J-S59021-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                   Appellee                :
                                           :
            v.                             :
                                           :
CHRISTOPHER ALLEN TEVIS,                   :
                                           :
                   Appellant               :     No. 185 WDA 2015

         Appeal from the Judgment of Sentence December 16, 2014,
                    Court of Common Pleas, Blair County,
             Criminal Division at No. CP-07-CR-0000703-2012

BEFORE: BOWES, DONOHUE and FITZGERALD*, JJ.

MEMORANDUM BY DONOHUE, J.:                           FILED OCTOBER 06, 2015

      Appellant,   Christopher   Allen   Tevis    (“Tevis”),   appeals   from   the

judgment of sentence entered on December 16, 2014 by the Court of

Common Pleas of Blair County, Criminal Division, following remand from this

Court for resentencing. For the reasons that follow, we affirm.

      A prior panel of this Court summarized the facts and procedural history

of this case as follows:

               On August 23, 2011, D.S. and Tevis, her
            boyfriend at the time, argued about their relationship
            throughout the day. When D.S. attempted to leave
            Tevis’ apartment, Tevis stood in front of the
            doorway, blocking her from exiting.            Around
            midnight,    Tevis   demanded     to   have     sexual
            intercourse with D.S., a request that she refused.
            According to D.S., Tevis then grabbed her by the
            arms, punched her in the head, used a utility knife to
            cut her shirt below her breast, and held a large
            kitchen knife to her throat. Eventually[,] D.S. was
            able to escape Tevis’ residence. D.S. later called the



*Former Justice specially assigned to the Superior Court.
J-S59021-15


          police and was taken to the Altoona Hospital by an
          ambulance. At the hospital, D.S. accused Tevis of
          raping and assaulting her. On August 29, 2011, the
          Altoona Police arrested Tevis and charged him with
          aggravated assault, simple assault, rape—forcible
          compulsion, and unlawful restraint.1 At the time of
          his arrest, Tevis made several unsolicited statements
          to the police. Specifically, Tevis stated that D.S. had
          physically attacked him without provocation by
          punching him in the face multiple times.          Tevis
          further alleged that any injuries that D.S. suffered
          were the result of Tevis defending himself against
          D.S.

             Tevis was unable to post bail and remained
          lodged in the Blair County Prison.               While
          incarcerated, Tevis mailed a series of letters to D.S.
          [Based on these letters as well as phone calls he
          made to D.S., Tevis was charged with intimidation of
          witnesses or victims and harassment2 on February
          27, 2012. Those charges were filed and docketed at
          CP-07-CR-0000703-2012.]

                               *     *     *

             The trial court consolidated Tevis’ two cases for a
          jury trial, which commenced on July 30, 2012, and
          ended on August 1, 2012.

                               *     *     *

             On August 1, 2012, the jury acquitted Tevis of
          rape—forcible compulsion, aggravated assault, and
          unlawful restraint. The jury found Tevis guilty of
          simple assault and intimidation of witnesses or
          victims. On November 1, 2012, Tevis was sentenced
          at both docket numbers. The trial court sentenced
          Tevis to six to twelve months’ imprisonment for


          1
             18 Pa.C.S.A. §§         2702(a)(4),     2701(a)(1),
          3121(a)(2), 2902(a)(1).
          2
              18 Pa.C.S.A. §§ 4952(a)(2), 2709(a)(7).


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             simple assault, and sixty to one hundred twenty
             months’ imprisonment for intimidation of a witness.
             Imposed consecutively, Tevis’ sentences resulted in
             an aggregate term of five and one half to eleven
             years’ incarceration.

                 On November 1, 2012, Tevis timely filed a post-
             sentence motion seeking a new trial in both cases.
             On November 13, 2012, Tevis filed a supplemental
             post-sentence motion. Therein, Tevis argued, inter
             alia, that the sentence imposed for intimidation of a
             witness was “too harsh under the circumstances,”
             given that the jury acquitted Tevis of rape.
             Supplemental Post-Trial Motions, 11/13/2012, at 1
             (unnumbered).      On February 15, 2013, the trial
             court denied Tevis’ post-sentence motions without a
             hearing. On that same day, Tevis timely filed a
             notice of appeal.

Commonwealth v. Tevis, 403 WDA 2013 at 1-5 (Pa. Super. October 3,

2014) (unpublished memorandum).

      On October 3, 2014, a panel of this Court vacated Tevis’ simple assault

conviction and remanded the case for a new trial on that charge. See id. at

19-27, 29.    “Because the trial court imposed Tevis’ sentences for simple

assault and intimidation of witnesses or victims consecutively,” the panel

further determined that its “disposition has disturbed the court’s overall

sentencing scheme.”      Id. at 29.    Therefore, the panel vacated Tevis’

judgment of sentence in its entirety and remanded for resentencing on the

intimidation of witnesses or victims count after retrial on the simple assault

count. Id.




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      On remand, the Commonwealth chose not to retry Tevis on the simple

assault charge resulting in the dismissal of that charge.      See Trial Court

Order, 12/16/14, at 1.     On December 16, 2014, following a sentencing

hearing, the trial court resentenced Tevis to a term of five to ten years of

incarceration on the intimidation of witnesses or victims charge.            On

December 24, 2014, Tevis filed a motion to modify sentence in which he

averred his sentence was inconsistent with “his lack of adult record and good

conduct while in jail.” Post-Sentence Motion to Modify Sentence, 12/24/14.

The trial court denied Tevis’ post-sentence motion on January 9, 2014.

      This timely appeal followed.3    On appeal, Tevis raises the following

issue for our review:    “Whether the trial court’s excessive sentencing of

Tevis to sixty (60) months to one hundred twenty (120) months [of

incarceration] in file 703-2012 raises a substantial question as to the

reasonableness of the sentence[?]” Tevis’ Brief at 6.

      The sole issue Tevis raises on appeal challenges the discretionary

aspects of his sentence. “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. Buterbaugh, 91 A.3d 1247,

1265 (Pa. Super. 2014), appeal denied, 104 A.3d 1 (Pa. 2014).               “An

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


3
   The trial court did not order Tevis to file a concise statement of the errors
complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules
of Appellate Procedure.


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when challenging the discretionary aspects of a sentence.” Id. We conduct

this four-part test to determine whether,

           (1) the appellant preserved the issue either by
           raising it at the time of sentencing or in a post[-
           ]sentence motion; (2) the appellant filed a timely
           notice of appeal; (3) the appellant set forth a concise
           statement of reasons relied upon for the allowance of
           his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the
           appellant raises a substantial question for our
           review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted), appeal denied, 86 A.3d 231 (Pa. 2014). “A defendant presents a

substantial question when he sets forth a plausible argument that the

sentence violates a provision of the sentencing code or is contrary to the

fundamental norms of the sentencing process.” Commonwealth v. Dodge,

77 A.3d 1263, 1268 (Pa. Super. 2013) (quotations and citations omitted),

appeal denied, 91 A.3d 161 (Pa. 2014).

     Here, Tevis preserved his discretionary aspects of sentencing claim by

raising it in a post-sentence motion.    See Post-Sentence Motion to Modify

Sentence, 12/24/14. Tevis also filed a timely notice of appeal and included

in his appellate brief a concise statement of the reasons relied upon for the

allowance of his appeal pursuant to Rule 2119(f) of the Pennsylvania Rules

of Appellate Procedure. See Tevis’ Brief at 10. Thus, we must determine

whether Tevis’ discretionary aspects of sentencing claim raises a substantial

question for our review. Tevis argues that his sentence is excessive and that




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the trial court failed to consider mitigating factors such as his “young age,

low prior record score, and statement of self-accountability.” Id. This Court

recently has held “that an excessive sentence claim – in conjunction with an

assertion that the court failed to consider mitigating factors – raises a

substantial question.”     Commonwealth v. Raven, 97 A.3d 1244, 1253

(Pa. Super. 2014) (citing Commonwealth v. Perry, 883 A.2d 599, 602

(Pa. Super. 2005)).      Accordingly, we turn our attention to the merits of

Tevis’ sentencing claim.

      Our standard of review for discretionary aspects of sentencing claims

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.

Id.   (quoting   Commonwealth       v.   Shugars,   895   A.2d   1270,    1275

(Pa. Super. 2006)).

      Our review of the discretionary aspects of a sentence is confined by

the statutory mandates of 42 Pa.C.S.A. §§ 9781(c) and (d).           Subsection

9781(c) provides:




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           The appellate court shall vacate the sentence and
           remand the case to the sentencing court with
           instructions if it finds:

                 (1) the sentencing court purported to sentence
                 within the sentencing guidelines but applied
                 the guidelines erroneously;

                 (2) the sentencing court sentenced within the
                 sentencing guidelines but the case involves
                 circumstances where the application of the
                 guidelines would be clearly unreasonable; or

                 (3) the sentencing court sentenced outside the
                 sentencing guidelines and the sentence is
                 unreasonable.

           In all other cases the appellate court shall affirm the
           sentence imposed by the sentencing court.

42 Pa.C.S.A. § 9781(c). In reviewing the record, we must consider:

           (1) The nature and circumstances of the offense and
           the history and characteristics of the defendant.

           (2) The opportunity of the sentencing court to
           observe the defendant, including any presentence
           investigation.

           (3) The findings upon which the sentence was based.

           (4) The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(d).

     We conclude that the trial court did not abuse its discretion in

sentencing Tevis. The certified record reflects that Tevis received a sentence

in the standard guideline range. See N.T., 12/16/14, at 24. Additionally,

the trial court had a presentence investigation report and acknowledged




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reviewing it. Id. at 19. “[W]here the sentencing court imposed a standard-

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

consider the sentence excessive.” Commonwealth v. Corley, 31 A.3d 293,

298 (Pa. Super. 2011).      Additionally, “[i]n 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.” Id. (quotations and citations omitted).

      Furthermore, contrary to Tevis’ assertions, the certified record reflects

that it took into consideration several mitigating factors in sentencing Tevis,

including his low prior record score and statement of accountability.     See

N.T., 12/16/14, at 19-25. The trial court, however, indicated that it did not

accept Tevis’ statement of accountability, because Tevis merely claimed that

his crimes were the result of anger issues. Id. at 19. Rather, the trial court

found, based on the nature of his crimes, that his actions were the product

of someone who was sociopathic, calculating, and manipulative. See id. at

20. The trial court determined that the act of threatening and intimidating

someone into changing her story against him was not the result of a “flash”

of anger, but rather was a calculated and manipulative effort to get out of

trouble. See id. at 21. The trial court also took into consideration Tevis’

psychiatric history, which included diagnoses of bipolar disorder, obsessive-

compulsive disorder, and attention deficit hyperactivity disorder, noting that

in the past, Tevis had not been receptive to treatment for these mental



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health issues. See id. at 20, 23. Based on these findings, the trial court

determined that Tevis was a danger to others, was not a reformed

individual, and belonged in prison. See id. at 20-21.

      Therefore, there is no support for Tevis’ claim that his sentence was

excessive and that the trial court did not take into consideration certain

mitigating factors in sentencing him.       Accordingly, Tevis’ discretionary

aspects of sentencing claim does not entitle him to relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/6/2015




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