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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                                         :
                                         :
           v.                            :
                                         :
DAVON C. CHAMBERS                        :
                                         :
                 APPELLANT               :     No. 250 MDA 2016

          Appeal from the Judgment of Sentence February 4, 2015
             In the Court of Common Pleas of Dauphin County
            Criminal Division at No(s): CP-22-CR-0005515-2006

BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY DUBOW, J.:                        FILED OCTOBER 13, 2016

      Appellant, Davon C. Chambers, appeals from the Judgment of

Sentence entered in the Dauphin County Court of Common Pleas on

February 4, 2015, following the revocation of his probation and parole. We

affirm.

      The procedural history relevant to the instant appeal is as follows. On

March 21, 2007, Appellant entered a negotiated guilty plea to two counts of

Statutory Sexual Assault (“Count 1” and “Count 2”), three counts of

Indecent Assault Person Less than 13 Years of Age (“Count 3,” “Count 4,”

and ”Count 5 ”), one count of Indecent Assault Person Less than 16 years of
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Age (“Count 6”), and one count of Corruption of Minors (“Count 7”). 1    On

June 26, 2007, the court sentenced Appellant to an aggregate term of 2 to 4

years’ incarceration, and 10 years’ probation.

      On December 16, 2010, the trial court held a parole and probation

revocation hearing, after which the court revoked Appellant’s sentence at

Count 3, a count for which Appellant initially received a sentence of

probation. The court then re-sentenced Appellant to a 6 to 12 month term of

incarceration. On June 4, 2011, the court granted Appellant’s release.

      On September 15, 2013, Appellant appeared for a second revocation

hearing, following which the court imposed a 23-month intermediate

punishment sentence at Count 4, with the condition that Appellant undergo

sexual offender treatment. The court also sentenced Appellant to a term of

5 years’ probation on Counts 4, 5, and 6.

      After failing to comply with the court’s order to undergo sexual

offender treatment, on February 4, 2015, Appellant appeared for a third

probation and parole revocation hearing. Appellant did not contest that he

failed to complete treatment.       Following the hearing, the trial court

sentenced Appellant on Count 4 to a term of 22 to 44 months’ incarceration,

followed by 5 years’ probation. The trial court credited Appellant 6 months

and 24 days’ for time served.


1
  18 Pa.C.S. § 3122.1, 18 Pa.C.S. § 3126(a)(7), 18 Pa.C.S. § 3126(a)(8),
and 18 Pa.C.S. § 6301(a)(1), respectively.



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        On February 13, 2015, Appellant filed a timely Post-Sentence Motion,

seeking modification of his sentence. The Commonwealth filed a response

on March 2, 2015. Appellant did not file a timely Notice of Appeal from his

February 4, 2015 Judgment of Sentence.               See Pa.R.Crim.P. 708(E)

(providing that, where the trial court sentences a defendant following a

violation of probation, the filing of a timely Post-Sentence Motion does not

toll the running of the 30-day appeal period).

        On March 18, 2015, Appellant filed a pro se Petition pursuant to the

Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-46, seeking the reinstatement

of his post-sentence and direct appeal rights based upon ineffective

assistance of his court-appointed counsel for counsel’s failure to appeal his

February 4, 2015 revocation sentence.           On January 11, 2016, the court

reinstated Appellant’s right to file a Post-Sentence Motion within ten days or

a direct appeal within thirty days.

        On January 14, 2016, Appellant filed a Post-Sentence Motion, and on

February 9, 2016, he filed a Notice of Appeal from the February 4, 2015,

Judgment of Sentence.        The trial court did not rule on Appellant’s Post-

Sentence Motion. Both Appellant and the trial court complied with Pa.R.A.P.

1925.

        Appellant raises the following issue:

           Whether the trial court erred in denying Appellant’s Post
           Sentence Motion where his sentence was excessive and
           unreasonable and constitutes too severe a punishment in
           light of the alleged gravity of the offense, Appellant’s


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         rehabilitative needs, and what is needed to protect the
         public?

Appellant’s Brief at 5.

      A challenge to the discretionary aspects of sentencing is not

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

768 A.2d 1136, 1144 (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 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 Post-Sentence Motion and

Notice of Appeal. He also included a separate Pa.R.A.P. 2119(f) Statement

in his appellate brief. As to whether Appellant has presented a substantial

question, we note:

         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.




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Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations

and quotation omitted).

      Here, Appellant avers in his Rule 2119(f) statement that the sentence

following revocation of his probation was excessive and that the trial court

failed to consider mitigating factors before re-sentencing him.     He claims

that because he missed only two treatment sessions and was gainfully

employed, his probation should not have been revoked.

      An argument that the sentencing court failed to consider mitigating

factors in favor of a lesser sentence does not present a substantial question

appropriate for our review.   Commonwealth v. Hanson, 856 A.2d 1254,

1257-58 (Pa. Super. 2004) (citing Commonwealth v. McNabb, 819 A.2d

54, 57 (Pa. Super. 2003)). See also Commonwealth v. Griffin, 804 A.2d

1, 9 (Pa. Super. 2002) (citing Commonwealth v. Williams, 562 A.2d

1385, 1388 (Pa. Super. 1989) (en banc) (an allegation that the sentencing

court did not adequately consider various factors is, in effect, a request that

this court substitute its judgment for that of the lower court in fashioning a

defendant’s sentence)).

      Moreover, we note that Appellant does not allege that his 22 to 44-

month sentence is outside the statutory maximum sentence.2 Neither does

Appellant point to any specific provision of the Sentencing Code the

2
   As a first degree misdemeanor, the statutory maximum sentence for
Indecent Assault Person Less than 13 Years of Age, 18 Pa.C.S. § 3126(a)(7),
is 5 years. See 18 Pa.C.S. § 1104(1).



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sentencing court ostensibly violated.    Appellant’s bald assertion that his

sentence is excessive does not raise a substantial question.            See

Commonwealth v. Trippett, 932 A.2d 188, 201-203 (Pa. Super. 2007)

(bald allegations of excessiveness insufficient to permit discretionary

review).

     As we find that appellant has failed to raise a substantial question as

to the appropriateness of his sentence, we affirm the Judgment of Sentence.

     Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/13/2016




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