J-S41039-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

WILLIAM EDWARD THOMAS, JR.,

                            Appellant                 No. 133 MDA 2015


          Appeal from the Judgment of Sentence December 15, 2014
               in the Court of Common Pleas of Clinton County
              Criminal Division at No.: CP-18-CR-0000325-2014

BEFORE: ALLEN, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               FILED JULY 17, 2015

        Appellant, William Edward Thomas, Jr., appeals from the judgment of

sentence imposed on December 15, 2014, following his open guilty plea to

receiving stolen property, possession of a small amount of marijuana,

possession of drug paraphernalia, and person not to possess firearms.1 We

affirm.

        The relevant facts and procedural history are as follows. On November

6, 2014, Appellant entered an open guilty plea to the aforementioned

charges. (See N.T. Guilty Plea, 11/06/14, at 2). Following receipt of a pre-

sentence investigation report (PSI), on December 15, 2014, the trial court
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 18 Pa.C.S.A. § 3925(a), 35 P.S. §§ 780-113(a)(31) and (32), 18 Pa.C.S.A.
§ 6105(a)(1), respectively.
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imposed sentence.     (See N.T. Sentencing, 12/15/14, at 2, 6, 8).            In

imposing sentence, the trial court stated that it had “received and reviewed”

the PSI, it noted that Appellant had a prior record as a result of a felony

conviction in New York State, and that it considered the comments of

Appellant and defense counsel. (Id. at 6; see id. at 6-7). The trial court

observed that Appellant acquired a high school diploma, had a child, secured

employment while awaiting sentence, and wished to further his education.

(See id. at 7-8). However, the trial court expressed considerable concern

over Appellant’s illegal possession of two weapons.       (See id. at 8).      It

disregarded   speculation   by   the   probation   department    that   Appellant

possessed the drugs with intent to distribute.      (See id.).   The trial court

found Appellant to be eligible for the Recidivism Risk Reduction Incentive

Program (RRRI). (See id.). The trial court imposed an aggregate standard

range sentence of not less than thirty-six months nor more than eighty-four

months of incarceration to be followed by a consecutive term of probation.

(See id. at 9-10). It then imposed an RRRI minimum sentence of not less

than twenty-seven months of incarceration. (See id.).

     On December 18, 2014, Appellant filed a post-sentence motion

arguing that his sentence was excessive and inappropriate because the trial

court failed to properly weigh mitigating factors and improperly focused on

the punitive aspect of sentencing.        (See Motion to Modify Sentence,

12/18/14, at unnumbered page 2). Following oral argument, on January 6,


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2015, the trial court denied the motion. The instant timely appeal followed.

On January 28, 2015, Appellant filed a timely concise statement of errors

complained of on appeal. See Pa.R.A.P. 1925(b). On February 2, 2015, the

trial court filed an opinion. See Pa.R.A.P. 1925(a).

      On appeal, Appellant raises the following question for our review:

      1. Did the trial court abuse its discretion when it sentenced
         [Appellant] to serve the maximum of his standard range
         along with lengthy period of parole and probation despite the
         totality of the circumstances?

(Appellant’s Brief, at 7).

      On appeal, Appellant challenges the discretionary aspects of sentence.

(See id.). The right to appeal the discretionary aspects of a sentence is not

absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.

2004), appeal denied, 860 A.2d 122 (Pa. 2004).            When an appellant

challenges the discretionary aspects of the sentence imposed, he must

present “a substantial question as to the appropriateness of the sentence[.]”

Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003)

(citations omitted).   An appellant must, pursuant to Pennsylvania Rule of

Appellate Procedure 2119(f), articulate “a colorable argument that the

sentence violates a particular provision of the Sentencing Code or is contrary

to   the   fundamental       norms   underlying   the   sentencing   scheme.”

Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super. 2005)

(en banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation omitted). If

an appellant’s Rule 2119(f) statement meets these prerequisites, we have

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found that a substantial question exists. See Commonwealth v. Goggins,

748 A.2d 721, 727 (Pa. Super. 2000) (en banc), appeal denied, 759 A.2d

920 (Pa. 2000).       “Our inquiry must focus on the reasons for which the

appeal is sought, in contrast to the facts underlying the appeal, which are

necessary only to decide the appeal on the merits.”        Id. (emphases in

original).

      Here, Appellant has included a Rule 2119(f) statement in his brief.

(See Appellant’s Brief, at 12-13).    It states that the trial court failed to

consider mitigating circumstances such as Appellant’s cooperation with the

criminal process, his pleading guilty, his minimal prior record, his being a

supportive and loving parent, and his constant maintenance of gainful

employment. (See id. at 13).

      Our standard of review is settled.

              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.

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015)

(citation omitted).

      Here, Appellant claims that his sentence was unreasonable and

excessive because the sentencing court did not consider mitigating factors.

(See Appellant’s Brief, at 15-17).

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      We note that a bald claim of an excessive sentence does not generally

raise a substantial question.     See Commonwealth v. Dodge, 77 A.3d

1263, 1269 (Pa. Super. 2013), appeal denied, 91 A.3d 161 (Pa. 2014).

However, this Court has held that a claim of excessiveness in conjunction

with a claim that the sentencing court did not consider mitigating factors

presents a substantial question.      See Gonzalez, supra at 731 (citing

Dodge, supra at 1272); see also Commonwealth v. Zeigler, 112 A.3d

656, 662 (Pa. Super. 2015).        We will therefore address the merits of

Appellant’s claim.

      In the instant matter, the sentencing court had the benefit of a PSI.

We have stated that:

            [w]hen imposing a sentence, a court is required to
      consider the particular circumstances of the offense and the
      character of the defendant. . . . Where the sentencing court had
      the benefit of a presentence investigation report [PSI], 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. Further,
      where a sentence is within the standard range of the guidelines,
      Pennsylvania law views the sentence as appropriate under the
      Sentencing Code.

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (some

internal quotation marks and citations omitted). Here, the sentencing court

stated that it had reviewed the PSI and imposed a sentence within the

standard range of the guidelines, as Appellant acknowledged at the hearing

on his post-sentence motion.      (See N.T. Sentencing, 12/15/14, at 6; N.T.

Motion Hearing, 1/05/15, at 2).

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      Additionally, Appellant has not demonstrated that his sentence was

manifestly excessive because the sentencing court failed to consider

mitigating factors.    As discussed above, at sentencing, the trial court

acknowledged the PSI, considered Appellant’s and his counsel’s statements

made in favor of mitigation, and noted his prior record score, his educational

achievements, that he had a child, and his employment record. (See N.T.

Sentencing, 12/15/14, at 6-8).       The trial court balanced this against

Appellant’s possession of two weapons despite his prior felony conviction.

(See id. at 8).       The trial court thereafter imposed a standard range

sentence. (See id. at 9-10).

      Clearly, the gist of Appellant’s argument is not that the sentencing

court did not consider the relevant sentencing factors, but rather that the

court did not weigh them as much in his favor as he wished.              (See

Appellant’s Brief, at 15-17). Our review of the record does not show that

the sentencing court abused its discretion or that it entered a manifestly

unreasonable sentence. See Zeigler, supra at 662 (holding sentence not

manifestly unreasonable where sentencing court considered PSI, details of

crime, and explained reasons for sentence); see also Moury, supra at 171.

Appellant’s claim lacks merit.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/2015




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