J-S63036-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JORDAN LEE BOYERS,

                            Appellant                  No. 942 MDA 2014


            Appeal from the Judgment of Sentence January 29, 2014
               in the Court of Common Pleas of Lebanon County
               Criminal Division at No.: CP-38-CR-0001637-2011


BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED FEBRUARY 24, 2015

        Appellant, Jordan Lee Boyers, appeals from the judgment of sentence

imposed following his guilty plea to aggravated assault, simple assault and

recklessly endangering another person (REAP).1             Appellant claims his

sentence is excessive. We affirm.

        On May 30, 2012, Appellant entered a counseled open guilty plea to

the three counts noted.         (See N.T. [Guilty Plea], 5/30/12, at 1-5).   On

January 29, 2014, after the remand, the court re-sentenced Appellant to an


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*
    Retired Senior Judge assigned to the Superior Court.
1
 This case returns to us after remand. See Commonwealth v. Boyers, 96
A.3d 1086 (Pa. Super. 2014) (unpublished memorandum); see also
Commonwealth v. Boyers, 87 A.3d 380 (Pa. Super. 2013) (unpublished
memorandum).
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aggregate term of not less than two years nor more than eight years’

incarceration in a state correctional institution, with credit for time served.2

(See Order, 1/29/14, at unnumbered pages 1-2).

       Appellant timely filed a counseled post-sentence motion.              The

Commonwealth filed a brief in opposition. On May 20, 2014, the trial court

denied the motion and affirmed the sentencing order of January 29, 2014, in

an order with accompanying opinion. This timely appeal followed.3

       Appellant raises one question for our review:

            1. Whether the sentencing judge abused his discretion in
       sentencing Appellant to a minimum of two (2) years to a
       maximum of eight (8) years [?]

(Appellant’s Brief at 3).

       Appellant argues his sentence was excessive for a first offense, and

notes that the victim asked that he not receive a harsh punishment. (See

Appellant’s Brief, at 9-10).
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2
  In the re-sentencing order, the sentencing court merged count 3, REAP,
with count 1, aggravated assault, resolving the issue for which the case was
remanded. Because the sentence for count 2, simple assault (not less than
one month nor more than two years’ incarceration in a state correctional
institution) was imposed concurrently, the aggregate sentence was the same
as the sentence for count one, (aggravated assault), viz., not less than two
years’ nor more than eight years’ incarceration in a state correctional
institution.
3
  Appellant timely filed a statement of errors. The trial court filed an order in
lieu of an opinion, referencing its order and opinion of May 20, 2014,
denying Appellant’s post-sentence motion. (See Order 6/10/14).




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     Appellant’s claim challenges the discretionary aspects of his sentence.

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

(citation omitted). Furthermore,

     Appellant challenges the discretionary aspects of sentencing for
     which there is no automatic right to appeal. This appeal is,
     therefore, more appropriately considered a petition for allowance
     of appeal. 42 Pa.C.S.A. § 9781(b). Two requirements must be
     met before a challenge to the judgment of sentence will be
     heard on the merits. First, the appellant must set forth in his
     brief a concise statement of the reasons relied upon for
     allowance of appeal with respect to the discretionary aspects of
     his sentence. Pa.R.A.P. 2119(f). Second, he or she must show
     that there is a substantial question that the sentence imposed is
     not appropriate under the Sentencing Code.          42 Pa.C.S.A.
     § 9781(b)[.]

           The determination of whether a particular issue raises a
     substantial question is to be evaluated on a case-by-case basis.
     Generally, however, in order to establish a substantial question,
     the appellant must show actions by the sentencing court
     inconsistent with the Sentencing Code or contrary to the
     fundamental norms underlying the sentencing process.

Commonwealth v. Marts, 889 A.2d 608, 611–12 (Pa. Super. 2005)

(footnote and case citations omitted).

     Here, Appellant has included a Rule 2119(f) statement.              (See

Appellant’s Brief, at 7). However, the statement consists almost entirely of

a narrative recitation of the sentence, and a brief statutory reference to 42

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Pa.C.S.A. § 9781.          Appellant has failed to meet either of the two

requirements for a review on the merits.4        See Marts, supra at 611-12.

Therefore, Appellant’s statement fails to raise any substantial question that

his sentence is not appropriate under the Sentencing Code or the

fundamental norms underlying the sentencing process. See id.; see also

Commonwealth v. Griffin, 65 A.3d 932, 936 (Pa. Super. 2013), appeal

denied, 76 A.3d 538 (Pa. 2013) (rejecting allegation which failed to raise

substantial question) (collecting cases).

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2015
____________________________________________


4
  Even if we were to determine that the statement did raise a substantial
question, we would find no merit to the underlying allegation. See Griffin,
infra at 937. The sentencing court had the benefit of a Presentence
Investigation Report, and sentenced Appellant to a sentence near the
minimum of the standard range. (See N.T. [Sentencing], 11/21/12, at 5;
see also Trial Court Opinion, 6/10/14, at 7-8). Appellant rammed his
girlfriend/victim’s car until it spun out, dragged her from the car and
assaulted her physically until the police arrived. (See Trial Court Opinion,
5/20/14, at 2-3). The court expressed concern that Appellant had used his
vehicle as a weapon, making him a risk not only to the victim in particular,
but also to the general population. (See N.T. [Sentencing], 11/21/12, at 4).
We discern no basis for a finding of abuse of discretion.




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