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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MIKAEL COLES,
Appellant No. 2951 EDA 2013
Appeal from the Judgment of Sentence Entered August 14, 2013
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0003759-2012
BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 30, 2015
Appellant, Mikael Coles, appeals from the aggregate judgment of
sentence of 13-26 years’ incarceration following his guilty plea to charges of
aggravated assault, robbery, burglary, and conspiracy. Appellant presents a
challenge to the discretionary aspects of his sentence. After careful review,
we affirm.
The trial court summarized the facts leading to Appellant’s plea as
follows:
[A]ppellant and his masked confederates entered the
Herod home through a basement window. They located six (6)
members of the family and herded them into an upstairs
bathroom. A seventh family member hid in a closet.
Prior to forcing Jermaine Herod, one of the family
members, into the bathroom, they asked him for the location of
his safe. In doing so, Jermaine Herod was kicked in the head.
He was then placed in the bathroom, and the Commonwealth
alleges that [A]ppellant fired six (6) shots through the door
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striking Jermaine Herod multiple times. [A]ppellant denied that
he fired the weapon. However, a co-defendant implicated him in
that act. The victim also believed [A]ppellant was responsible
for both striking and shooting him. This Court[,] in imposing
sentence, drew no conclusions regarding the shooter.
Jermaine Herod's injuries necessitated his hospitalization
for approximately one (1) month. Bullets are still inside his
body, and he still experiences pain and discomfort from his
wounds. A victim impact statement was read by the Chief
Deputy District Attorney at sentencing.
The motive behind the home invasion was a concert
promotion that failed. Specifically, Jermaine Herod introduced
[A]ppellant to a concert promoter, who was supposed to provide
musicians. [A]ppellant allegedly provided the promoter with a
deposit of $6,000, but the musicians failed to appear.
[A]ppellant, according to Jermaine Herod, was the only
invader known to him. During the invasion, Jermaine Herod's
tuition money, approximately $2,100, was stolen with his wallet.
[A]ppellant indicated that he received $200 from the wallet, and
the wallet was discarded. He was unsure what happened to the
firearm, although the co-defendant indicated that [A]ppellant
discarded a firearm in a river.
Trial Court Opinion, 10/2/14, at 3-4 (footnotes citing to the record omitted).
On May 6, 2013, pursuant to a plea agreement, Appellant entered a
guilty plea to charges of aggravated assault, 18 Pa.C.S. § 2701(a)(1);
Robbery, 18 Pa.C.S. § 3701(a)(1); Burglary, 18 Pa.C.S. § 3502(a); and
conspiracy, 18 Pa.C.S. § 903. A presentence report was ordered. On
August 14, 2013, the trial court sentenced Appellant to 72-144 months’ (6-
12 years’) incarceration for aggravated assault, a consecutive term of 84-
168 months’ (7-14 years’) incarceration for robbery, a concurrent term of
42-84 months’ (3½-7 years’) incarceration for burglary, a concurrent term of
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54-108 months’ (4½-9 years’) incarceration for conspiracy, for an aggregate
sentence of 156-312 months’ (13-26 years’) incarceration.
Appellant filed a timely motion for reconsideration of his sentence on
August 21, 2013, which was denied by the trial court on September 19,
2013. Appellant then filed a timely notice of appeal on October 18, 2013.
Appellant now presents the following question for our review:
Whether the court erred by not properly considering or giving
appropriate weight to the mitigating factors in this case and in
crafting an unreasonable sentence[?]
Appellant’s Brief, at 6.
Appellant asserts that the trial court failed to give adequate
consideration to the fact that he “accepted his role in being involved in these
criminal acts and pleaded guilty[,]” and that he “went beyond the mere
resolution of the case by providing to law enforcement information regarding
a Brinks robbery and also expressed a willingness to testify against his co-
defendants in this case.” Id. at 10. Thus, Appellant contends that the trial
failed to consider or otherwise afforded inadequate weight to these
mitigating factors, rendering his sentence an unreasonable exercise of the
court’s discretion.
Our standard of review of discretionary aspects of sentencing claims is
well-settled:
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Commonwealth v.
Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must
invoke this Court's jurisdiction by satisfying a four-part test:
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[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). Objections to the discretionary
aspects of a sentence are generally waived if they are not raised
at the sentencing hearing or in a motion to modify the sentence
imposed. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.
Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis.
Commonwealth v. Paul, 925 A.2d 825, 828 (Pa. Super. 2007).
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 912-
13.
As to what constitutes a substantial question, this Court
does not accept bald assertions of sentencing errors.
Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super.
2006). An appellant must articulate the reasons the sentencing
court's actions violated the sentencing code. Id.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).
Here, Appellant filed a timely appeal and preserved his claim in a
timely post-sentence motion. He also provided this Court with a Pa.R.A.P.
2119(f) statement in his brief. Appellant’s Brief, at 5. However, the
Commonwealth argues that Appellant fails to present a substantial question
for our review. We agree.
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In Appellant’s 2119(f) statement, he claims that he is raising a
substantial question because:
[T]he [trial] court's reasons for the sentence imposed, especially
the consecutive aspect of one count, do not justify the sentence
imposed because … [A]ppellant not only pleaded guilty and
therefore accept[ed] responsibility, but was also willing to and in
fact cooperated with law enforcement and the crimes were all
committed in a single criminal episode.
Appellant’s Brief, at 5.
However, “[a] claim that a sentencing court failed to consider certain
mitigating factors does not raise a substantial question that the sentence is
inappropriate.” Commonwealth v. Lewis, 911 A.2d 558, 567 (Pa. Super.
2006). In Lewis, the appellant argued that the trial court failed to consider,
inter alia, “his overall acceptance of responsibility for the injuries caused to
the victim.” Id. The Lewis court held that such a claim did not present a
substantial question for our review.
Moreover, this Court has also held that “[t]he imposition of
consecutive, rather than concurrent, sentences may raise a substantial
question in only the most extreme circumstances, such as where the
aggregate sentence is unduly harsh, considering the nature of the crimes
and the length of imprisonment.” Moury, 992 A.2d at 171-72. Appellant’s
aggregate sentence of 13-26 years’ incarceration, composed exclusively of
standard range guideline sentences, was imposed for criminal conduct
involving an armed home invasion, one that ultimately resulted in significant
and serious injuries to the victim, Jermaine Herod, who was shot multiple
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times by Appellant or one of his cohorts. Appellant’s sentence does not
appear on its face to be unduly harsh or extreme in light of these
circumstances. Accordingly, we conclude that Appellant fails to present a
substantial question for our review. Consequently, he is not entitled to relief
on his discretionary aspects of sentencing claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/30/2015
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