Com. v. Barnes, F., Jr.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 FRED ORSON BARNES, JR.                  :
                                         :
                   Appellant             :   No. 374 MDA 2020

     Appeal from the Judgment of Sentence Entered January 30, 2020
   In the Court of Common Pleas of Bradford County Criminal Division at
                     No(s): CP-08-CR-0000458-2019


 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 FRED ORSON BARNES                       :
                                         :
                   Appellant             :   No. 861 MDA 2020

     Appeal from the Judgment of Sentence Entered January 30, 2020
   In the Court of Common Pleas of Bradford County Criminal Division at
                     No(s): CP-08-CR-0000459-2019


BEFORE: OLSON, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.:                       FILED MARCH 8, 2021

     Appellant, Fred Orson Barnes, Jr., appeals from the judgment of

sentence, entered January 30, 2020. We affirm.

     The trial court aptly summarized the pertinent facts of this case:

     Appellant entered [guilty] pleas to [t]erroristic [t]hreats, 18
     Pa.C.S.A.  § 2706(a)(1)     [misdemeanor]     1    [at   docket
     CP-08-CR-0000458-2019]; and [d]riving [u]nder the [i]nfluence
     of a [c]ontrolled [s]ubstance, 75 Pa.C.S.A. § 3802(d)(1)(i),
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       [ungraded misdemeanor at docket CP-08-CR-0000459-2019] on
       November 18, 2019. Appellant was sentenced on January 30,
       2020 to a split sentence of incarceration the minimum of which is
       [one] month and the maximum of which is [five] months, 29 days
       followed by 12 months of probation for the offense of [t]erroristic
       [t]hreats and a sentence of incarceration the minimum of which is
       72 hours and a maximum of which is [six] months for the offense
       of [d]riving [u]nder the [i]nfluence of a [c]ontrolled [s]ubstance.
       The sentences imposed were directed to run consecutively to each
       other as well as consecutively to a sentence imposed in the case
       at [CP-08-CR-0000676-2017, a new sentence imposed after the
       court revoked Appellant’s probation on July 29, 2019. The terms
       of the revocation sentence directed Appellant to serve] a minimum
       of [three] months and a maximum of 12 months for the crime of
       [p]ossession of [d]rug [p]araphernalia, 35 P.S. § 780-113(a)(32),
       [misdemeanor].

Trial Court Opinion, 7/14/20, at 1. These appeals followed.1

       Appellant argues that his sentence is excessive.         Specifically, he

contends that the trial court arrived at a “manifestly unreasonable” decision

because “[a] mitigated sentence, or a sentence below the mitigated range

outside of the guidelines, would not be an unreasonable sentence in these

circumstances.” Appellant’s Brief at 9. Appellant’s issue therefore implicates

the discretionary aspects of sentencing. As this Court previously explained:

       Challenges to the discretionary aspects of sentencing do not
       entitle an appellant to review as of right. An appellant challenging
       the discretionary aspects of his sentence must invoke this Court's
       jurisdiction by satisfying a four-part test:


____________________________________________


1. Appellant’s appeal from his conviction and sentence for terroristic threats
is docketed with this Court at 374 MDA 2020. His appeal from his conviction
and sentence for driving under the influence of a controlled substance is
docketed at 861 MDA 2020. Appellant filed two notices of appeal, fulfilling
his obligations pursuant to Commonwealth v. Walker, 

185 A.3d 969

(Pa.
2018).

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         We 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. Griffin, 

65 A.3d 932

, 935 (Pa. Super. 2013) (internal

case citations omitted). Appellant timely appealed his sentence and included

a Rule 2119(f) statement. Appellant, however, failed to preserve his issue or

raise a substantial question to warrant our review on the merits.

      Issues not preserved in the trial court may not be pursued before this

Court. Commonwealth v. Lincoln, 

72 A.3d 606

, 610 (Pa. Super. 2013),

citing Pa.R.A.P. 302(a).   Challenges to the discretionary aspects of a trial

court’s sentence are waived unless raised at the time of sentencing or in a

post-sentence motion. Commonwealth v. Rush, 

959 A.2d 945

, 949 (Pa.

Super. 2008).    To confirm preservation, we look only to those documents

within the certified record.

Id. At the time

of sentencing, Appellant did not raise a discretionary

sentencing challenge or any argument for a mitigated sentence. Indeed, the

only argument raised by counsel for Appellant involved a presupposition of a

standard range sentence.      See, N.T. Sentencing Hearing, 1/30/20, at 2

(counsel stating, “if these are going to be in the standard range . . .”). After

the trial court imposed its sentence, Appellant did not raise any challenge.



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Moreover, the certified record reveals that no post-sentence motions were

filed on Appellant’s behalf. Therefore, in not raising a discretionary sentencing

issue in the trial court, Appellant failed to preserve the issue and waived his

challenge.

      Even if Appellant preserved his issue for appeal, Appellant failed to raise

a substantial question to invoke this Court’s jurisdiction. As this Court has

explained, to establish a substantial question, an “appellant must show actions

by the sentencing court inconsistent with the Sentencing Code or contrary to

the fundamental norms underlying the sentencing process.” Commonwealth

v. Cannon, 

954 A.2d 1222

, 1229 (Pa. Super. 2008). It is settled that a bald

assertion of sentencing errors does not constitute a substantial question.

Commonwealth v. Moury, 

992 A.2d 162

, 170 (Pa. Super. 2010). We have

explained:

      An allegation that the sentencing court failed to consider certain
      mitigating factors generally does not necessarily raise a
      substantial question. Commonwealth v. McNabb, 

819 A.2d 54

,
      57 (Pa. Super. 2003). Accord Commonwealth v. Wellor, 

731 A.2d 152

, 155 (Pa. Super. 1999) (reiterating allegation that
      sentencing court “failed to consider” or “did not adequately
      consider” certain factors generally does not raise substantial
      question. Compare Commonwealth v. Felmlee, 

828 A.2d 1105

, 1107 (Pa. Super. 2003) (en banc) (stating substantial
      question is raised, however, where appellant alleges sentencing
      court imposed sentence in aggravated range without adequately
      considering mitigating circumstances).

      “When imposing a sentence, a court is required to consider the
      particular circumstances of the offense and the character of the
      defendant.” Commonwealth v. Griffin, 

804 A.2d 1

, 10 (Pa.
      Super. 2002), appeal denied, [

868 A.2d 1198

(Pa. 2005)], cert.
      denied, [

545 U.S. 1148

] (2005). “In particular, the court should

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      refer to the defendant’s prior criminal record, his age, personal
      characteristics and his potential for rehabilitation.”

Id. Where the sentencing

court had the benefit of a presentence investigation
      report (“PSI”), 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.” Commonwealth v. Devers, [

546 A.2d 12

, 18 (Pa.
      1988)]. See also Commonwealth v. Tirado, 

870 A.2d 362

, 368
      (Pa. Super. 2005) (stating if sentencing court has benefit of PSI,
      law expects court was aware of relevant information regarding
      defendant’s character and weighed those considerations along
      with any mitigating factors). Further, where a sentence is within
      the standard range of the guidelines, Pennsylvania law views the
      sentence as appropriate under the Sentencing Code.              See
      Commonwealth v. Cruz-Centeno, [

668 A.2d 536

(Pa. Super.
      1995)], appeal denied, [

676 A.2d 1195

(Pa. 1996)] (stating
      combination of PSI and standard range sentence, absent more,
      cannot be considered excessive or unreasonable).


Moury, 992 A.2d, at 171

.

      Here, Appellant asserts that the trial court imposed an excessive

sentence in light of mitigating circumstances, including that Appellant “had a

[zero] prior record score at the time of sentencing, had never been convicted

of a felony offense, [and] had been attending drug and alcohol counseling

sessions with Trinity CASA while incarcerated in the Bradford County

Correction Facility[.]” Appellant’s Brief at 9. This bald assertion essentially

claims that the trial court abused its discretion in fixing Appellant’s punishment

because it failed to consider, or failed to adequately consider, certain

mitigating factors. Such contentions do not raise a substantial question to

invoke our jurisdiction over discretionary sentencing challenges.

      Even if Appellant had raised a substantial question and preserved his

issue such that we would grant review, his appeal lacks merit. Sentencing is


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a matter vested in the sound discretion of the trial court and will not be

disturbed absent a manifest abuse of discretion. Commonwealth v. Blount,

207 A.3d 925

, 934 (Pa. Super. 2019) (citation omitted), appeal denied, 218

A.3d1198 (Pa. 2019).     This is not merely an error in judgment.       Rather,

Appellant must establish, by reference to the record, that the trial 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. at 934-935.

      Appellant argues for a sentence at or below the mitigated range. See

Appellant’s Brief at 9 (arguing such a sentence “would not be an unreasonable

sentence”). However, there is no requirement for the trial court to impose

the “minimum possible confinement” Commonwealth v. Walls, 

926 A.2d 957

, 965 (Pa. 2007). Rather, the trial court need only impose a sentence

consistent with concerns for public protection, gravity of the offense, and the

rehabilitative needs of the defendant.

Id., citing 42 Pa.C.S.A.

§ 9721(b). The

trial court in this case did so. See N.T. Sentencing Hearing, 1/30/20, at 9.

Contrary to Appellant’s argument, the fact that a mitigated sentence could

have been reasonable in this instance does not make the sentence imposed

unreasonable. Appellant failed to cite anything in the record to establish that

the trial court’s reasoning was improper.

      Moreover, the trial court conducted an exhaustive on-the-record

evaluation of Appellant’s presentence investigation (“PSI”) report. See N.T.

Sentencing Hearing, 1/30/20, at 3-4. Because the trial court had a PSI report

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and evaluated it on the record, we presume that it was aware of and weighed

all mitigating considerations when sentencing Appellant.       

Moury, supra

.

Therefore, Appellant’s claim is meritless.

      Accordingly, based upon all of the foregoing, Appellant failed to preserve

his issues or raise a substantial question and, thus, his petition for review of

the discretionary aspects of his sentence must be denied.

      Judgment of sentenced affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/08/2021




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