J-S10035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JOHN CHARLES CHAPMAN,

                            Appellant                No. 2132 EDA 2015


             Appeal from the Judgment of Sentence April 15, 2015
               in the Court of Common Pleas of Wayne County
              Criminal Division at No.: CP-64-CR-0000220-2014


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED FEBRUARY 12, 2016

        Appellant, John Charles Chapman, appeals from the judgment of

sentence imposed on April 15, 2015 after his guilty plea to one count of theft

by unlawful taking. We affirm.

        We take the facts and procedural history in this matter from the

transcript of the guilty plea and sentencing hearings, the trial court opinion

and our review of the certified record. Appellant and his landlady, Ms. Elaine

Holgate, agreed that in exchange for her lowering his rent payments,

Appellant would make certain improvements to the property he was renting

from her.     On October 8, 2012, they went to Home Depot and purchased

$901.70 worth of materials for the improvements.           (See N.T. Guilty Plea

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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Hearing, 7/17/14, at 1).         Appellant then took the materials and vacated

without making any improvements. (See id.).

        On July 17, 2014, Appellant pleaded guilty to one count of theft by

unlawful taking.      On April 15, 2015, the trial court, with the benefit of a

presentence      investigation     report      (PSI),   sentenced   Appellant   in   the

aggravated range to not less than seventeen months’ nor more than five

years’ imprisonment. (See Trial Court Opinion, 6/12/15, at 1). The court

made Appellant RRRI eligible with a RRRI minimum of twelve and three-

quarters months and directed that Appellant was to serve this sentence

concurrent to a sentence which he was already serving in a non-related

case.

        The trial court explained that aggravating circumstances were present

in this case because of Appellant’s extensive criminal record, consisting of at

least twenty-six prior convictions, and because Appellant committed this

theft while on parole supervision. (See N.T. Sentencing, 4/15/15, at 7-8).

        On April 27, 2015, Appellant timely1 filed a post-sentence motion

claiming his sentence was harsh and oppressive, which the trial court denied

by order with an accompanying opinion on June 12, 2015.                   (See Order,




____________________________________________


1
 April 25, 2015 was a Saturday, thus Appellant’s post-sentence motion was
due the following Monday, April 27, 2015. See 1 Pa.C.S.A. § 1908.




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6/12/15).      On July 13, 2015, Appellant timely filed his notice of appeal. 2

Pursuant to the trial court’s order, Appellant filed his concise statement of

errors complained of on appeal on August 4, 2015. See Pa.R.A.P. 1925(b).

On August 6, 2015, the trial court entered a statement that it was relying on

its June 12, 2015 opinion and order. See Pa.R.A.P. 1925(a).

       Appellant raises one question on appeal:

       [1.] Was the trial court’s imposition of a sentence in the
       aggravated range of seventeen (17) months to five (5) years [of
       imprisonment] overly harsh and excessive?

(Appellant’s Brief, at 5) (unnecessary capitalization omitted).

       Appellant’s issue seeks review of the length of his sentence and,

accordingly, challenges the trial court’s exercise of discretion.          See

Commonwealth v. Bromley, 862 A.2d 598, 604 (Pa. Super. 2004), appeal

denied, 881 A.2d 818 (Pa. 2005), cert. denied, 546 U.S. 1095 (2006).

       To reach 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, Pa.R.A.P. 902, 903; (2)
       whether the issue was properly preserved at sentencing or in a
       motion to reconsider and modify sentence, 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. section 9781(b).

Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007) (case citation

omitted).
____________________________________________


2
  July 12, 2015 was a Sunday, thus the notice of appeal was due the
following Monday, July 13, 2015. See 1 Pa.C.S.A. § 1908.



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      Here, Appellant properly preserved his claim by filing a timely post-

sentence motion and notice of appeal.      Additionally, Appellant included a

Rule 2119(f) statement in his brief, which argues that a substantial question

exists whether his sentence, which was in the aggravated range, was

consistent with his prior record score of four. (See Appellant’s Brief, at 7-

8).   A claim that a sentencing court relied on improper factors and

improperly sentenced an appellant in the aggravated range raises a

substantial question. See Commonwealth v. Stewart, 867 A.2d 589, 592

(Pa. Super. 2005).    Therefore, we will consider the merits of Appellant’s

issue. See Cook, supra at 11.

      Our standard of review in sentencing matters is well 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. An abuse of
      discretion is more than just an error in judgment and, on appeal,
      the trial court will not be found to have abused its discretion
      unless the record discloses that the judgment exercised was
      manifestly unreasonable, or the result of partiality, prejudice,
      bias, or ill-will.

Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa. Super. 2013), appeal

denied, 85 A.3d 481 (Pa. 2014) (citation omitted).

      A sentencing court may consider any legal factor in determining
      that a sentence in the aggravated range should be imposed. In
      addition, the sentencing judge’s statement of reasons on the
      record must reflect this consideration, and the sentencing
      judge’s decision regarding the aggravation of a sentence will not
      be disturbed absent a manifest abuse of discretion.




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Commonwealth v. Bowen, 975 A.2d 1120, 1122 (Pa. Super. 2009)

(citations and quotation marks omitted); see also 204 Pa.Code § 303.13(c)

(providing that when imposing sentence in aggravated range sentencing

court, “shall state [its] reasons on the record[.]”).

      Here, our review of the record reveals that at the time of sentencing,

Appellant’s prior record score was four and the offense gravity score was

three.   (See Trial Ct. Op., at 1).     Accordingly, the aggravated guideline

range was up to seventeen months’ imprisonment.         See 204 Pa. Code §

303.16(a).    At sentencing, the trial court, with the benefit of a PSI,

sentenced Appellant in the aggravated range of the guidelines to not less

than seventeen months nor more than five years’ imprisonment. (See N.T.

Sentencing, 4/15/15, at 6-8).        The court explained that it imposed a

sentence in the aggravated range because of Appellant’s “extensive criminal

history and the fact that he committed the instant offense while on parole

supervision.” (Trial Ct. Op. at 3; see N.T. Sentencing, at 8).

      Accordingly, we conclude that the court properly exercised its

discretion in sentencing Appellant in the aggravated range.        The court

adequately stated its reasons and the record substantiates its sentencing

determinations.    See Clarke, supra at 1287; Bowen, supra at 1122.

Therefore, Appellant’s issue does not merit relief.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/12/2016




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