J-S02021-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellee              :
                                         :
              v.                         :
                                         :
 VICTOR D. STEELE                        :
                                         :
                   Appellant             :        No. 936 MDA 2019

       Appeal from the Judgment of Sentence Entered May 23, 2019
            In the Court of Common Pleas of Dauphin County
          Criminal Division at No(s): CP-22-CR-0002119-2018

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellee              :
                                         :
              v.                         :
                                         :
 VICTOR D. STEELE                        :
                                         :
                   Appellant             :        No. 937 MDA 2019

       Appeal from the Judgment of Sentence Entered May 23, 2019
            In the Court of Common Pleas of Dauphin County
          Criminal Division at No(s): CP-22-CR-0004004-2018


BEFORE: BENDER, P.J.E., KING, J., and MUSMANNO, J.

MEMORANDUM BY KING, J.:                          FILED JANUARY 22, 2020

      Appellant, Victor D. Steele, appeals from the judgment of sentence

entered in the Dauphin County Court of Common Pleas, following his open

guilty pleas to three counts of robbery, two counts of simple assault, and one

count each of terroristic threats, disorderly conduct, and possession of drug

paraphernalia (see 18 Pa.C.S.A. §§ 3701(a)(1)(ii), (iv), (v); 2701(a)(1), (3);
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2706(a)(1); 5503(a)(1); 35 P.S. § 780-113(a)(32), respectively). We affirm.

      The relevant facts and procedural history of this case are as follows. In

April 2018, Appellant committed several robberies within twenty-four hours in

Harrisburg.   The Commonwealth charged Appellant with multiple counts of

robbery, simple assault, and related offenses at docket No. CP-22-CR-

0002119-2018 (“docket 2119-2018”) and docket No. CP-22-CR-0004004-

2018 (“docket 4004-2018”).      On March 12, 2019, Appellant entered open

guilty pleas at both docket numbers.

      With the benefit of a pre-sentence investigation (“PSI”) report, the court

conducted Appellant’s sentencing hearing on May 23, 2019. At the conclusion

of the hearing, the court sentenced Appellant to eight (8) to sixteen (16)

years’ imprisonment, plus a consecutive term of five (5) years of state

probation, at docket 2119-2018. At docket 4004-2018, the court sentenced

Appellant to two (2) to four (4) years’ imprisonment, to run consecutive to

the sentence at docket 2119-2018. In sum, the court imposed an aggregate

sentence of ten (10) to twenty (20) years’ imprisonment, followed by five (5)

years’ state probation.

      Appellant timely filed a post-sentence motion on May 31, 2019, claiming

the court imposed an “unduly harsh” sentence “without considering

[Appellant’s] history and characteristics.”     (Post-Sentence Motion, filed

5/31/19, at 1). On June 3, 2019, the court denied post-sentence relief.

      On June 7, 2019, Appellant timely filed separate notices of appeal at


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each underlying docket.            Upon application by Appellant, this Court

consolidated the appeals. On June 11, 2019, the court ordered Appellant to

file a concise statement of errors complained of on appeal, pursuant to

Pa.R.A.P. 1925(b). Appellant timely filed a Rule 1925(b) statement on June

18, 2019.

       Appellant raises one issue for our review:

          WHETHER THE TRIAL COURT COMMITTED AN ABUSE OF
          DISCRETION WHEN IT SENTENCED [APPELLANT] TO AN
          AGGREGATE PERIOD OF INCARCERATION OF NOT LESS
          THAN TEN (10) YEARS TO NO MORE THAN TWENTY (20)
          YEARS AT A STATE CORRECTIONAL INSTITUTE?

(Appellant’s Brief at 4).

       Appellant argues the court imposed a sentence that is inconsistent with

the protection of the public, the gravity of the offenses, and Appellant’s

rehabilitative needs. Appellant asserts the sentencing court failed to consider

his personal history and circumstances, including his drug use at the time of

the offenses.     Appellant insists the court imposed a manifestly excessive

sentence that is too severe a punishment. As presented, Appellant’s challenge

implicates the discretionary aspects of his sentence.1 See Commonwealth

____________________________________________


1  “[W]hile a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of his…sentence other than
to argue that the sentence is illegal or that the sentencing court did not have
jurisdiction, open plea agreements are an exception in which a defendant will
not be precluded from appealing the discretionary aspects of the sentence.”
Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa.Super. 2005). “An
‘open’ plea agreement is one in which there is no negotiated sentence.” Id.



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v. DiClaudio, 210 A.3d 1070, 1074 (Pa.Super. 2019) (stating claim that

sentence is manifestly excessive and not tailored to appellant’s rehabilitative

needs challenges discretionary aspects of sentencing).

       Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910,

912 (Pa.Super. 2000).          Prior to reaching the merits of a discretionary

sentencing issue:

          [W]e conduct a four-part analysis to determine: (1) whether
          appellant has filed a timely notice of appeal, see Pa.R.A.P.
          902 and 903; (2) whether the issue was properly preserved
          at sentencing or in a motion to reconsider and modify
          sentence, see 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).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

       When appealing the discretionary aspects of a sentence, an appellant

must also invoke the appellate court’s jurisdiction by, inter alia, including in

his brief a separate concise statement demonstrating that there is a

substantial question as to the appropriateness of the sentence under the

Sentencing Code. Commonwealth v. Mouzon, 571 Pa. 419, 425-26, 812

A.2d 617, 621-22 (2002); Pa.R.A.P. 2119(f).        “The determination of what


____________________________________________


at 363 n.1. Here, Appellant’s pleas were “open” as to sentencing, so he can
challenge the discretionary aspects of his sentence.

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constitutes a substantial question must be evaluated on a case-by-case basis.”

Commonwealth v. Anderson, 830 A.2d 1013, 1018 (Pa.Super. 2003). 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.” Sierra, supra

at 913 (quoting Commonwealth v. Brown, 741 A.2d 726, 735 (Pa.Super.

1999) (en banc), appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001)).

      A claim that a sentence is manifestly excessive might raise a substantial

question if the appellant’s Rule 2119(f) statement sufficiently articulates the

manner in which the sentence imposed violates a specific provision of the

Sentencing Code or the norms underlying the sentencing process. Mouzon,

supra at 435, 812 A.2d at 627.       Nevertheless, as a general rule, “[a]n

allegation that a sentencing court ‘failed to consider’ or ‘did not adequately

consider’ certain factors does not raise a substantial question that the

sentence was inappropriate.” Commonwealth v. Cruz-Centeno, 668 A.2d

536, 545 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195

(1996) (quoting Commonwealth v. Urrutia, 653 A.2d 706, 710 (Pa.Super.

1995), appeal denied, 541 Pa. 625, 661 A.2d 873 (1995)).            See also

Commonwealth v. Kane, 10 A.3d 327, 335-36 (Pa.Super. 2010), appeal

denied, 612 Pa. 689, 29 A.3d 796 (2011) (stating bald claim that sentencing

court “failed to consider” factors set forth in 42 Pa.C.S.A. 9721(b) does not


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raise substantial question). Moreover, where the sentencing court had the

benefit of a PSI report, the law presumes the court was aware of and weighed

relevant information regarding a defendant’s character along with mitigating

statutory factors. Tirado, supra at 366 n.6.

      Instantly, Appellant’s post-sentence motion did not include his specific

argument that the court imposed a manifestly excessive sentence, so that

particular claim is waived.   See Commonwealth v. Griffin, 65 A.3d 932

(Pa.Super. 2013), appeal denied, 621 Pa. 682, 76 A.3d 538 (2013) (explaining

objections to discretionary aspects of sentence are waived if they are not

raised at sentencing hearing or in timely filed post-sentence motion).

Although Appellant properly preserved his claim that the court did not consider

his personal history and circumstances, Appellant’s claim does not raise a

substantial question. See Cruz-Centeno, supra. Moreover, the court had

the benefit of a PSI report. (See N.T. Sentencing Hearing, 5/23/19, at 2, 7.)

Therefore, we can presume the court considered the relevant information and

mitigating factors.

      Further, the court explained its sentencing decision as follows:

         As is [the sentencing c]ourt’s standard practice, it read the
         [PSI report] which provided the relevant background of
         Appellant. Additionally, at sentencing [the c]ourt allowed
         not only Appellant to speak on his behalf, but also
         Appellant’s wife. Each of their statements were considered
         by [the c]ourt. However, they were simply not enough for
         [the c]ourt to depart so drastically from the sentencing
         guidelines by providing a sentence below the standard
         guideline, as defense counsel requested at sentencing.
         Appellant’s counsel argued that [the] mitigating factors

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          were that Appellant suffered from diabetes and that he
          served as a caretaker for his wife, who at the time of
          sentencing suffered from cancer. In arriving at Appellant’s
          sentence, [the c]ourt’s main concern was rendering a
          sentence that was consistent with the protection of the
          public. The fact that Appellant was being sentenced for
          multiple charges of robbery was an immediate concern to
          [the c]ourt because of the concern for public safety.
          Additionally, one of the victims submitted a victim impact
          statement, which detailed how the incident affected her
          everyday life and her inability to lower her defenses for fear
          that this same situation could happen again. In considering
          these factors along with Appellant’s rehabilitative needs, we
          believe we provided the most appropriate sentence given
          the circumstances.

(Trial Court Opinion, filed August 6, 2019, at 3-4) (internal citation omitted).

Here,    the   record   confirms   the   court   properly   balanced   Appellant’s

circumstances with the severity of the offenses and the need to protect the

public. Based upon the foregoing, Appellant is not entitled to relief on his

challenge to the discretionary aspects of sentencing. Accordingly, we affirm.

        Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/22/2020




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