J-S58025-16



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

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA


                       v.

KEVIN ALAN SMITH, JR.

                                Appellant                     No. 71 MDA 2016


          Appeal from the Judgment of Sentence December 21, 2015
              In the Court of Common Pleas of Columbia County
             Criminal Division at No(s): CP- 19 -CR- 0000668 -2013
                           CP- 19 -CR- 0000669 -2013




BEFORE:      GANTMAN, P.J., BOWES AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                                 FILED OCTOBER 24, 2016

      Kevin Alan Smith, Jr. appeals              from the aggregate judgment of

sentence of nineteen to thirty -eight months of incarceration imposed

following his entry of      a   guilty plea at two criminal cases. We affirm.

      The following facts are revealed by the affidavits of probable cause.

On June 18, 2013, Columbia County adult probation officers stopped a

vehicle for   a   suspected wanted person.         The officers requested assistance

from Scott Township Police. Sergeant Mike Grassley went to the vehicle and

spoke to Appellant, who was seated in the rear. The sergeant learned, upon

consulting    a   database, that Appellant had several outstanding warrants.

Appellant was thus removed from the vehicle and handcuffed; however, he


* Retired Senior Judge assigned to the Superior Court.
J-S58025-16



was able to escape.           Sergeant Grassley gave chase and tackled Appellant,

who continued to fight with the officer.            Appellant was eventually subdued

and placed in the police vehicle, where he kicked out the rear driver's side

window. Sergeant Grassley hurt his shoulder during the incident. Appellant

was charged at criminal action number 2013 -668 with aggravated assault of

a   police officer, simple assault, resisting arrest, and two summary offenses.

        Appellant       was    lodged   in   the   Columbia   County   Prison   for the

aforementioned crimes. While there, he broke the window of his cell in an

attempt to escape.            As a result, Appellant was charged at criminal action

number 2013 -669 with escape, criminal attempt (escape), institutional

vandalism, and      a   summary offense.

        Appellant waived his preliminary hearing at both cases on August 7,

2013, and informations were filed later that month.                    The cases were

postponed several times over the ensuing two years, largely at Appellant's

request.'



'    From October 30, 2013 through January 4, 2014 the cases were
postponed for a psychological evaluation. From January of 2014 through
August of 2014, Appellant's attorney filed postponements that indicated the
parties were discussing a plea.

Additionally, Appellant was recommitted, on April 7, 2014, to a state
correctional institute as a result of a parole revocation. N.T. Sentencing,
12/21/15, at 7. The certified record reveals that at least one postponement
occurred due to difficulties securing Appellant's presence from the facility.



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         On September 14, 2015, Appellant entered a                      guilty   plea.2        Appellant

pleaded guilty at case number 2013 -668 to the counts of simple assault and

resisting arrest.            At case number 2013 -669, he entered                   a       plea to the

offenses of criminal attempt (escape) and institutional vandalism.                                    All

remaining counts were withdrawn.

         The       parties    appeared       on   December         21,   2015     for sentencing.

Appellant, who had            a   prior record score of four, informed the court that he

has a diagnosis of borderline personality disorder, bipolar disorder, and had

undergone twenty hospitalizations, including                   a    sixty -day stay at Torrance

State Hospital. N.T. Sentencing, 12/21/15, at                  3    -4. At case ending 669, he

received       a   sentence of fifteen to thirty months for the criminal attempt

(escape) charge, with               a   concurrent period of three to six months for

institutional vandalism. In the other case, Appellant received                          a   sentence of

four to eight months incarceration at the simple assault charge, set to run

consecutively to the sentence imposed at 2013 -669.                         As to the remaining

charge of resisting arrest, Appellant received             a       concurrent sentence of three

to six months incarceration.

         Appellant timely filed          a   post- sentence motion requesting               a   sentence

modification, averring that the judge failed to take into consideration his




2   A   transcript of these proceedings does not appear in the certified record.


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extensive mental health history. The motion was denied by order docketed

January 6, 2015.

          Appellant lodged   a   timely notice of appeal and complied with the order

to file   a    Pa.R.A.P. 1925(b) statement. The trial court issued its Rule 1925(a)

opinion on April 8, 2016, and the matter is now ready for our review.

Appellant raises two claims, both implicating the discretionary aspects of his

sentence.

          1.    Whether the [t]rial        [c]ourt abused     its   discretion   in
          sentencing the Appellant[ ?]

          2.   Whether the [t]rial [c]ourt erred when it failed to consider
          the Appellant's mental health in his sentence[ ?]

Appellant's brief at 5.

          Preliminarily, we note that "there    is no   absolute right to appeal when

challenging the discretionary aspect of         a   sentence."      Commonwealth v.
Ahmad, 961 A.2d 884, 886 (Pa.Super. 2008).                   An appellant must first

satisfy    a   four -part test to invoke this Court's jurisdiction. We examine

          (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 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. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013) (citation
omitted).



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        Herein, the first three requirements of the four -part test are met: This

appeal is timely,      a   post- sentence motion challenged the issue raised herein,

and   Appellant's brief includes             a   separate Pa.R.A.P.      2119(f) statement

preceding the argument portion of the brief.

        We next determine whether Appellant raises a substantial question

permitting our review of the discretionary aspects of the sentence imposed.

The Rule 2119(f) statement reads:

        The [t]rial [c]ourt sentenced the Appellant to fifteen (15) months
        to thirty (30) months. The [t]rial [c]ourt failed to take into
        consideration various important factors in this sentence, such as
        the Appellant's mental health history. Accordingly, this case
        should be remanded for a new sentencing hearing.

Appellant's brief at           5 -6.3   The Commonwealth argues that this statement

fails to raise   a   substantial question. We agree.

        The determination of whether there is               a   substantial question   is made

on a case -by -case basis, and we will grant the appeal "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."               Commonwealth v. Moury, 992 A.2d 162, 170




3   We note that while Appellant has lodged this appeal at both criminal
numbers, the brief itself addresses only the sentence imposed at the criminal
attempt (escape) count.


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(Pa.Super. 2010) (quoting Commonwealth v. Sierra, 752 A.2d 910, 912-

913 (Pa.Super. 2000)).

      In Commonwealth v. Haynes, 125 A.3d 800, 807 (Pa.Super. 2015),

we found the appellant failed to raise       a   substantial question where he

asserted that the trial court "failed to consider his mental health issues and

rehabilitative needs." Id. (citing appellant's brief). We stated:

      [T]his Court has held on numerous occasions that a claim of
      inadequate consideration of such factors does not raise a
      substantial question for our review. We point out that Haynes
      does not allege that the trial court was unaware of his mental
      health issues or his rehabilitative needs. Indeed, Haynes has not
      raised an issue that his sentence is "(1) inconsistent with a
      specific provision of the Sentencing Code; or (2) contrary to the
      fundamental norms which underlie the sentencing process."
      Thus, we conclude that this claim fails to present a substantial
      question for review.

Id. at 807 (citations omitted).    The same is true here: Appellant's Rule

2119(f) statement does not allege that the court was unaware of the mental

health issues.   While Appellant posits that there are other factors the court

failed to consider, those items are not delineated.    See Commonwealth v.

Provenzano, 50 A.3d 148, 154 (Pa.Super. 2012) (reviewing court cannot

look beyond      the statement of questions       presented and       the 2119(f)

statement to determine whether       a    substantial question exists).     Thus,

Appellant's sentencing claim appears to be little more than       a   challenge to

the court's weighing of all sentencing factors, including rehabilitative needs

posed by the purported mental health issues and the other factors, whatever


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those may be. Appellant fails to allege anything that warrants                 a   departure

from Haynes under our case -by -case approach.                      Therefore, we find

Appellant has failed to present      a   substantial question.

        Even if Appellant had raised       a   substantial question, we would not find

an abuse of discretion.        Upon review of Appellant's substantive argument, it

is   clear the objection is not to the sentence itself but rather the choice of

sentencing alternatives under Section 9721(a) of the Sentencing Code.

Appellant asks us to find that, in light of his mental health issues, the

sentencing court abused its discretion by sentencing Appellant to                    a   state

correctional institution rather than      a    mental facility. Appellant's brief at 7.

        The Sentencing Code provides that the sentencing judge shall select

from one or more of the following alternatives when imposing              a   sentence:

               (1)   An order of probation.
               (2)   A determination of guilt without further penalty.
               (3)   Partial confinement.
               (4)   Total confinement.
               (5)   A fine.
               (6)   County intermediate punishment.
               (7)   State intermediate punishment.

42 Pa.C.S.     §   9721(a).

        We discern Appellant's argument to be that he should have been

permitted to serve his sentence through some type of treatment plan. See

e.g. Commonwealth v. Pinko, 811 A.2d 576, 577 (Pa.Super. 2002)

( "Appellant       was sentenced to 60 months of intermediate punishment, all

restrictive at the Dauphin County Work Release Center or, if appropriate, to

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inpatient treatment for his mental illness. ").          However, "The sentencer has

broad discretion to choose         a   penalty from sentencing alternatives and the

range of permissible confinements, provided the choices are consistent with

the protection of the public, the gravity of the offense, and the rehabilitative

needs of the defendant."           Commonwealth v. Childs, 664 A.2d 994, 996
(Pa.Super. 1999) (quoting Commonwealth v. Devers, 546 A.2d 12, 13

(Pa. 1988)).

      The trial court clearly did not abuse its discretion in this regard. The

Pa.R.A.P. 1925(a) opinion, in addressing Appellant's sentencing challenge,

states:   "It   is   noted that [Appellant] has been placed in forensic units in the

state correctional system, which           is    probably the best placement for him.

The sentences handed down did, in fact, take into account the [appellant]'s

extensive mental health diagnoses and history." Trial Court Opinion, 4/8/16,

at 2 -3 (original unnumbered).            The sentences were within the standard

range of the guidelines at all counts.               Were we permitted to reach the

merits, our standard of review limits our ability to vacate and remand in

cases where the court sentenced within the guidelines.               We may reverse

only if applying the guidelines would be clearly unreasonable under the

circumstances. 42 Pa.C.S.          §   9781(c)(2); See Commonwealth v. Macias,

968 A.2d 773, 777 (Pa.Super. 2009) (defining unreasonable as decision that




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is   either irrational or not guided by sound judgment).    The sentence was

within the guidelines and the choice to apply them was   rational.4


        Judgment of sentence affirmed.



Judgment Entered.



     /
J    seph D. Seletyn,
Prothonotary


Date: 10/24/2016




4  We also note that Appellant specifically requested that any period of
incarceration be imposed in a state facility instead of the county jail. N.T.
Sentencing, 12/21/15, at 7.


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