J-S22028-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SHAYLA LYNETTE PIERCE                      :
                                               :
                       Appellant               :   No. 1951 MDA 2019

       Appeal from the Judgment of Sentence Entered November 5, 2019
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0004874-2018


BEFORE:      OLSON, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.:                                  FILED MAY 08, 2020

        Shayla Lynette Pierce (Appellant) appeals from the judgment of

sentence imposed after she pled nolo contendere to two counts each of

possession of a controlled substance with the intent to deliver (PWID), criminal

conspiracy, and endangering the welfare of children.1 Upon review, we affirm.

        On January 18, 2018, officers executed a search warrant at Appellant’s

residence, where Appellant was found with over a pound and a half of

marijuana, more than two ounces of liquid phencyclidine (PCP) — and two

minor children. N.T., 9/23/19, at 4-5.

        On September 23, 2019, Appellant pled nolo contendere to the above

crimes.    The trial court deferred sentencing for the preparation of a pre-
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 903, and 18 Pa.C.S.A. §
4304(a)(1).
J-S22028-20



sentence investigation (PSI) report. On November 5, 2019, the trial court

sentenced Appellant to an aggregate one to three years of incarceration,

followed by two years of probation.

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

denied on November 21, 2019. This timely appeal followed. Both Appellant

and the trial court have complied with Pennsylvania Rule of Appellate

Procedure 1925.

      Appellant presents a single issue for review:

      WHETHER THE COURT ABUSED ITS DISCRETION IN SENTENCING
      APPELLANT TO AN AGGREGATE SENTENCE OF ONE (1) TO THREE
      (3) YEARS OF INCARCERATION WHERE THE SENTENCE IS
      EXCESSIVE AND UNREASONABLE IN LIGHT OF APPELLANT’S
      MENTAL HEALTH ISSUES AND ROLE AS A MOTHER?

Appellant’s Brief at 5.

      Appellant challenges the discretionary aspects of her sentence. “The

right to appellate review of the discretionary aspects of a sentence is not

absolute, and must be considered a petition for permission to appeal.”

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

“An appellant must satisfy a four-part test to invoke this Court’s jurisdiction

when challenging the discretionary aspects of a sentence.” Id. We conduct

this four-part test to determine whether:

      (1) the appellant preserved the issue either by raising it at the
      time of sentencing or in a post[-]sentence motion; (2) the
      appellant filed a timely notice of appeal; (3) the appellant set forth
      a concise statement of reasons relied upon for the allowance of
      appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises
      a substantial question for our review.


                                      -2-
J-S22028-20


Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted). “A defendant presents a substantial question when he sets forth a

plausible argument that the sentence violates a provision of the sentencing

code or is contrary to the fundamental norms of the sentencing process.”

Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citations

omitted).

      Appellant has complied with the first three prongs of the test by raising

her discretionary sentencing claim in a timely post-sentence motion, filing a

timely notice of appeal, and including in her brief a Rule 2119(f) concise

statement. See Appellant’s Brief at 11-12. Therefore, we examine whether

Appellant presents a substantial question for review.

      Appellant argues that her sentence is excessive, and asserts that the

court did not adequately consider her “rehabilitative needs, mental health

requirements, and role as a mother to four children[.]” Appellant’s Brief at

12. Appellant’s claim raises a substantial question. See Commonwealth v.

Swope, 123 A.3d 333, 340 (Pa. Super. 2015) (“This Court has also held that

an excessive sentence claim—in conjunction with an assertion that the court

failed to consider mitigating factors—raises a substantial question.”) (citations

omitted).

      In reviewing Appellant’s claim, we recognize:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge. The standard employed when reviewing the
      discretionary aspects of sentencing is very narrow. We may
      reverse only if the sentencing court abused its discretion or

                                      -3-
J-S22028-20


      committed an error of law. 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. We must accord
      the sentencing court’s decision great weight because it was in the
      best position to review the defendant’s character, defiance or
      indifference, and the overall effect and nature of the crime.

Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (citations

omitted).

      The relevant portion of 42 Pa.C.S.A. § 9721(b) states:

      In selecting from the alternatives set forth in subsection (a), the
      court shall follow the general principle that the sentence imposed
      should call for confinement 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. . . . In every case in which
      the court imposes a sentence for a felony or misdemeanor . . . the
      court shall make as a part of the record, and disclose in open court
      at the time of sentencing, a statement of the reason or reasons
      for the sentence imposed.

Id.

      Additionally:

      [i]n 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. Fowler, 893 A.2d 758, 767-68 (Pa. Super. 2006) (citing

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

                                       -4-
J-S22028-20


     At sentencing, the trial court addressed Appellant, explaining:

     This is not about punishment. It’s trying to find something that
     changes your behavior. I’m just not seeing anything taking you
     off the track that you’ve been on. And then to have these charges,
     which are extremely serious -- as I stated to your counsel,
     basically calling for State incarceration -- from the time of your
     plea to the time of the sentence, I’m not seeing any time that
     you’ve really changed anything. . . . And the evidence-based risk
     assessment puts you in what they call a moderate risk, which is
     probably because of your age. But if we don’t do something,
     you’re going to be spending the rest of your life as a career
     criminal and your children are going to be in and out of foster care
     until they turn 18. And is that how you want your children to be
     raised? . . . What I want to do is give you what it’ll take to turn
     your life around, give you a chance to focus on what you have to
     do so that you can be a better mom so when you come home, you
     get your children, you keep your children, and raise them as a
     good mom. . . .

     I gave you the chance when you were on supervision, because
     these same things that happened pending your sentencing, you
     were actually on probation for. . . . What I’m going to give you is
     the chance you need; it’s not just in the form that you would like.
     . . . I’m going to do it in such a way that you have control as to
     the amount of time that you’re going to have to deal with. You
     can go into this in a positive sort of way or it’ll be a not-so-positive
     sort of way. . . .

     And I’ll try to minimize the minimum sentence that’s going to be
     involved here to give you a chance to really get this squared away.
     All right?    And, again, this is based upon the presentence
     investigation; the facts and circumstances that gave rise to these
     charges; and, again, not ignoring the fact that you didn’t act
     alone. There was in our view someone far more culpable than
     you, but you were a willing participant. And as you stated, you
     seem to get excitement from being with dangerous men. That’s
     what you can’t afford when you have children. Those are your
     words in the presentence investigation, and that’s why I think you
     need the opportunity to get yourself squared away.

N.T., 11/5/19, at 22-24.

     The trial court subsequently opined:

                                      -5-
J-S22028-20


            After reviewing Appellant’s evidence-based Presentence
      Investigation and providing Appellant the opportunity to address
      the court at her sentencing hearing, this [c]ourt imposed an
      aggregate sentence of one to three years of incarceration at a
      state correctional institution, followed by two years of county
      probation. Said sentence is well within Appellant’s sentencing
      guidelines. Additionally, this [c]ourt placed several reasons for
      imposing such a sentence on the record at the time of sentencing.
      Some of those reasons include Appellant’s criminal history dating
      back to when she was a juvenile, her lack of insight and poor
      judgment, the misperception of her case within Dauphin County
      Children and Youth Services, and the fact that she engaged in
      criminal behaviors while on probation (on another docket) and
      pending sentencing on the instant docket. Accordingly, this
      [c]ourt did not abuse its discretion by imposing a one to three
      year sentence of incarceration.

Trial Court Opinion, 1/31/20, at 4.

      Upon review, we discern no error.        “[W]here the sentencing court

imposed a standard-range sentence with the benefit of a pre-sentence report,

we will not consider the sentence excessive.”     Commonwealth v. Corley,

31 A.3d 293, 298 (Pa. Super. 2011). Additionally, “[i]n those circumstances,

we can assume the sentencing court was aware of relevant information

regarding the defendant’s character and weighed those considerations along

with mitigating statutory factors.”    Id.   Here, in addition to reading and

referencing the PSI report, the trial court specifically addressed Appellant’s

rehabilitative needs, the seriousness of her crimes, and the impact of

Appellant’s actions on her children.

      In sum, the record does not support Appellant’s claim that her sentence

is excessive and unreasonable.

      Judgment of sentence affirmed.

                                       -6-
J-S22028-20




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/08/2020




                          -7-
