J-S18032-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DAMAL CLARK

                            Appellant                 No. 1870 EDA 2014


              Appeal from the Judgment of Sentence May 29, 2014
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0002113-2013
                                          CP-39-CR-0004198-2013


BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                             FILED MARCH 13, 2015

        Appellant, Damal Clark, appeals from the May 29, 2014 aggregate

judgment of sentence of 12 to 25 years’ imprisonment, imposed after he

pled guilty to one count of possession of a firearm prohibited and pled nolo

contendere to eight counts of robbery and one count of criminal conspiracy.1

After careful review, we affirm.

        We summarize the relevant procedural history of this case as follows.

On March 28, 2014, Appellant entered the above pleas in the trial court.

Appellant and the Commonwealth entered into a partial negotiated plea

agreement insofar that the minimum sentence would be 12 years. However,

there was no agreement as to the maximum sentence. On May 29, 2014,
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1
    18 Pa.C.S.A. §§ 6105(a)(1), 3701(a)(1)(ii), and 903(c), respectively.
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the trial court honored the plea agreement and sentenced Appellant to an

aggregate sentence of 12 to 25 years’ imprisonment.            On June 9, 2014,

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

the next day, June 10, 2014.          On June 30, 2014, Appellant filed a timely

notice of appeal.2

       On appeal, Appellant raises the following issues for our review.

              I.     Whether there is a substantial question for
                     which this Honorable Court should grant
                     allowance of appeal from [the] discretionary
                     aspects of sentencing?

              II.    Whether the trial court erred in sentencing
                     [Appellant] to a harsh and excessive sentence
                     when the [trial] court failed to consider
                     mitigating     factors    contained      within
                     [Appellant]’s pre-sentence investigation report
                     [(PSI)]?

Appellant’s Brief at 4.

       At the outset, we note that Appellant’s arguments on appeal pertain to

the discretionary aspects of his sentence.           It is axiomatic that in this

Commonwealth, “[t]here is no absolute right to appeal when challenging the

discretionary aspect of a sentence.”           Commonwealth v. Tobin, 89 A.3d

663, 666 (Pa. Super. 2014) (citation omitted). When an appellant forwards

an argument pertaining to the discretionary aspects of the sentence, this

Court considers such an argument to be a petition for permission to appeal.
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2
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014)

(en banc) (citation omitted), appeal denied, 104 A.3d 1 (Pa. 2014). “[A]n

[a]ppeal is permitted only after this Court determines that there is a

substantial question that the sentence was not appropriate under the

sentencing code.” Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.

Super. 2013) (en banc) (internal quotation marks and citation omitted).

      Prior to reaching the merits of a discretionary aspects of sentencing

issue, this Court is required to conduct a four-part analysis to determine

whether   a     petition   for   permission   to   appeal   should   be   granted.

Commonwealth v. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014)

(citation omitted), appeal denied, 99 A.3d 925 (Pa. 2014). Specifically, we

must determine the following.

              (1) [W]hether 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.
              [708]; (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).

Id.

      In the case sub judice, we note that Appellant filed a timely post-

sentence motion and notice of appeal.         We further observe that Appellant

has included a Rule 2119(f) statement in his brief. In this case, Appellant

avers that the trial court abused its discretion when it “sentenced him in the


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aggravated range of the sentencing guidelines in nine of ten counts without

stating legitimate reasons for doing so and without taking into consideration

the possible mitigating factors contained within his [PSI].” Appellant’s Brief

at 10. To the extent Appellant argues that the trial court did not state its

reasons for sentencing in the aggravated range, Appellant did not raise this

issue in either his post-sentence motion or his Rule 1925(b) statement.

Therefore, his argument pertaining to said issue is waived.3 See generally

Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (stating, “[a]ny

issues not raised in a Pa.R.A.P. 1925(b) statement will be deemed

waived[]”); accord Pa.R.A.P. 1925(b)(4)(vii); Pa.R.A.P. 302(a) (stating,

“[i]ssues not raised in the lower court are waived and cannot be raised for

the first time on appeal[]”).            Therefore, the only preserved issue in

Appellant’s post-sentence motion and his Rule 1925(b) statement is that the

trial court failed to consider Appellant’s young age.      Thus, we proceed to




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3
  In addition, it is axiomatic that the sentencing guidelines only speak to
minimum sentences. Commonwealth v. Kleinicke, 895 A.2d 562, 573
(Pa. Super. 2006) (en banc), appeal denied, 929 A.2d 1161 (Pa. 2007);
accord 204 Pa. Code § 303.9(e) (stating, “[a]ll numbers in sentence
recommendations suggest months of minimum confinement pursuant to 42
Pa.C.S.   §    9755(b)    (partial  confinement)   and    § 9756(b)   (total
confinement)”).




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determine whether this argument has raised a substantial question for our

review.4

       “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Edwards, 71 A.3d

323, 330 (Pa. Super. 2013) (citations omitted), appeal denied, 81 A.3d 75

(Pa. 2013). “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.”          Id.

(citations omitted). “Additionally, we cannot look beyond the statement of

questions presented and the prefatory 2119(f) statement to determine

whether a substantial question exists.”          Commonwealth v. Provenzano,

50 A.3d 148, 154 (Pa. Super. 2012).

        As noted above, Appellant’s sole preserved argument is that the trial

court failed to take into account Appellant’s young age. Appellant’s Brief at

10. This Court has consistently held that the trial court’s alleged failure to

consider mitigating factors does not raise a substantial question for our
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4
  We reject the Commonwealth’s argument that Appellant’s claim is
unreviewable on the ground that he received a negotiated minimum
sentence. Although that is true, all parties acknowledge there was no
agreement as to the maximum sentence. When this happens, this Court has
explicitly permitted challenges to the discretionary aspects of sentencing
regarding the maximum sentence imposed. Commonwealth v. Brown,
982 A.2d 1017, 1019 (Pa. Super. 2009), appeal denied, 930 A.2d 726 (Pa.
2010).



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review.    Commonwealth v. Ratushny, 17 A.3d 1269, 1273 (Pa. Super.

2011); accord Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super.

2010). Therefore, we cannot address the merits of Appellant’s claim. See

Edwards, supra.

       Based on the foregoing, we deny Appellant’s petition for permission to

appeal the discretionary aspects of his sentence.5      Accordingly, the trial

court’s May 29, 2014 judgment of sentence is affirmed.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/2015




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5
  Even if we were to address the merits, we note that the trial court did have
the benefit of a PSI and stated on the record that it had considered the
same. N.T., 5/29/14, at 2. When a trial court has the benefit of a PSI
report, we presume that it “was aware of the relevant information regarding
the defendant’s character and weighed those considerations along with
mitigating statutory factors.” Commonwealth v. Walls, 926 A.2d 957, 967
n.7 (Pa. 2007). Therefore, we would conclude Appellant’s argument is
without merit.



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