J-S90021-16 & J-S90022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA
                        Appellee

                   v.

TERRANCE HILL

                        Appellant               No. 3297 EDA 2015


        Appeal from the Judgment of Sentence Dated May 29, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0002472-2014

COMMONWEALTH OF PENNSYLVANIA               IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA
                        Appellee

                   v.

TERRANCE HILL

                        Appellant               No. 3298 EDA 2015


        Appeal from the Judgment of Sentence Dated May 29, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0002454-2014


BEFORE: OTT, J., SOLANO, J., and JENKINS, J.

MEMORANDUM BY SOLANO, J.:                  FILED DECEMBER 30, 2016

     Appellant Terrance Hill appeals from the judgments of sentence

imposed by the Court of Common Pleas of Philadelphia following his

convictions at Docket Nos. CP–51–CR–0002454-2014 and CP–51–CR–

0002472–2014. Appellant challenges the discretionary aspects of his

sentences. We affirm.
J-S90021-16 & J-S90022-16


       At Docket No. CP-51-CR-0002454-2014, Appellant was charged with

robbery (18 Pa.C.S. § 3701(a)(1)(ii)), conspiracy to commit robbery (18

Pa.C.S. § 903(c)), and related offenses. These charges related to a

January 18, 2014 gunpoint robbery of a restaurant at 3000 Island Avenue in

Philadelphia. N.T., 4/17/14, at 4.

       At Docket No. CP-51-CR-0002472-2014, Appellant was again charged

with robbery, conspiracy to commit robbery, and related offenses. These

charges related to a January 23, 2014 gunpoint robbery of a restaurant at

4201 Market Street in Philadelphia. N.T., 4/17/14, at 5.

       The trial court dealt at the same time with the charges in each case.

On April 17, 2014, Appellant entered an open guilty plea to one count of

robbery and one count of conspiracy to commit robbery in each case. The

trial court held a sentencing hearing in the two cases on May 29, 2015. 1 At

that hearing, Appellant’s counsel emphasized that Appellant had “a

tremendous amount of family support.” N.T., 5/29/15, at 4. Appellant

apologized, said he accepted full responsibility, and assured the court, “if

you let me go today, I promise you you’ll never see me in here again.” Id.

at 5. The Commonwealth noted that, although Appellant had a prior record

score of zero, he had previously been adjudicated delinquent and failed to

follow the conditions of his probation. Id. at 6. Six months after his release
____________________________________________


1
 The sentencing hearing was continued several times while the trial court
awaited the necessary reports.



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from the juvenile facility, he stole his aunt’s car and committed the two

gunpoint robberies at issue here. Id. at 7. While in jail, he was criminally

charged with making a weapon (a shank). Id.

       At the conclusion of the sentencing hearing, the trial court sentenced

Appellant to 5 to 10 years’ imprisonment, followed by 10 years’ probation for

each count of robbery and each count of conspiracy to commit robbery. All

sentences were concurrent.2 The court explained the reasons for its sentence

as follows:

       Taking into consideration [that Appellant] pled guilty, taking into
       consideration that no one was injured during the course of these
       robberies, taking into consideration that guns were used to rob
       the victims, taking into consideration [that Appellant] produced a
       weapon while in custody, taking into consideration that
       [Appellant] is a danger or threat to society, and I fashion a
       sentence to punish [Appellant,] to protect society[,] and in an

____________________________________________


2
  At the same sentencing hearing, Appellant also was sentenced for offences
charged at two other docket numbers that are not now before this Court.
No. CP-51-CR-000417-2014 dealt with Appellant’s theft of his aunt’s car, for
which he received a concurrent sentence of three and one-half to seven
years’ incarceration for theft by unlawful taking and fleeing or attempting to
elude police officers. No. MC-51-CR-0041515-2014 dealt with the shank
incident, for which Appellant received a consecutive sentence of five years’
probation for possessing a weapon for escape in a correctional institution.
Thus, the aggregate sentence imposed on May 29, 2015 was 5 to 10 years’
incarceration, followed by 15 years’ probation. The appeals now before this
Court address only the robbery and conspiracy to commit robbery
convictions, for which the aggregate sentence was 5 to 10 years’
incarceration, followed by 10 years’ probation. Appellant separately appealed
the judgment of sentence at No. CP-51-CR-000417-2014, but we dismissed
that appeal because Appellant failed to file a brief. See No. 3256 EDA 2015
(Pa. Super.).




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       attempt to rehabilitate him — based on his past, I think a state
       sentence is mandated. I’ll impose a state sentence.

N.T., 5/29/15, at 9-10.

       On June 2, 2015, Appellant filed a Motion to Reconsider Sentence in

which he argued that, given his age and family support, the trial court

abused its discretion when it sentenced him above the aggravated range in

the sentencing guidelines. See Motion to Reconsider Sentence, 6/2/15, at ¶

4.3 On October 6, 2015, Appellant’s motion was denied by operation of law

pursuant to Criminal Rule 720(B)(3).

       Appellant filed a timely notice of appeal in each case and filed separate

briefs that are similar, but not identical. The Commonwealth filed one brief in

response. Because of the similarity of the issues, we address both appeals

together in this memorandum.

       In his brief relating to his conviction at No. CP-51-CR-0002472-2014

(docketed in this Court at No. 3297 EDA 2015), Appellant raises the

following issue:

       Whether the court’s sentence of five to ten (5-10) years’
       incarceration followed by fifteen (15) years[’] probation violated

____________________________________________


3
  Appellant filed the same motion in each case. The guidelines suggested a
standard range minimum sentence of 40 to 54 months, and an aggravated
minimum sentence of up to 66 months, for each robbery. N.T., 5/29/15, at
3. Thus, the five to ten-year prison portion of Appellant’s sentence was
consistent with the aggravated minimum suggested by the guidelines, and
the ten-year probationary period caused the sentence to exceed the
guidelines.



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J-S90021-16 & J-S90022-16


       Pa.R.Crim.P. § 702 and [42] Pa.C.S. § 9742(b), constituting an
       abuse of discretion?

Appellant’s Brief, No. 3297 EDA 2015, filed 4/11/16 (“Appellant’s 3297

Brief”), at 5. In his brief relating to his conviction at No. CP-51-CR-0002454-

2014 (docketed in this Court at No. 3298 EDA 2015),4 Appellant states his

issue as follows:

       Whether the court’s sentence of five to ten (5-10) years’
       incarceration followed by fifteen (15) years[’] probation violated
       [42] Pa.C.S. § 9721(b), constituting an abuse of discretion?

Appellant’s Brief, No. 3298 EDA 2015, filed 9/16/16 (“Appellant’s 3298

Brief”), at 5.

       In each appeal, Appellant challenges the discretionary aspects of his

sentence, an issue which is not appealable as of right. See Commonwealth

v. Colon, 102 A.3d 1033, 1042 (Pa. Super. 2014), appeal denied, 109

A.3d 678 (Pa. 2015). Before we exercise jurisdiction to reach the merits of

Appellant’s issues, we must determine: (1) whether his appeals are timely;

(2) whether Appellant preserved his issues; (3) whether Appellant’s briefs

include a concise statement of the reasons relied upon for allowance of an

appeal with respect to the discretionary aspects of his sentences; and (4)
____________________________________________


4
   Because Appellant did not file a timely brief at No. 3298 EDA 2015, we
dismissed that appeal on May 26, 2016. Upon Appellant’s application for
relief, we reinstated the appeal on June 20, 2016. When Appellant again
failed to file a timely brief, we again dismissed the appeal. Appellant then
filed a second application for relief, which this Court granted, reinstating the
appeal on September 15, 2016. Appellant filed his brief on September 16,
2016.



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whether the concise statements raise substantial questions regarding the

sentences’ impropriety under the Sentencing Code. Id. at 1042-43. Only if

the appeals satisfy each of these four requirements may we proceed to

decide the substantive merits of Appellant’s claims. Id. at 1043.

       Here, Appellant filed a timely notice of appeal in each case, included

concise statements of the reasons relied upon for allowance of appeal in his

briefs, and raised substantial questions. See Commonwealth v. Dodge, 77

A.3d 1263, 1272 n.8 (Pa. Super. 2013) (“arguments that the sentencing

court failed to consider the factors proffered in 42 Pa.C.S. § 9721 . . .

present a substantial question”), appeal denied, 91 A.3d 161 (Pa. 2014);

Commonwealth v. Goggins, 748 A.2d 721, 727-28 (Pa. Super.) (en banc)

(claim that court imposed sentence without presentence report or other

equivalent source of information presents substantial question), appeal

denied, 759 A.2d 920 (Pa. 2000).5



____________________________________________


5
  In his Statement of Questions Involved in his brief filed in 3297 EDA 2015,
Appellant claims that the trial court violated Pa.R.Crim.P. 702 by failing to
order a presentence investigation report or conduct a comparable
presentence inquiry. This claim is not mentioned in his concise statement in
that brief. However, the Commonwealth does not object on this basis.
Therefore, Appellant’s failure to include the claim in his concise statement
does not preclude this Court from reviewing it. See Commonwealth v.
Campion, 672 A.2d 1328, 1334 (Pa. Super.) (where Commonwealth does
not object to lack of a statement and where this Court’s ability to review the
merits of a claim is not precluded by the lack of a statement, we may
consider the merits), appeal denied, 681 A.2d 1340 (Pa. 1996).



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      The Commonwealth argues, however, that Appellant failed to satisfy

the second Colon requirement — preservation of his claims — because the

claim raised in his motion to reconsider his sentence differed from the claims

raised in the instant appeals. We agree. In his motion to reconsider his

sentence, Appellant argued, “Considering Petitioner[’]s age and family

support, Your Honor abused your discretion when you sentenced Petitioner

above the aggravated range of his sentence.” Motion to Reconsider Sentence

at ¶ 4. As this Court has explained, a claim “that the court failed to consider

facts of record, though necessarily encompassing the factors of § 9721” of

the Sentencing Code, 42 Pa. C.S. § 9721, is different from a claim “that the

sentencing court failed to consider the factors proffered in 42 Pa.C.S. §

9721.” Dodge, 77 A.3d at 1272 n.8. Although a claim that the trial court

failed to consider the factors specified by the Legislature in Section 9721

raises a substantial question justifying allowance of an appeal, a claim that

the court merely failed to consider facts of record does not. See id. Here,

Appellant preserved only a claim that the trial court failed to consider facts

of record; he did not preserve a claim that the court failed to comply with

Section 9721. He therefore failed to preserve an issue on which we may

exercise jurisdiction.

      Nonetheless, even if Appellant had properly preserved his claim, he

would not be entitled to relief. Sentencing is vested in the sound discretion

of the sentencing judge, and a sentence will not be disturbed on appeal


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absent a manifest abuse of discretion. Commonwealth v. Zirkle, 107 A.3d

127, 132 (Pa. Super. 2014), appeal denied, 117 A.3d 297 (Pa. 2015). An

abuse of discretion is not merely 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.” Id. There is no showing of an abuse of discretion here.

      At the outset, we note that although Appellant frames the issue in

each of his briefs as a challenge to his “sentence of five to ten (5-10) years’

incarceration followed by fifteen (15) years[’] probation,” see Appellant’s

3297 Brief at 5; Appellant’s 3298 Brief at 5, the only judgments of sentence

at issue in these appeals are those relating to Appellant’s convictions of

robbery and conspiracy to commit robbery under the two docket numbers

from which these appeals are taken. Appellant’s aggregate sentence for

those crimes was five to ten years’ incarceration, followed by 10 years’

probation. Appellant’s references in his briefs to an aggregate term of 5-10

years’ incarceration, followed by 15 years’ probation relates to the total

period of incarceration and probation for which he was sentenced under the

two docket numbers at issue here and two additional docket numbers under

which he was sentenced for other offenses on the same day (the sentences

for stealing his aunt’s car and for making the shank). See note 2, supra.

Appellant’s sentences under those other two docket numbers are not now


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before us. We note, however, that our holding affirming Appellant’s

sentences would be the same even if Appellant’s aggregate sentence for all

crimes were at issue here.

      A sentencing court must impose a sentence 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. § 9721(b); Commonwealth v. Walls, 926

A.2d 957, 962 (Pa. 2007). This Court has explained:

      In imposing sentence, the trial court is required to consider the
      particular circumstances of the offense and the character of the
      defendant. The trial court should refer to the defendant’s prior
      criminal record, age, personal characteristics, and potential for
      rehabilitation. However, where the sentencing judge had the
      benefit of a presentence investigation report, it will be presumed
      that he or she was aware of the relevant information regarding
      the defendant’s character and weighed those considerations
      along with mitigating statutory factors.

Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa. Super. 2004), aff'd,

891 A.2d 1265 (Pa. 2006); see Commonwealth v. Devers, 546 A.2d 12,

18 (Pa. 1988) (“Where pre-sentence reports exist, we shall continue to

presume that the sentencing judge was aware of relevant information

regarding the defendant’s character and weighed those considerations along

with mitigating statutory factors”). This Court will not disturb the sentencing

court’s discretion where the sentencing court has been informed by a pre-

sentence report and has demonstrated “any degree of awareness of the

sentencing considerations.” Devers, 546 A.2d at 18.


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       In his brief in No. 3297 EDA 2015, Appellant claims that the

sentencing court abused its discretion by failing to order a pre-sentence

investigation or conduct a comparable inquiry, as required by Pa.R.Crim.P.

702. Appellant’s 3297 Brief at 12. The record reveals, however, that the trial

court ordered and received a presentence investigation report before it

sentenced Appellant. This claim therefore is meritless.

       In both briefs, Appellant claims that the sentencing court abused its

discretion by failing to consider all of the factors set forth in the Sentencing

Code at 42 Pa.C.S. § 9721(b). Appellant’s 3297 Brief at 12; Appellant’s 3298

Brief at 12. In his brief at No. 3298 EDA 2015, Appellant implicitly

acknowledges that there was a presentence investigation report, but

contends that the sentencing court did not adequately address that report.

Appellant’s 3298 Brief at 14.6

       We disagree. The trial court had the benefit of a presentence

investigation report and demonstrated an awareness of the Section 9721(b)

____________________________________________


6
  Appellant argues that in his case, as in Commonwealth v. Jones, 565
A.2d 732, 733 (Pa. 1989), the sentencing court erred by focusing nearly
exclusively on the need to punish him and the harm he caused to his
victims. Appellant’s 3297 Brief at 8; Appellant’s 3298 Brief at 7-8. In Jones,
this Court, in an unpublished memorandum, held that the sentencing court
had abused its discretion in imposing an excessive (50 to 100 year)
sentence. See Jones, 565 A.2d at 733. However, the only issue addressed
in the Supreme Court of Pennsylvania’s opinion in Jones was its own
jurisdiction to review this Court’s unpublished decision. Id. The Court
concluded that it lacked such jurisdiction. Id. at 735. We therefore find
Appellant’s reliance on Jones is misplaced.



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factors in its remarks during sentencing. See N.T., 5/29/15, at 9-10 (citing

protection of the public, gravity of the offense, and Appellant’s need for

rehabilitation). Under these circumstances, we presume the sentencing court

“was aware of relevant information regarding the defendant’s character and

weighed those considerations along with mitigating statutory factors.”

Devers, 546 A.2d at 18. We therefore conclude that there was no abuse of

discretion.

      Judgment of sentence affirmed.

Judge Ott joins the memorandum.

Judge Jenkins concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/2016




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