J-S11019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA


                       v.

MATTHEW LEE SMITH

                            Appellant                       No. 808 WDA 2016


             Appeal from the Judgment of Sentence April 27, 2016
                  in the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0002956-2015


BEFORE: OLSON, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.:                                   FILED APRIL 17, 2017

        Appellant, Matthew Lee Smith, appeals from the judgment of sentence

of thirty-six to seventy-two months of incarceration, imposed April 27, 2016,

following his guilty plea to one count of robbery.1 We affirm.

        In August 2015, Appellant robbed a Springfield Township bank. See

Notes of Testimony (N.T.), 3/9/16, at 10.             On March 9, 2016, Appellant

entered a guilty plea to a single count of robbery.             On April 27, 2016,

Appellant     was    sentenced      to   thirty-six   to   seventy-two   months   of

incarceration, to be served consecutive to his sentence at Criminal

Information No. CP-20-CR-0000551-2011 in Crawford County.                 Appellant

timely filed a post-sentence motion, which the court denied.

____________________________________________


1
    18 Pa.C.S. § 3701(a)(1)(vi).


*
    Former Justice specially assigned to the Superior Court.
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       Appellant timely appealed and filed a court ordered statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).            The trial court

issued a responsive opinion.

       Appellant presents a single question for our review:

       Was the sentence in this case manifestly excessive and clearly
       unreasonable, as it was within the aggravated range, without
       sufficient reason, and was not individualized as required by law,
       especially in that the sentence did not properly take into account
       the several mitigating factors present?

Appellant’s Brief at 1 (unnecessary capitalization omitted).

       Appellant challenges the discretionary aspects of his sentence, a

challenge which does not entitle him to review as of right. Commonwealth

v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011).           Prior to addressing a

discretionary challenge, this Court engages in a four-part analysis: 1)

whether the appeal is timely; 2) whether Appellant preserved his issue; 3)

whether Appellant’s brief contains a concise statement of the reasons relied

upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f); and 4) whether

that   statement   raises   a   substantial   question   that   the   sentence   is

inappropriate under the sentencing code. See Commonwealth v. Austin,

66 A.3d 798, 808 (Pa. Super. 2013); see also Pa.R.A.P. 2119(f).

       Appellant timely filed a notice of appeal, preserved his claim in a post-

sentence motion, and included in his brief an appropriate Pa.R.A.P. 2119(f)

statement.    We must now determine whether he has raised a substantial

question that the sentence is inappropriate under the sentencing code and, if

so, review the merits.

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     A substantial question must be evaluated on a case-by-case basis.

Commonwealth v. Anderson, 830 A.2d 1013, 1018 (Pa. Super. 2003).           A

substantial question exists only where the Appellant advances a colorable

argument that the sentencing judge’s actions were either inconsistent with a

specific provision of the Sentencing Code, or contrary to the fundamental

norms which underlie the sentencing process. Commonwealth v. Sierra,

752 A.2d 910, 913 (Pa. Super. 2000). A claim that a sentence is manifestly

excessive many raise a substantial question if Appellant’s Pa.R.A.P. 2119(f)

statement sufficiently articulates the manner in which the sentence was

inconsistent with the Code or contrary to its norms.    Commonwealth v.

Mouzon, 812 A.2d 617, 627-28 (Pa. 2002).

     In his Pa.R.A.P. 2119(f) statement, Appellant asserts that the court’s

imposition of a sentence of thirty-six to seventy-two months of incarceration

was manifestly excessive and clearly unreasonable in that it was not

individualized and was within the aggravated range without sufficient reason

being expressed by the court.    See Appellant’s Brief at 3.   Appellant also

asserts that the court ignored several mitigating factors presented by

counsel at the time of sentencing. Id. at 4.

     A claim that the court erred in imposing an aggravated range sentence

without consideration of mitigating circumstances raises a substantial

question.   See Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa.

Super. 2003) (en banc).      Accordingly, we may consider the merits of

Appellant’s argument.

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      Sentencing is a matter vested in the sound discretion of the
      sentencing judge and a sentence will not be disturbed on appeal
      absent an 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. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (internal

citation omitted). Pursuant to statute,

      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 defendant.

42 Pa.C.S.A. § 9721(b).       The trial court is required to consider the

sentencing guidelines. See Commonwealth v. Bonner, 135 A.3d 592, 604

(Pa. Super. 2016), appeal denied, 145 A.3d 161 (Pa. 2016).

      Appellant was sentenced within the guidelines, although in the

aggravated range.     Accordingly, we vacate only if Appellant’s sentence

involves circumstances where the application of the guidelines would be

clearly unreasonable. 42 Pa.C.S. § 9781(c)(2).

      Appellant argues that the sentencing court ignored the mitigating

factors presented at the hearing, including 1) Appellant’s sincere remorse for

his conduct; 2) Appellant had cooperated with authorities, admitted his guilt

by confessing, and implicated a co-defendant who was subsequently

prosecuted; and 3) Appellant pleaded guilty.      See Appellant’s Brief at 6.




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Further, Appellant argues the court relied upon impermissible factors such as

Appellant’s prior record score.

      However, trial courts are permitted to “use prior conviction history and

other factors already included in the guidelines if[] they are used to

supplement other extraneous sentencing information.” Commonwealth v.

Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006) (citation omitted).

Further, our review of the record belies Appellant’s contentions.

      At sentencing, Appellant argued that he felt sincere remorse for his

actions and that he felt terrible for traumatizing the victim.       See N.T.,

4/27/16, at 8. He stated he was willing to take responsibility for his actions.

Id. at 9.

      The sentencing court noted that it had read the presentence report,

sentencing    guidelines,   and   victim   impact   statement.      See,   e.g.,

Commonwealth v. Fullin, 892 A.2d 843, 849–50 (Pa. Super. 2006) (noting

that where the sentencing judge has the benefit of a pre-sentence report it

is presumed he was aware of and weighted relevant mitigating statutory

factors); see also N.T., 4/27/16, at 12. The court recognized that Appellant

had chosen to plead guilty and had cooperated with investigators; however,

it also noted Appellant had been implicated by a co-defendant and had not

turned himself in. Id. The court specifically noted Appellant’s twenty-one

year long criminal history to explain its disbelief of Appellant’s expression of

remorse and the court’s need to protect the public.       Id.    The court also

noted that Appellant had been on state supervision at the time he committed

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the instant bank robbery. Id. In sum, the aggravating factors outweighed

the mitigating factors. Id. at 15.

      Accordingly, based on the above, the sentencing court did not abuse

its discretion in imposing a sentence in the aggravated range. See Bonner,

961 A.2d at 190.       The court appropriately explained its reasons for

sentencing Appellant and indicated it was aware of the applicable guidelines,

and accordingly, Appellant is not entitled to relief on this claim. See, e.g.,

Shugars, 895 A.2d at 1278-79.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/2017




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