J-S27021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

AMANDA E. BECKER

                            Appellant               No. 1626 MDA 2015


            Appeal from the Judgment of Sentence August 19, 2015
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0001807-2014
                           CP-36-CR-0001810-2014
                           CP-36-CR-0001811-2014

BEFORE: SHOGAN, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                        FILED JULY 22, 2016

       This is an appeal from the judgment of sentence entered in the Court

of Common Pleas of Lancaster County following Appellant’s open guilty plea

to two counts of aggravated assault, and one count each of aggravated

harassment, resisting arrest, disorderly conduct, and theft by unlawful

taking.1 On appeal, Appellant challenges the discretionary aspects of her

sentence. We affirm.

       The relevant facts and procedural history have been aptly set forth by

the trial court, in part, as follows:

____________________________________________


1
  18 Pa.C.S.A. §§ 2702(a)(3), 2703.1, 5104, 5503(a)(2), and 3921(a),
respectfully.



*Former Justice specially assigned to the Superior Court.
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            On April 3, 2014, [Appellant] stole a 1998 Dodge Grand
      Caravan that belonged to the father of a friend with whom she
      had stayed for several nights, resulting in a charge of [t]heft by
      [u]nlawful [t]aking (F-3) on Docket 1811-2014.

            At the preliminary arraignment, bail was set for this charge
      and, being unable to make bail, [Appellant] was remanded to the
      Lancaster County Prison[.] She subsequently became combative
      and violent when police [officers] attempted to put her in the
      patrol unit, and she kicked an officer in the right leg. This
      resulted in a new charge of [a]ggravated [a]ssault (F-4) on
      Docket 1807-2014.

             The four charges on Docket 1810-2014 stem from the
      following series of incidents.        [Appellant], while being
      interviewed on March 27, 2014, as a potential witness in an
      animal     attack   investigation,  became      belligerent     and
      uncooperative and, upon being advised to relax, continued to
      yell and scream.        [The] [p]olice soon determined that
      [Appellant] had two summary warrants through the Lancaster
      City Police and was taken into custody. Upon being taken into
      custody, [Appellant] became violent and combative.            When
      officers attempted to place [Appellant] in a police car, she
      continued to resist, kicking one of the officers in the right leg
      several times. After continuing to kick and flail, police [officers]
      finally succeeded in restraining [Appellant] by using leg
      restraints and a hobble device. Finally, following her arrival at
      the Ephrata Police Department, she spit in another officer’s face.

Trial Court Opinion, filed 11/10/15, at 1-3 (footnotes and citations to record

omitted).

      The trial court consolidated the charges, and on September 17, 2014,

Appellant pled into the Lancaster County Mental Health Court Program

(“Mental Health Court Program”). Specifically, on September 17, 2014, she

pled guilty to theft by unlawful taking on Docket 1811-2014, and she was

placed on probation for five years with numerous conditions, including

successful completion of the Mental Health Court Program. On Docket 1807-


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2014, she pled guilty to one count of aggravated assault, and on Docket

1810-2014, she pled guilty to four offenses, including aggravated assault,

aggravated    harassment,   resisting   arrest,   and   disorderly   conduct.

Sentencing was deferred on the charges at Dockets 1807-2014 and 1810-

2014 pending Appellant’s successful completion of the Mental Health Court

Program.

      Thereafter, Appellant did not successfully complete the Mental Health

Court Program, and in fact, she absconded.        Appellant was eventually

apprehended and discharged from the Mental Health Court Program. At the

time of the discharge, the trial court ordered a pre-sentence investigation

report.

      Following a sentencing hearing on August 19, 2015, at which Appellant

was represented by counsel, the trial court sentenced Appellant as follows:

On Docket 1807-2014, as to aggravated assault, ten months to two years in

prison.   On Docket 1810-2014, as to count one, aggravated assault, ten

months to two years in prison, to run consecutively to the sentence imposed

on Docket 1807-2014; as to count two, aggravated harassment, ten months

to two years in prison, to run consecutively to the sentence imposed on

count one of Docket 1810-2014 and Docket 1807-2014; as to count three,

resisting arrest, and count four, disorderly conduct, costs only. On Docket

1811-2014, as to theft by unlawful taking, one year to two years in prison,

to run concurrently with the other sentences.      The resulting aggregate


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sentence was two and one-half years to six years in prison. The trial court

gave Appellant credit for all time served.

      On August 27, 2015, Appellant filed a timely, counseled post-sentence

motion in which she preserved her challenge to the imposition of consecutive

sentences by alleging “the imposition of the consecutive sentences is

excessive, in light of the fact that [Appellant] has already spent nearly 10

months incarcerated in Lancaster County Prison prior to and during her

participation in Mental Health Court.”       Appellant’s Post-Sentence Motion,

filed 8/27/15.

      By order entered on September 1, 2015, the trial court denied

Appellant’s post-sentence motion, and this timely appeal followed. The trial

court directed Appellant to file a Pa.R.A.P. 1925(b) statement, Appellant

timely complied, and the trial court filed a responsive Pa.R.A.P. 1925(a)

opinion.

      On appeal, Appellant challenges the discretionary aspects of her

sentence.   A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right. Commonwealth v. Hunter,

768 A.2d 1136 (Pa.Super. 2001). Prior to reaching the merits of a

discretionary sentencing issue:

      We conduct a four-part analysis to determine: (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

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       question that the sentence appealed from is not appropriate
       under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006) (citations

omitted).

       In the instant case, Appellant filed a timely notice of appeal and a

timely post-sentence motion.            She also included a separate Pa.R.A.P.

2119(f) statement in her appellate brief.         As to whether Appellant has

presented a substantial question, we must examine the specific sentencing

issue raised by Appellant.

       In her Pa.R.A.P. 2119(f) statement, Appellant alleges “the trial court’s

cumulative sentence of two and one-half to six years incarceration was

clearly unreasonable and so manifestly excessive as to constitute an abuse

of discretion.”2 Appellant’s Brief at 8 (citations omitted).

       It is well-settled that:


____________________________________________


2
  To the extent Appellant suggested in her Pa.R.A.P. 2119(f) statement that
the imposition of consecutive sentences raised a substantial question since
the sentence was not consistent with the factors set forth in 42 Pa.C.S.A. §
9721, this argument is waived since it was not presented to the sentencing
court in the post-sentence motion or during Appellant’s sentencing hearing.
See Commonwealth v. Griffin, 65 A.3d 932 (Pa.Super. 2013) (discussing
preservation of discretionary aspects of sentencing claims).       Moreover,
Appellant’s attempt to preserve this specific issue in her court-ordered
Pa.R.A.P. 1925(b) statement is unavailing. Commonwealth v. McAfee,
849 A.2d 270, 275 (Pa.Super. 2004) (holding the failure to preserve specific
discretionary aspects of sentencing claims in post-sentence motions or at the
sentencing hearing may not be cured by raising the claim for the first time in
a Pa.R.A.P. 1925(b) statement).



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      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. Moury, 992 A.2d 162, 170 (Pa.Super. 2010) (citation,

quotation marks, and quotation omitted).

      With regard to the imposition of consecutive sentences, which resulted

in Appellant’s cumulative sentence of two and one-half to six years

incarceration, this Court has held:

            A court's exercise of discretion in imposing a sentence
      concurrently or consecutively does not ordinarily raise a
      substantial question. Commonwealth v. Mastromarino, 2
      A.3d 581, 587 (Pa.Super. 2010)[.] Rather, the imposition of
      consecutive rather than concurrent sentences will present a
      substantial question in only “the most extreme circumstances,
      such as where the aggregate sentence is unduly harsh,
      considering the nature of the crimes and the length of
      imprisonment.” Commonwealth v. Lamonda, 52 A.3d 365,
      372 (Pa.Super. 2012)[(en banc)].

                  [An appellant] may raise a substantial question
            where [s]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; however, a bald claim of
            excessiveness due to the consecutive nature of a
            sentence will not raise a substantial question.

Commonwealth v. Swope, 123 A.3d 333, 338-39 (Pa.Super. 2015)

(quotation omitted).    As this Court has emphasized, “the key to resolving

the preliminary substantial question inquiry is whether the decision to



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sentence consecutively raises the aggregate sentence to, what appears upon

its fact to be, an excessive level in light of the criminal conduct at issue in

the case.” Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super. 2011)

(quotation marks and quotation omitted).

       In the case sub judice, as the Commonwealth cogently argues in its

appellate brief, Appellant’s preserved challenge to the imposition of

consecutive sentences does not raise a substantial question permitting our

review. See Commonwealth’s Brief at 7-8. Simply put, Appellant has not

framed and preserved her issue in a manner that suggests the trial court’s

decision to impose consecutive sentences “raises the aggregate sentence to,

what appears on its face to be, an excessive level in light of the criminal

conduct at issue in this case.” Prisk, 13 A.3d at 533 (quotation marks and

quotation omitted).       Accordingly, we conclude Appellant has not raised a

substantial question permitting our review as to the trial court’s imposition

of consecutive sentences. 3


____________________________________________


3
   We note that, in her post-sentence motion, Appellant also averred
“[Appellant] has struggled with mental health issues from an early age, and
desires to seek serious treatment in a long-term inpatient mental health
facility as opposed to a State Correctional Institution.” Id. This averment
does not present a cogent issue concerning the trial court’s exercise of
discretion in imposing Appellant’s sentence. To the extent Appellant was
attempting to argue the trial court did not adequately consider the mitigating
factor of her mental health in imposing jail time, as she suggested on
appeal, such would not present a substantial question.                    See
Commonwealth v. Berry, 785 A.2d 994 (Pa.Super. 2001) (holding
(Footnote Continued Next Page)


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J-S27021-16


      For all of the foregoing reasons, we affirm.

      Affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/22/2016




                       _______________________
(Footnote Continued)

allegation the trial court failed to consider a certain mitigating factor
adequately does not raise a substantial question).



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