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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
AARON JADEN WEAVER
Appellant No. 925 MDA 2016
Appeal from the Judgment of Sentence April 28, 2016
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0001913-2015
BEFORE: SHOGAN, J., RANSOM, J., and MUSMANNO, J.
MEMORANDUM BY RANSOM, J.: FILED JULY 18, 2017
Appellant, Aaron Jaden Weaver, appeals from the judgment of
sentence of two and one-half to six years, imposed April 28, 2016, following
an open guilty plea resulting in his conviction for theft by unlawful taking
and criminal use of a communication facility.1 We affirm.
This sentence was to run consecutive to any other sentence Appellant
was presently serving.2 Appellant filed a motion for reconsideration of
sentence, arguing the sentence was unduly harsh and excessive, as it was in
the aggravated range of the sentencing guidelines. The court denied
Appellant’s motion.
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1
See 18 Pa.C.S. §§ 3921, 7512, respectively.
2
Appellant was serving a sentence of two and one-half to five years for
robbery. See Sentencing Court Opinion (SCO), 12/15/16, at 1-2.
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Appellant timely appealed. The court did not direct compliance with
Pa.R.A.P. 1925(b), but instead issued a Pa.R.A.P. 1925(a) opinion
addressing the discretionary aspects of Appellant’s sentence.
On appeal, Appellant raises a single question for our review:
Did the trial court abuse its discretion when imposing a sentence
of [thirty] to [seventy-two] months, a sentence within the
aggravated range of the sentencing guidelines, where the
Appellant’s conduct was less than egregious in that no victims
were physically harmed, his success in his youth offender
programming adequately addressed his rehabilitative needs, and
where the Court referenced a prior criminal proceeding Appellant
was found “not guilty” of at the sentencing hearing?
Appellant’s Brief at 4.
Appellant challenges the discretionary aspects of his sentence, a
challenge which does not entitle him to review as of right. Commonwealth
v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011). Prior to addressing a
discretionary challenge, this Court engages in a four-part analysis: 1)
whether the appeal is timely; 2) whether Appellant preserved his issue; 3)
whether Appellant’s brief contains a concise statement of the reasons relied
upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f); and 4) whether
that statement raises a substantial question that the sentence is
inappropriate under the sentencing code. See Commonwealth v. Austin,
66 A.3d 798, 808 (Pa. Super. 2013); see also Pa.R.A.P. 2119(f).
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Appellant timely filed a notice of appeal, preserved one of his claims in
a post-sentence motion, and included in his brief an appropriate Pa.R.A.P.
2119(f) statement.3 We must now determine whether he has raised a
substantial question that the sentence is inappropriate under the sentencing
code and, if so, review the merits.
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 where the Appellant advances a colorable
argument that the sentencing judge’s actions were either inconsistent with a
specific provision of the Sentencing Code, or contrary to the fundamental
norms which underlie the sentencing process. Commonwealth v. Sierra,
752 A.2d 910, 913 (Pa. Super. 2000). A claim that a sentence is manifestly
excessive may raise a substantial question if Appellant’s Pa.R.A.P. 2119(f)
statement sufficiently articulates the manner in which the sentence was
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3
Appellant also contended that the sentencing court acted vindictively in
considering a prior acquittal for purposes of Appellant’s sentence. See
Appellant’s Brief at 8. Appellant cites in support Commonwealth v.
Robinson, 931 A.2d 15, 20-21 (Pa. Super. 2007). Appellant did not
preserve this claim in his post-sentence motion and, accordingly, has waived
it for purposes of appeal. See Pa.R.A.P. 2119(f). Additionally, we note that
Robinson and its progeny implicate challenges to the sentence following
resentencing. See Robinson, 931 A.2d at 19; see also Commonwealth
v. Tapp, 997 A.2d 1201, 1203 (Pa. Super. 2010). In the instant case,
Appellant was not following the vacation or remand of his original sentence.
Accordingly, Robinson is inapposite.
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inconsistent with the Code or contrary to its norms. Commonwealth v.
Mouzon, 812 A.2d 617, 627-28 (Pa. 2002).
In his Pa.R.A.P. 2119(f) statement, Appellant asserts that the court’s
imposition of an aggregate sentence of two and one-half to six years was
clearly inappropriate and excessive as to constitute too severe a
punishment. See Appellant’s Brief at 8. Appellant contends that Mouzon
establishes a substantial question, as a claim of excessiveness can raise a
substantial question that the sentence is inappropriate. However, we note
that Appellant must still articulate the manner in which the sentence is
inconsistent with the Code or contrary to its norms. Mouzon, 812 A.2d at
627-28.
Appellant’s Pa.R.A.P. 2119(f) statement does not identify a specific
provision of the Code with which the sentence was inconsistent. Instead, he
appears to argue that the court failed to give appropriate weight to several
mitigating factors, including Appellant’s difficult upbringing, abandonment by
his adoptive parents, and good behavior in confinement. See Appellant’s
Brief at 7-8.
A defendant’s contention that the trial court did not adequately
consider mitigating circumstances, without more, does not raise a
substantial question. See Commonwealth v. Ladamus, 896 A.2d 592,
596 (Pa. Super. 2006). Here, Appellant acknowledges that his sentence was
within the guideline range, if within the aggravated range. See Appellant’s
Brief at 6. Further, the record reflects that the court had the benefit of a
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pre-sentence investigation report. See Notes of Testimony (N.T.), 4/28/16,
at 2; see also Commonwealth v. Fullin, 892 A.2d 843, 849–50 (Pa.
Super. 2006) (noting that where the sentencing judge has the benefit of a
pre-sentence report it is presumed he was aware of and weighted relevant
mitigating statutory factors).
Accordingly, we conclude that Appellant has failed to raise a
substantial question that his sentence was excessive. Consequently, a
review of the merits of his discretionary challenge is unwarranted.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/18/2017
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