J-A10022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

NATHANIEL WILLIAMS

                            Appellant                  No. 1381 MDA 2014


             Appeal from the Judgment of Sentence July 14, 2014
                In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0001934-2013
                                         CP-67-CR-0006449-2013


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

MEMORANDUM BY MUNDY, J.:                               FILED APRIL 06, 2015

        Appellant, Nathaniel Williams, appeals from the July 14, 2014

aggregate judgment of sentence of 50 to 100 months’ imprisonment

imposed, following an open guilty plea to two counts of simple assault and

one count of endangering the welfare of a child (EWOC).1            After careful

review, we affirm.

        The trial court summarized the relevant factual and procedural

background of this case as follows.

                    Both of the[se] … cases involve [] Appellant’s
              actions toward his children. More specifically, in
              case [CP-67-CR-6449-2013], [] Appellant admitted
              to getting mad at his son N.W. … for “spilling the
              beans.” [] Appellant hit N.W. causing the child to fall
____________________________________________
1
    18 Pa.C.S.A. §§ 2701(a)(1) and 4304(a)(1), respectively.
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              off the bed, which resulted in N.W.’s leg being
              broken. In case [CP-67-CR-1934-2013], [] Appellant
              admitted to grabbing his daughter U.W. … by the
              throat hard enough to leave a red mark.         []
              Appellant again stated he did this because he was
              mad at his daughter for breaking a DVD player.

                    Also in case [CP-67-CR-1934-2013], []
              Appellant admitted that the living conditions at the
              motel where police found his five children were
              unkempt. [] Appellant admitted that black trash
              bags with garbage spilling out of the top littered the
              room; empty food containers were also strewn
              about; dirty dishes and cigarette butts were all over
              the countertops; numerous soiled diapers were
              found on the floor; and that no food or water was
              found with the exception of a small can of noodles
              that all five children were sharing for dinner. Lastly,
              [] Appellant admitted that he left his eleven[-]year[-
              ]old daughter in charge of the four other children
              when he left the motel room.

Trial Court Opinion, 10/8/14, at 2 (internal citations omitted).

        On April 11, 2013, the Commonwealth filed an information at docket

number CP-67-CR-1934-2013, charging Appellant with a total of one count

of aggravated assault2, two counts of simple assault, and six counts of

EWOC.      On October 10, 2013, the Commonwealth filed an information at

docket number CP-67-CR-6449-2013, charging Appellant with one count

each of harassment3, aggravated assault, and simple assault. On July 14,

2014, Appellant entered an open guilty plea to two counts of simple assault,


____________________________________________
2
    18 Pa.C.S.A. § 2702(a)(1).
3
    18 Pa.C.S.A. § 2709(a)(1).



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one at each docket number, and one count of EWOC at docket number CP-

67-CR-1934-2013.         That same day, the trial court imposed an aggregate

sentence of 50 to 100 months’ imprisonment.4 On July 21, 2014, Appellant

filed a timely motion for modification of sentence, which the trial court

denied on August 1, 2014.          On August 12, 2014, Appellant filed a timely

notice of appeal.5

       On appeal, Appellant presents one issue for our review.

              Whether the aggregate sentence of fifty (50) to one
              hundred (100) months[’] incarceration constitutes an
              abuse of discretion when the sentence imposed is
              inconsistent with the gravity of the offenses and
              protection of the public and does not consider
              relevant mitigating factors[?]

Appellant’s Brief at 4.

       At the outset, we note that Appellant’s argument on appeal pertains to

the discretionary aspects of his sentence.        “Pennsylvania law makes clear

that by entering a guilty plea, the defendant waives his right to challenge on

direct appeal all non[-]jurisdictional defects except the legality of the

sentence and the validity of the plea.”          Commonwealth v. Lincoln, 72
____________________________________________
4
  Specifically, at docket number CP-67-CR-1934-2013, the trial court
sentenced Appellant to 16 to 32 months’ imprisonment for simple assault
and 18 to 36 months’ imprisonment for EWOC. At docket number CP-67-
CR-6449-2013, the trial court imposed a sentence of 16 to 32 months’
imprisonment for simple assault. All sentences were to run consecutively.
5
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.




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A.3d 606, 609 (Pa. Super. 2013) (citation omitted), appeal denied, 87 A.3d

319 (Pa. 2014). However, when a defendant’s plea is an open guilty plea,

he or she does not waive claims regarding the discretionary aspects of the

sentence “because there was no agreement as to the sentence [the

defendant] would receive.” Commonwealth v. Hill, 66 A.3d 359, 363 (Pa.

Super. 2013) (citation omitted). Nevertheless, “[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. 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)




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(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.
              [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).

Id.

      In the case sub judice, we note that Appellant filed a timely motion for

modification of sentence and notice of appeal.       We further observe that

Appellant has included a Rule 2119(f) statement in his brief.         Thus, we

proceed to determine whether Appellant has raised a substantial question for

our review.

      “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


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

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

      In this case, Appellant avers that the trial court abused its discretion

based on the following.

            [The sentence is] inconsistent with the rehabilitative
            needs of Appellant; inconsistent with the gravity of
            the offenses as they relate to the impact on the lives
            of the victim and on the community; inconsistent
            with the protection of the public; and exceedingly
            punitive in nature in light of Appellant’s admission of
            guilt and other relevant factors such as Appellant’s
            age and rehabilitative ability.

Appellant’s Brief at 7.

      This Court has long recognized that “an allegation that a sentencing

court … did not adequately consider certain factors does not raise a

substantial question that the sentence was inappropriate.” Commonwealth

v. Johnson, 961 A.2d 877, 880 (Pa. Super. 2008), appeal denied, 968 A.2d

1280 (Pa. 2009); see also Commonwealth v. Bullock, 868 A.2d 516, 529

(Pa. Super. 2005) (stating “a claim of inadequate consideration of mitigating

factors does not raise a substantial question for our review”). Furthermore,

this Court has held that an argument that the trial court failed to consider

certain mitigating factors in favor of a lesser sentence does not present a

substantial question appropriate for our review.         Commonwealth v.

Ratushny,      17   A.3d   1269,    1273    (Pa.   Super.    2011);   accord

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010).              As a




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result, Appellant has failed to a raise a substantial question for our review.6

See Edwards, supra.

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

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

court’s July 14, 2014 judgment of sentence is affirmed.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/2015




____________________________________________
6
  Even if we were permitted to address the merits, Appellant would not be
entitled to relief. We note that Appellant waived the preparation of a PSI for
the two docket numbers in this appeal. N.T., 7/14/14, at 18. Furthermore,
the trial court states that “[a]ll relevant factors were considered, including
that pre-sentence report prepared for an unrelated case[, but a sentence
imposed at the same proceeding with those in this appeal], the gravity of
the offenses, protection of the public, and mitigating factors[.]” Trial Court
Opinion, 10/8/14, at 6.



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