J-S11039-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    CLIFTON LEE GRAHAM                         :
                                               :
                      Appellant                :   No. 1265 WDA 2016

              Appeal from the Judgment of Sentence July 25, 2016
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0003363-2015


BEFORE:      OLSON, RANSOM, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                       FILED FEBRUARY 27, 2017

        Appellant Clifton Lee Graham appeals the judgment of sentence

entered by the Court of Common Pleas of Erie County. Appellant challenges

the lower court’s discretion in imposing his sentence. We affirm.

        In November 2014, Appellant was charged with numerous offenses

related to his delivery of heroin and use of a cell phone to further his

delivery. On May 2, 2016, Appellant pled guilty to Delivery of a Controlled

Substance1 and Criminal Use of a Communication Facility2 and the

Commonwealth nolle prossed the remaining charges.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
2
    18 Pa.C.S. § 7512(a).
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      Appellant’s sentencing hearing was scheduled for July 25, 2016 at

8:45 a.m.    Defense counsel informed the sentencing court that Appellant

was aware of the time and date of the hearing. The sentencing court waited

for Appellant to arrive until 9:15 a.m. before proceeding to sentence

Appellant in absentia to two consecutive sentences of fifteen to thirty

months incarceration. Both sentences fell within the standard range of the

sentencing guidelines.   When Appellant arrived at the courthouse at 9:45

a.m., the Sheriff’s Office took Appellant into custody.        That same day,

Appellant filed a post-sentence motion, which the trial court denied.

Appellant filed a timely appeal and complied with the lower court’s order to

file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b).

      Appellant’s sole claim on an appeal is his contention that the

sentencing court abused its discretion in imposing an unduly harsh sentence

by improperly considering Appellant’s absence from the hearing. It is well-

established that “[a] challenge to the discretionary aspects of sentencing

does not entitle an appellant to review as of right.”      Commonwealth v.

Bynum-Hamilton, 135 A.3d 179, 184 (Pa.Super. 2016). In order to invoke

this Court’s jurisdiction to address such a challenge, the appellant must

satisfy the following four-part test: the appellant must (1) file a timely notice

of appeal pursuant to Pa.R.A.P. 902, 903; (2) preserve the issues at

sentencing or in a timely post-sentence motion pursuant to Pa.R.Crim.P.

720; (3) ensure that the appellant’s brief does not have a fatal defect as set

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forth in Pa.R.A.P. 2119(f); and (4) set forth a substantial question that the

sentence appealed from is not appropriate under the Sentencing Code under

42 Pa.C.S. § 9781(b).     Id.    Appellant has filed a timely notice of appeal,

preserved his sentencing claim before the trial court, and submitted a Rule

2119(f) statement in his appellate brief.

      We may now determine whether Appellant has raised a substantial

question for our review.         “The determination of what constitutes a

substantial   question   must    be   evaluated   on   a   case-by-case   basis.”

Commonwealth v. Caldwell, 117 A.3d 763, 768, (Pa.Super. 2015). This

Court has provided as follows:

      A substantial question exists only when the appellant advances a
      colorable argument that the sentencing judge's actions were
      either: (1) inconsistent with a specific provision of the
      Sentencing Code; or (2) contrary to the fundamental norms
      which underlie the sentencing process.

      When imposing a sentence, the sentencing court must consider
      the factors set out in 42 Pa.C.S. § 9721(b), that is, the
      protection of the public, gravity of offense in relation to impact
      on victim and community, and rehabilitative needs of the
      defendant. And, of course, the court must consider the
      sentencing guidelines.

Id. (internal citations omitted).     This Court has held that a claim that a

sentencing court abused its discretion by relying on “impermissible factors”

raises a substantial question. Commonwealth v. Shugars, 895 A.2d 1270,

1274 (Pa.Super. 2006).

      In reviewing this claim, we emphasize the broad discretion given to

sentencing courts. “[W]hen reviewing sentencing matters, we must accord


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the sentencing court great weight as it is in the best position to view the

defendant's character, displays of remorse, defiance or indifference, and the

overall effect and nature of the crime.”      Commonwealth v. Sierra, 752

A.2d 910, 915 (Pa.Super. 2000). “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, prejudice, bias or ill-will.”

Commonwealth v. Allen, 24 A.3d 1058, 1065 (Pa.Super. 2011).

      The sentencing judge fully discussed its reasons for imposing its

sentence on the record, indicating that he had thoroughly reviewed

Appellant’s pre-sentence report and psychological evaluation and took into

consideration Appellant’s attempt to seek drug treatment.         This Court has

held that “where the sentencing court imposed a standard-range sentence

with the benefit of a pre-sentence report, we will not consider the sentence

excessive. In those circumstances, 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.”

Commonwealth v. Corley, 31 A.3d 293, 298 (Pa.Super. 2011) (citing

Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12, 18 (1988)).

      With respect to Appellant’s claim that the sentencing court improperly

considered Appellant’s failure to attend the sentencing hearing, the court

made a passing reference to Appellant’s absence in response to defense

counsel’s assertion that Appellant was committed to seeking drug treatment.

The sentencing court noted that, along with Appellant’s extensive prior

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record, Appellant’s failure to attend the sentencing hearing “undermined”

Appellant’s “amenability to treatment and/or supervision.” N.T. Sentencing,

7/25/16, at 7.   The sentencing court also indicated that he did not agree

with defense counsel’s request for a probationary sentence as Appellant’s

extensive criminal history did not demonstrate that he should have an

opportunity to stay in the community, where he was involved in selling

heroin to the public.     We find no abuse of discretion as the lower court

imposed a sentence consistent with the protection of the public, gravity of

the offense, and Appellant’s rehabilitative needs. See Caldwell, supra.

     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/2017




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