubled

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youth.   Id. at 11-12.       Britford was working at two jobs when he was

sentenced. Id. at 12-13. Britford also had no prior criminal record and was

cooperative upon his arrest.      Id. at 13.   For all these reasons, Britford

maintains that the sentence was excessive and the court did not consider

these factors.

         In determining whether a sentence is manifestly excessive,
         the appellate court must give great weight to the
         sentencing court’s discretion, as he or she is in the best
         position to measure factors such as the nature of the
         crime, the defendant’s character, and the defendant’s
         display of remorse, defiance, or indifference.

      Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super.
      2003), citing Commonwealth v. Ellis, 700 A.2d 948, 958 (Pa.
      Super. 1997).

Perry, 883 A.2d at 603 (citations modified).

      Here, the sentencing court had the benefit of a pre-sentence

investigation report.    When the sentencing court has that report, we may

presume that the court was aware of “relevant information regarding the

defendant’s character” and that the court weighed those considerations.

Commonwealth v. Rhoades, 8 A.3d 912, 919 (Pa. Super. 2010).                 The

sentencing court also explicitly referred to the report in its sentencing order.

Order, 10/28/2014, at 3 (unnumbered).          The court noted that the case

involved more than one incident of drug sales, the presence of firearms at

the scene, and the danger that drugs and guns pose. The court found that

the sentence imposed was necessary in order to deter Britford from further

crime.   Id.     The court also noted Britford’s post-arrest efforts to change.


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Notes of Testimony (“N.T.”), 10/28/2014, at 20. The court considered that

the offense gravity scores for Britford’s crimes were between five and eight.

S.C.O. at 4-5.    From this record, it is clear that the sentencing court

considered the mitigating factors and the severity of Britford’s crimes in

crafting his sentence.    In light of the record and the sentencing court’s

rationale, Britford’s sentence is not so excessive as to constitute an abuse of

discretion by the sentencing court.    Therefore, we affirm the judgment of

sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/2015




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