J-S40037-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
 KIMBERLY JUNE BOLTON                     :
                                          :
                     Appellant            :   No. 205 WDA 2019

       Appeal from the Judgment of Sentence Entered October 1, 2018
   In the Court of Common Pleas of Somerset County Criminal Division at
                     No(s): CP-56-CR-0000344-2017,
                          CP-56-CR-0000377-2017


BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                      FILED AUGUST 08, 2019

        Kimberly June Bolton (Bolton) appeals from the judgment of sentence

imposed in the Court of Common Pleas of Somerset County (trial court) after

her conviction of Recklessly Endangering Another Person (REAP), 18 Pa.C.S.

§ 2705, and Possession with Intent to Deliver a Controlled Substance (PWID),

35 P.S. § 780-113(a)(30). We affirm.

        On April 16, 2018, Bolton pleaded guilty to PWID at docket number 377-

2017.    The charge arose from a controlled buy set up with a confidential

informant. She pleaded guilty to REAP at docket number 344-2017 for her

role in the distribution of heroin laced with fentanyl that resulted in the

overdose death of the victim. On October 1, 2018, the trial court sentenced

Bolton to an aggregate term of not less than sixteen nor more than forty-eight

months’ incarceration.    Bolton filed post-sentence motions challenging the
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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discretionary aspects of her sentence on the bases that she had significant

medical problems, she was sentenced at the high end of the standard range

in spite of her light criminal record, and that she pleaded guilty to REAP as a

misdemeanor. The court denied Bolton’s post-sentence motions and Bolton

timely appealed.1 Bolton complied with Rule 1925(b). See Pa.R.A.P. 1925.

       On appeal, Bolton maintains that the trial court abused its discretion

when it failed to consider mitigating factors and sentenced her at the high end

of the standard range. (See Bolton’s Brief, at 10-11).

       Preliminarily, it is well-settled that review of this issue is not of right.

“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.”

Commonwealth v. Conte, 198 A.3d 1169, 1173 (Pa. Super. 2018) (citation

omitted).

       [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, see
____________________________________________


1 On April 17, 2019, we issued an order directing Bolton to show cause why
her appeal should not be quashed pursuant to Commonwealth v. Walker,
185 A.3d 969 (Pa. 2018), because her notice of appeal contained both docket
numbers. See Walker, supra at 971 (Holding that “where a single order
resolves issues arising on more than one docket, separate notices of appeal
must be filed for each case.”). However, as explained by Bolton, although the
notice of appeal contains both docket numbers, she filed it in both cases, and
the portions of the docket attached to her response confirm this. (Response
to Show Cause, 4/29/19, at 2 ¶ 12, 3 ¶ 13-14; see also id. at Exhibit A, 2-
3; Bolton’s Brief, at 9-10). Therefore, Bolton complied with Walker’s
mandate.


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       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. Barnes, 167 A.3d 110, 122 (Pa. Super. 2017) (quoting

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

part of this test, regarding Pa.R.A.P. 2119, requires that the appellant “set

forth in a separate section of the brief a concise statement of the reasons

relied upon for allowance of appeal with respect to the discretionary aspects

of a sentence.” Pa.R.A.P. 2119(f).

       Here, Bolton has included a Rule 2119(f) statement in her brief.      It

alleges that the court abused its discretion by sentencing her at the high end

of the standard range and by failing to consider mitigating factors such as her

medical history, her minor criminal record, and the fact that, although the

victim died, Bolton only pleaded guilty to a misdemeanor REAP. (See Bolton’s

Brief, at 8-9).     This claim raises a substantial question, although it lacks

merit.2 See Commonwealth v. Hill, ___ A.3d ___, 2019 WL 2204340, at

*9 (Pa. Super. filed May 22, 2019) (finding appellant’s claim of failure to

consider mitigating factors combined with claim of excessive sentence raises

substantial question).



____________________________________________


2 “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.” Commonwealth v. Edwards, 194 A.3d 625, 637 (Pa. Super.
2018) (citation omitted).

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       The record reveals that the court considered the victim impact

statements of the victim’s daughter, aunt and mother. (See N.T. Sentencing,

10/01/18, at 4-16). It heard the argument of counsel about Bolton’s ongoing

medical issues and prior record of misdemeanor offenses. (See id. at 16-17).

Bolton also made a statement to the court on her own behalf. (See id. at 17-

19).

       Importantly, the trial court had the benefit of a presentence

investigation report (PSI) and explained that it was imposing its sentence, in

part, based on the information contained therein.      (See N.T. Sentencing,

10/01/18, at 21). “Our Supreme Court has determined that where the trial

court is informed by a [PSI], it is presumed that the court is aware of all

appropriate sentencing factors and considerations, and that where the court

has been so informed, its discretion should not be disturbed.”      Edwards,

supra at 637-38 (citation omitted). “The sentencing judge can satisfy the

requirement that reasons for imposing sentence be placed on the record by

indicating that he or she has been informed by the [PSI]; thus properly

considering and weighing all relevant factors.” Id. (citation omitted).

       Before announcing Bolton’s sentence, the court explained that it was

imposing it based on the information contained in the PSI, the comments of

defense counsel and the statements of Bolton and of various family members

of the victim. (See N.T. Sentencing, at 20). The court also stated:

            The reasons for the sentence are as follows: The sentence
       ends at the highest end of the standard range of the Sentencing

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     Guidelines; [Bolton] was part of the causal chain that led to the
     overdose death of [the victim] and under the circumstances
     presented here, we believe any lesser sentence would depreciate
     the seriousness of these offenses.

(N.T. Sentencing, at 21).

     Based on the foregoing, we discern no manifest abuse of discretion by

the trial court. See Edwards, supra at 637. Therefore, Bolton’s issue lacks

merit and we affirm her judgment of sentence.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/8/2019




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