J. S27022/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                                            :
                    v.                      :
                                            :
ANTHONY DWAYNE MIXON-LOVE,                  :
                                            :
                          Appellant         :     No. 1639 MDA 2015

              Appeal from the Judgment of Sentence June 25, 2015
               In the Court of Common Pleas of Lycoming County
                Criminal Division No.: CP-41-CR-0001871-2014


BEFORE: SHOGAN, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.:                                FILED JUNE 07, 2016

        Appellant, Anthony Dwayne Mixon-Love, appeals from the Judgment of

Sentence entered in the Lycoming County Court of Common Pleas after he

entered an open guilty plea to Robbery and several related offenses.

Appellant contends that the trial court, by sentencing him to an aggregate

term of 12 to 35 years’ imprisonment, imposed a manifestly excessive

sentence and abused its discretion by failing to consider several mitigating

factors. We affirm.

        The trial court recited the following underlying facts to which Appellant

pleaded guilty:



*
    Former Justice specially assigned to the Superior Court.
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            [O]n May 17th of 2014, close to 2:00 in the morning the
     [Williamsport] city police responded to the UniMart at 1944 West
     Fourth Street for a reported armed robbery. The clerk indicated
     that she had been threatened [by a man] with a gun saying I
     want 20’s, that she would have then responded to that threat by
     giving the suspect the money from the drawer and observing
     that the suspect came behind the counter in an attempt to enter
     the safe, but then fled.

           Items were processed at the scene that indicated
     [Appellant] had touched them and that [Appellant was] arrested
     while [he was] housed in the county prison for another offense.

N.T. Sentencing, 6/25/15, at 5.

     The Commonwealth charged Appellant with Robbery, Possession of

Firearm Prohibited, Carrying a Firearm Without a License, Possession of a

Weapon (“POW”), Terroristic Threats, Simple Assault, Theft by Unlawful

Taking, and Receiving Stolen Property (“RSP”).1       On March 27, 2015,

Appellant entered an open guilty plea to all charges. On June 25, 2015, the

trial court imposed an aggregate term of 12 to 35 years’ imprisonment.2

Appellant filed a Motion to Reconsider the Sentence, which the trial court

denied on September 21, 2015.




1
  18 Pa.C.S. § 3701; 18 Pa.C.S. § 6105; 18 Pa.C.S. § 6106; 18 Pa.C.S. §
907(b); 18 Pa.C.S. § 2706; 18 Pa.C.S. § 2701; 18 Pa.C.S. § 3921; and 18
Pa.C.S. § 3925, respectively.
2
  The trial court imposed a term of 7 to 20 years’ imprisonment for the
Robbery conviction, a consecutive term of 4 to 10 years’ imprisonment for
the Possession of Firearm Prohibited conviction, and a consecutive term of 1
to 5 years’ imprisonment for the POW conviction. The trial court imposed all
other sentences concurrently, and the simple assault conviction merged.



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        Appellant filed a timely Notice of Appeal. Both Appellant and the trial

court complied with Pa.R.A.P. 1925.         Appellant presents one issue on

appeal:

        Did the trial court abuse its discretion when it imposed
        consecutive periods of incarceration for a manifestly excessive
        aggregate sentence of twelve (12) years to thirty-five (35) years
        when the Court failed to consider mitigating factors such as Mr.
        Mixon-Love’s acceptance of responsibility, his mental health
        needs, and rehabilitative needs?

Appellant’s Brief at 11.3

        Appellant challenges the discretionary aspect of his sentence. As we

have previously stated:

        Initially, we must determine whether [Appellant] has the right to
        seek permission to appeal the sentencing court’s exercise of its
        discretion.    Where a defendant pleads guilty without any
        agreement as to sentence, the defendant retains the right to
        petition this Court for allowance of appeal with respect to the
        discretionary aspects of sentencing.

Commonwealth v. Brown, 982 A.2d 1017, 1018-19 (Pa. Super. 2009)

(citation omitted). Instantly, there was no agreement as to sentencing, thus

Appellant has the right to seek permission to appeal. See id.

        “An appellant must satisfy a four-part test to invoke this Court’s

jurisdiction when challenging the discretionary aspects of a sentence,” by (1)

preserving the issue in the court below, (2) filing a timely Notice of Appeal,

(3) including a Rule 2119(f) statement, and (4) raising a substantial

question for our review. Commonwealth v. Tejada, 107 A.3d 788, 797-98

3
    The Commonwealth did not file a brief in this matter.



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(Pa. Super. 2015) (citation omitted); Commonwealth v. Austin, 66 A.3d

798, 808 (Pa. Super. 2013).

      Applying the four-part analysis to the instant case, we find that:

Appellant preserved his issue in his Post-Sentence Motion, Appellant timely

appealed, and Appellant substantially complied with Pa.R.A.P. 2119(f).4

Accordingly, we ascertain whether Appellant has presented a substantial

question.

      Appellant argues in his Pa.R.A.P. 2119(f) Statement “that the

aggregated consecutive sentence was grossly disproportionate to the crime

committed and that the court failed to properly consider his background and

need for mental health and rehabilitative treatment.” Appellant’s Brief at 16.

      In Commonwealth v. Dodge, 77 A.3d 1263 (Pa. Super. 2013), the

appellant   contended   the   imposition   of    consecutive   sentences   was

disproportionate to his crimes.   Id. at 1271.    This Court has “determined

that such an assertion, in combination with allegations that a sentencing

court did not consider the nature of the offenses or provide adequate

reasons for its sentence, presents a plausible argument that the length of

the sentence violates fundamental sentencing norms.” Id. at 1271-72.



4
  Pa.R.A.P. 2119(f) Statement “must specify where the sentence falls in
relation to the sentencing guidelines and what particular provision of the
Code is violated […] and what fundamental norm the sentence violates and
the manner in which it violates that norm[…].        Commonwealth v.
Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en banc).



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      We find that Appellant’s Rule 2119(f) statement presents a substantial

question.    See id.    Therefore, we will review the merits of Appellant’s

challenge to the discretionary aspects of his sentence.

      On appeal, Appellant briefly argues that the trial court’s consecutive

sentences    constituted     a   manifestly        excessive   aggregate    sentence.

Appellant’s Brief at 18.     Further, Appellant contends that the trial court

“failed to consider mitigating factors[,] such as [Appellant’s] acceptance of

responsibility, his mental health needs, and rehabilitative needs.”                Id.

Appellant also mentions several collateral consequences that he believes

demonstrate the excessiveness of his sentence, including that he will be

removed “from the community resources that aided in his rehabilitation” as

well as “a ten-year-gap on his resume[, which] will greatly reduce his ability

to obtain employment and become a more productive member of society.”

Id. at 19.    Appellant concludes by averring “that a ninety (90) month

sentence, with the rest of the charges run concurrent, would be the most

appropriate given the facts and circumstances.” Id.

      The “proper standard of review when considering whether to affirm the

sentencing    court’s      determination      is     an    abuse    of     discretion.”

Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007).                     An “abuse of

discretion is more than a mere error of judgment; thus a sentencing court

will not have abused its discretion unless ‘the record discloses that the

judgment exercised was manifestly unreasonable, or the result of partiality,



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prejudice, bias or ill-will.’”   Id. (quoting Commonwealth v. Smith, 673

A.2d 893, 895 (Pa. 1996)).         A trial court has the sound discretion to

determine a sentence since it is in the best position to consider the

defendant’s character, display of remorse, defiance, or indifference, and the

overall effect and nature of the crimes.     Commonwealth v. Begley, 780

A.2d 605, 643 (Pa. 2001).

      In sentencing a defendant, the sentencing court “shall follow the

general principle that the sentence imposed should call for confinement that

is consistent with the protection of the public, the gravity of the offense as it

relates to the impact on the life of the victim and on the community, and the

rehabilitative needs of the defendant.” 42 Pa.C.S. § 9721. The sentencing

court shall also consider any guidelines for sentencing adopted by the

Pennsylvania Commission on Sentencing.        Id.   To determine the standard

guideline sentence, the sentencing court calculates the Offense Gravity

Score and Defendant’s Prior Record Score; it then considers any aggravating

or mitigating factors. 204 Pa.Code § 303.2(a).

      The trial court imposed a standard guideline range sentence on each of

Appellant’s convictions, which Appellant concedes. Trial Court Opinion, filed

9/21/15, at 3; Appellant’s Brief at 13. A review of the sentencing hearing

transcript reveals the trial court adequately stated on the record the reasons

for the sentences, and described in detail that it considered the sentencing

guidelines and the pre-sentence investigation report; Appellant’s age,



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background, work history, criminal history, and his particular rehabilitative

needs; the nature, circumstances, and seriousness of the offenses; and the

protection of the community.        N.T. Sentencing, 6/25/15, at 2-15, 29-31;

Trial Court Opinion, filed 9/21/15, at 3.

      Specifically, the trial court took into consideration, inter alia, that

Appellant pled guilty to all charges without a negotiated sentence, and that

Appellant accepted responsibility for his actions. N.T. Sentencing, 6/25/15,

at 2, 31.    The trial court extensively reviewed Appellant’s mental health

history and rehabilitative needs. Id. at 7, 10-15. The trial court also noted,

inter alia, Appellant’s “poor response to supervision, [Appellant]’s poor

adjustment    to   incarceration,   and   the   Court’s   belief that   [Appellant]

minimized accountability.”     Trial Court Opinion, filed 9/21/15, at 3.        Of

particular note, the trial court reviewed copies of inmate incident reports

indicating that Appellant threw “urine and feces on another inmate in the

county prison” just two weeks prior to his sentencing hearing.                N.T.

Sentencing, 6/25/15, at 4, 21-22.

      Regarding Appellant’s argument that the sentence was excessive due

to the consecutive sentences imposed, the trial court stated, “each crime

that has a consecutive sentence protects an interest different from the crime

to which it is consecutive.” Trial Court Opinion, filed 9/21/15, at 3.

      In light of the foregoing, we conclude the trial court did not abuse its

discretion in imposing several consecutive sentences that resulted in an



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aggregate term of 12 to 35 years’ incarceration. See Austin, supra at 809-

10 (holding that trial court did not abuse its discretion in imposing

consecutive sentences, resulting in lengthy aggregate sentence, given the

trial court reviewed and considered, inter alia, the pre-sentence investigation

report, sentencing guidelines, and fully and adequately set forth reasons for

its sentence).

      Judgment of Sentence affirmed. Jurisdiction relinquished.

      Judge Shogan joins this Memorandum.

      President Judge Emeritus Stevens concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/7/2016




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