J-S39022-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                      v.

WILLIAM JEROME CAMPBELL

                                                    No. 1525 WDA 2016


          Appeal from the Judgment of Sentence August 16, 2016
               In the Court of Common Pleas of Erie County
           Criminal Division at No(s): CP-25-CR-0003319-2015


BEFORE: BENDER, P.J.E., BOWES AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                                 FILED July 3, 2017

      William Jerome Campbell appeals from the judgment of sentence of

eleven to twenty-two years incarceration, plus three years probation

imposed after he pled guilty to one count each of robbery, possession of an

instrument of crime, simple assault, theft by unlawful taking, and terroristic

threats. We affirm.

      On September 23, 2015, Appellant exploited the kindness of a

stranger, Marshall Breedlove, the victim herein.   At some point during the

day, Appellant asked Mr. Breedlove for money.        Mr. Breedlove provided

Appellant with ten dollars and a coffee.   Later that same day, after using

crack cocaine, Appellant gained entry to Mr. Breedlove’s home under the

false pretense that he needed to use the bathroom.       After infiltrating the


* Retired Senior Judge assigned to the Superior Court.
J-S39022-17



house, Appellant, wielding a knife, attacked Mr. Breedlove. Appellant forced

the victim onto a couch and demanded money. During the ensuing struggle,

Mr. Breedlove sustained knife wounds to his hand and neck.

      On July 6, 2016, Appellant entered an open guilty plea to the

aforementioned offenses.    The court withheld sentencing pending a pre-

sentence investigation report. After receiving that report, the court imposed

a sentence of ten to twenty years for robbery, and imposed consecutively a

sentence of one to two years for terroristic threats and three years probation

for possessing an instrument of crime.    Hence, with the application of the

deadly weapons enhancement, Appellant received an aggregate standard

range sentence of eleven to twenty-two years incarceration followed by

three years probation.

      Appellant filed a timely petition for reconsideration alleging that the

sentence was manifestly excessive and that the court failed to adequately

consider certain mitigating factors.   The court denied the post-sentence

motion and Appellant filed a timely notice of appeal. Appellant and the trial

court complied with the directives of Pa.R.A.P. 1925, and thus, this matter is

now ready for our review.

      Appellant raises one question for our consideration:          “Did the

Sentencing Court commit an abuse of discretion when it imposed a minimum

sentence for robbery and a consecutive sentence for terroristic threats that




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were manifestly excessive, clearly unreasonable and inconsistent with the

objectives of the Sentencing Code?” Appellant’s brief at 8.

      The following principles are relevant to our review. At the outset, we

observe that “[s]entencing is a matter vested in the sound discretion of the

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

manifest abuse of discretion.” Commonwealth v. Proctor, 156 A.3d 261,

273 (Pa.Super. 2017) (citation omitted). Further, “an abuse of discretion is

not shown merely by an error in judgment[, but 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.

      As it pertains to this matter, “there is no absolute right to appeal when

challenging the discretionary aspects of a sentence.”     Commonwealth v.

Smith, 151 A.3d 1100, 1103 (Pa.Super. 2016) (citation omitted). Rather,

such a challenge is considered a petition for allowance of appeal.

Commonwealth v. Hicks, 151 A.3d 216, 226 (Pa.Super. 2016). In order

to invoke this Court’s jurisdiction, an appellant must satisfy a four-part test.

That test requires us to determine:

            (1) whether appellant has filed a timely notice of appeal;
            (2) whether the issue was properly preserved at
            sentencing or in a motion to reconsider and modify
            sentence; (3) whether appellant’s brief has a fatal defect
            under Pa.R.A.P. 2119(f); and (4) whether there is a

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            substantial question that the sentence appealed from is
            not appropriate under the Sentencing Code.

Id.

      Here, Appellant filed a timely notice of appeal and a timely petition for

reconsideration of his sentence.     Appellant also attached a Rule 2119(f)

concise statement of reasons relied upon for allowance of appeal to his brief.

Hence, we need only consider whether he has raised a substantial question

that his sentence was inappropriate under the sentencing code.

      We determine whether an appellant has proposed a substantial

question on a case-by-case basis. Commonwealth v. Popielarcheck, 151

A.3d 1088, 1093 (Pa.Super. 2016). Moreover, 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. (citation omitted).

      Appellant   purports   to   present   a   two-front   assault   upon   the

discretionary aspects of his sentence. First, he asserts that his sentence was

manifestly excessive and clearly unreasonable since the court did not

properly consider the protection of the public, the gravity of the offense, and

Appellant’s rehabilitative needs.   Second, Appellant alleges that the court

failed to adequately consider certain mitigating circumstances, namely, his




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remorse, substance abuse history, prior non-violent convictions, cooperation

with police, and the non-life threatening injuries sustained by the victim.

       Instantly, although Appellant argues that his sentence was excessive

because the court failed to appropriately consider the protection of the

public, the gravity of the offense as it relates to the impact on the life of the

victim and the community, and Appellant’s rehabilitative needs, which may

raise a substantial question, his argument does not proceed along these

lines. Rather, Appellant proffers this allegation merely as a disguise for his

true contention that the court failed to properly weigh certain mitigating

factors. Ultimately, his conclusion that that the sentence was excessive and

unreasonable is premised upon the court’s alleged failure to weigh certain

factors that inure to a lighter sentence in Appellant’s favor.     For example,

Appellant suggests that his sentence is unreasonable because Appellant gave

a “genuine expression of remorse, accepted responsibility by pleading guilty,

and had a very dated criminal history.”1 Appellant’s brief at 15. We find this

does not raise a substantial question for our review.

____________________________________________


1
   Further, the sentencing court had the benefit of a pre-sentence
investigation report and expressly discussed the seriousness of Appellant’s
offense and the impact it had on Mr. Breedlove. N.T. Sentencing, 8/16/16,
at 13-14; Commonwealth v. Finnecy, 135 A.3d 1028, 1038 (Pa.Super.
2016) (observing, “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 the mitigating statutory factors.”
(Footnote Continued Next Page)


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      When determining whether a substantial question exists, we focus on

the substance of the argument presented and not on bald assertions that the

sentencing court failed in a particular fashion. Appellant’s masquerade has

not presented a colorable argument that the sentencing judge’s actions were

inconsistent with a specific provision of the sentencing code or contrary to

the   fundamental         norms      which       underlie   the   sentencing   process.

Popielarcheck, supra.           Indeed, we have long held that a claim that the

court did not give proper consideration to mitigating factors does not raise a

substantial question.        Commonwealth v. Kane, 10 A.3d 327, 335-226

(Pa.Super. 2010) (noting, “[t]hat claim, that the court gave inadequate

consideration to certain mitigating factors, does not raise a substantial

question.”). Hence, we will not reach the merits of this appeal.

      Judgment of sentence affirmed.




                       _______________________
(Footnote Continued)

citing Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa.Super. 2013)).
Moreover, Appellant presented the mitigating factors at issue herein before
the sentencing court, and the court discussed them in rendering his
sentence. See N.T. Sentencing, 8/16/16, at 8-10, 13-14. Thus, the record
reveals that the sentencing court did properly consider the relevant statutory
factors, see 42 Pa.C.S. § 9721(b), and weighed those factors which
mitigated in favor of a lighter sentence. Hence, even if Appellant raised a
substantial question, he would not be entitled to relief.



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J-S39022-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/3/2017




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