J-S40039-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAY BENNIE SCOTT                           :
                                               :
                       Appellant               :   No. 241 WDA 2019

        Appeal from the Judgment of Sentence Entered January 9, 2019
      In the Court of Common Pleas of Mercer County Criminal Division at
                        No(s): CP-43-CR-0000467-2018


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

MEMORANDUM BY PELLEGRINI, J.:                          FILED AUGUST 06, 2019

       Jay Bennie Scott (Scott) appeals from the aggregate judgment of

sentence by the Court of Common Pleas of Mercer County (sentencing court)

entered after a guilty plea to Indecent Assault and Corruption of Minors.1

Scott’s sole issue implicates the discretionary aspects of sentence. We affirm.

       It is well-settled that “[c]hallenges to the discretionary aspects of

sentencing do not entitle an appellant to review as of right.” Commonwealth

v. Derry, 150 A.3d 987, 991 (Pa. Super. 2016) (citation omitted). Rather,

before reaching the merits of such claims, we must determine:

       (1) whether the appeal is timely; (2) whether Appellant preserved
       his issue; (3) whether Appellant’s brief includes a concise
       statement of the reasons relied upon for allowance of appeal with
____________________________________________


1 18 Pa.C.S. §§ 3126(a)(7), 6301(a)(1)(ii). Both offenses are third-degree
felonies.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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        respect to the discretionary aspects of sentence; and (4) whether
        the concise statement raises a substantial question that the
        sentence is appropriate under the sentencing code.

Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)

(citation omitted).

        Scott filed a timely notice of appeal, properly preserved his claim by

filing a post-sentence motion for reconsideration, and includes a concise

statement of the reasons relied upon for allowance of appeal under Pa.R.A.P.

2119(f).    The only issue remaining then is whether Scott has raised a

substantial question that the sentence is not appropriate under the Sentencing

Code.

        The determination of what constitutes a substantial question must
        be evaluated on a case-by-case basis. 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.

Commonwealth v. Ali, 197 A.3d 742, 760 (Pa. Super. 2018) (internal

citations and quotations omitted).

        The sentencing court ordered Scott to serve one to five years’

imprisonment for Indecent Assault and a consecutive five years’ probation for

Corruption of Minors. Because he had no prior record and the offenses having

offense gravity scores of six, Scott’s guideline sentencing range was three –

twelve months for each offense.       See 204 Pa. Code. § 303.16(a) (basic

sentencing matrix). Scott’s claim is that his sentence was unreasonable in

light of his lack of criminal record and his low intellectual functioning and

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medical conditions. However, this claim is simply an alternative way of stating

that the sentencing court failed to give adequate weight to mitigating factors,

which does not raise a substantial question for our review.                See

Commonwealth v. Downing, 990 A.2d 788, 794 (Pa. Super. 2010) (“[T]his

Court has held on numerous occasions that a claim of inadequate

consideration of mitigating factors does not raise a substantial question for

our review.”).

      Where, as here, the sentencing court has the benefit of reviewing a pre-

sentence investigation report, “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. Rhoades, 8 A.3d 912, 919 (Pa. Super. 2010) (internal

quotations and citation omitted). Because there is no substantial question

regarding his sentence, Scott is not entitled to appeal the discretionary

aspects of his sentence.

      Even if we were to reach the merits of Scott’s claim, we would find no

abuse of discretion. As stated above, the sentencing court imposed a sentence

within the guidelines for Indecent Assault because the minimum sentence was

one year and a mitigated sentence for Corruption of Minors because Scott

received five years’ probation.

      [A] defendant may raise a substantial question where he receives
      consecutive sentences within the guideline ranges if the case
      involves circumstances where the application of the guidelines
      would be clearly unreasonable, resulting in an excessive sentence.

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Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013).

      After hearing from both the victim and her mother, the sentencing court

made the following statement:

      These are very difficult cases for the Court. The offense is very
      serious. There is a great impact on the victim, as we have heard
      today. There’s a great impact on the community for these kinds
      of offenses. Everyone in the community, their most precious thing
      to them is their children, their children’s safety. And when that
      safety is violated, as it was in this case, the impact on the
      community at large is great. I have to determine the need to
      protect the community. Certainly, my number one priority is to
      see that this victim is never bothered by this man again, but also
      that any other child is safe from him.

      I also have to consider his rehabilitative needs. So there’s a lot
      that I to have to weigh, pro and con, in these matters.
      Unfortunately, when someone commits an offense like this,
      there’s many victims, not just the victim herself and her family;
      but the Defendant’s family has to go through an awful lot, as well.
      And I appreciate the fact that the Defendant’s family is supportive.

      Therefore, I am going to impose a sentence that probably
      everyone here, the Commonwealth, the victim, and the Defendant
      won't be happy with. But it is one after I balance all of the pros
      and cons, the various factors, the competing interests, I believe
      is fair.

N.T., 1/7/19, at 17-18.

      This discussion establishes that the sentencing court balanced the

seriousness of the offense against Scott’s rehabilitative needs. See 42 Pa.C.S.

§ 9721(b) (“[T]he 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


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defendant.”). Based on our review per 42 Pa.C.S. § 9781(d), the sentencing

court’s application of the guidelines was not clearly unreasonable.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/6/2019




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