J-A11030-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA NATHANIAL DUDLEY :
:
Appellant : No. 1850 MDA 2019
Appeal from the Judgment of Sentence Entered September 19, 2019
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0002007-2019
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 27, 2020
Joshua Dudley appeals from the judgment of sentence entered on
September 19, 2019. Dudley contends that the trial court imposed an
excessive sentence. We affirm.
The trial court summarized the facts as follows:
On February 25, 2019, Capitol Police were dispatched to 322
Market Street, the Market on Market. Dispatch advised that
Harristown Security was watching on camera three males,
including [Dudley], break a side window and enter into the
store using a brick. They then stole a number of items and
fled the store. Capitol Police were able to catch up to them
and detain them. A search incident to arrest revealed a large
amount of cash and packs of cigarettes in their pockets.
The store owner and victim, Navtaj Grewal, confirmed that
the money, cash registers, and cigarettes were taken from
the store during this incident.
____________________________________________
* Former Justice specially assigned to the Superior Court.
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Trial Court Opinion, filed January 9, 2020, at 2 (internal citations omitted).
On July 10, 2019, Dudley pled guilty to burglary, criminal trespass,
conspiracy to commit burglary, corruption of minors, and criminal mischief.1
The court sentenced him to one and a half to three years’ incarceration, with
eligibility for boot camp, and two years of state probation. Dudley filed a post-
sentence motion, which the trial court denied. This timely appeal followed.2
Dudley has raised one issue for our review:
Whether the imposition of an aggregate sentence of [one
and one-half to three years’] incarceration was excessive
given the circumstances of [Dudley] when the sentence
imposed at count one (1) exceeded the standard sentencing
guideline range by two (2) months, was an abuse of
discretion and manifestly unreasonable as the gravity of the
offense was already taken into consideration by the grading
of the offense and the attendant [offense gravity score]
applied to the offense was contrary to the fundamental
norms underlying the sentencing process, where more
emphasis was placed on the incident than on the
rehabilitative needs of [Dudley], and failed to account for
mitigating factors including [Dudley’s] age and mental
health issues?
Dudley’s Br. at 4 (unpaginated) (unnecessary capitalization omitted).
____________________________________________
1 18 Pa.C.S.A. §§ 3502(a)(4), 3503(a)(1)(i), 903, 6301(a)(1)(i), and
3304(a)(5), respectively.
2 Dudley stated in his notices of appeal that he was appealing from the order
denying his post-sentence motion. However, the appeal properly lies from the
judgment of sentence imposed on September 19, 2019, and we have
amended the caption accordingly. See Commonwealth v. Shamberger, 788
A.2d 408, 410, n.2 (Pa.Super. 2001) (en banc) (correcting the caption when
appellant misstates where the appeal lies).
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Dudley challenges the discretionary aspects of his sentence. “The right
to appellate review of the discretionary aspects of a sentence is not absolute,
and must be considered a petition for permission to appeal.” Commonwealth
v. Conte, 198 A.3d 1169, 1173 (Pa.Super. 2018), appeal denied, 206 A.3d
1029 (Pa. 2019). Before reviewing the merits of Dudley’s claim, we must
determine whether: “(1) the appeal is timely; (2) the appellant has preserved
his issue; (3) his brief includes a concise statement of the reasons relied upon
for allowance of an appeal with respect to the discretionary aspects of his
sentence; and (4) the concise statement raises a substantial question whether
the sentence is inappropriate under the Sentencing Code.” Commonwealth
v. Green, 204 A.3d 469, 488 (Pa.Super. 2019); see also Pa.R.A.P. 2119(f)
(stating that an appellant who challenges the discretionary aspects of a
sentence “shall set forth in a separate section of the brief a concise statement
of the reasons relied upon for allowance of appeal with respect to the
discretionary aspects of a sentence”).
Instantly, Dudley has complied with the first three requirements: his
appeal is timely, he preserved the issue in a post-sentence motion, and his
brief includes a statement of the reasons for allowance of appeal. We now turn
to whether Dudley has raised a substantial question.
A substantial question exists when the appellant makes 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 underlying the sentencing process. Commonwealth v. Moury, 992
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A.2d 162, 170 (Pa.Super. 2010). Dudley’s Pa.R.A.P. 2119(f) statement asserts
that the sentencing court imposed an unreasonable sentence by sentencing
him outside of the sentencing guidelines and placing more emphasis on the
nature of the offenses than on his rehabilitative needs. Dudley’s Br. at 7
(unpaginated). Such a claim raises a substantial question. See
Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa.Super. 2003) (en
banc) (stating that a substantial question is raised where appellant claims the
sentencing court imposed an aggravated range sentence without considering
mitigating circumstances); Commonwealth v. Riggs, 63 A.3d 780, 786
(Pa.Super. 2012) (finding that appellant raised a substantial question when
he argued that “the trial court failed to consider relevant sentencing criteria,
including . . . the rehabilitative needs of [a]ppellant, as 42 Pa.C.S.A. § 9721(b)
requires”). Thus, we proceed to the merits of Dudley’s claim.
Dudley contends that his sentence was excessive and constituted an
abuse of discretion because the court gave little consideration to his character,
background, and history, or to the minimum sentence necessary for the
protection of the public. He further maintains that the court based his sentence
“solely on the negative aspects of the offense without giving proper weight to
his background and character,” and the sentence does not reflect the requisite
consideration for beginning Dudley’s rehabilitation. Dudley’s Br. at 9
(unpaginated). He also argues “the trial court failed to state sufficient reasons
for the aggravated range sentence especially when [Dudley] had
approximately seven (7) months’ time credit from February 25, 2019 to
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September 19, 2019 towards his sentence and would ultimately lose his
mental health services.” Id. at 9-10 (unpaginated).
“Sentencing 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. Edwards, 194 A.3d 625, 637 (Pa.Super.
2018), appeal denied, 202 A.3d 41 (Pa. 2019) (citation omitted). An abuse of
discretion occurs where “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. (citation omitted). In
imposing a sentence, the sentencing court must consider “the protection of
the public, the gravity of the offense as it relates to the impact on the life of
the victim and on the community, and the rehabilitative needs of the
defendant.” 42 Pa.C.S.A. § 9721(b).
The sentencing court must state its reasons for the sentence on the
record. Id. “A sentencing court’s indication that it has reviewed a presentence
report can satisfy the requirement of placing reasons for imposing the
sentence on the record.” Commonwealth v. Bullock, 170 A.3d 1109, 1126
(Pa.Super. 2017) (citing Commonwealth v. Burns, 765 A.2d 1144, 1151
(Pa.Super. 2000)). Indeed, “where the trial court is informed by a
[presentence] report, it is presumed that the court is aware of all appropriate
sentencing factors and considerations, and that where the court has been so
informed, its discretion should not be disturbed.” Id. (quoting
Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa.Super. 2009)); see
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also Moury, 992 A.2d at 171 (stating “[w]here 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”) (quotation marks and citation omitted). Additionally, “this Court
should not reweigh the proper sentencing factors considered by the trial court
and impose our own judgment in the place of the trial court.”
Commonwealth v. Peck, 202 A.3d 739, 747 (Pa.Super. 2019).
In the instant case, the trial court was informed of a presentence report
and it was made a part of the record during sentencing. N.T., 9/19/19, at 6.
Therefore, we presume that the trial court was aware of all appropriate
sentencing factors and considerations, including Dudley’s character,
rehabilitative needs, and mitigating factors such as Dudley’s age and mental
health issues, at the time of sentencing. See Bullock, 170 A.3d at 1126-
1127. Further, the court specifically noted on the record Dudley’s young age
and his history of recidivism in that he had two felony convictions for burglary.
N.T., 9/19/19, at 6. The court also considered Dudley’s mental health issues
of anxiety and bipolar disorder and ordered Dudley to continue his mental
health treatment within the state prison system. Id. at 5, 9.
Based on the foregoing, it is evident that the trial court considered all of
the relevant sentencing factors, including the information contained within the
presentence report, the seriousness of the crime, the need to protect the
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public, and Dudley’s need for rehabilitation. Accordingly, we discern no abuse
of discretion by the trial court and Dudley’s claim is without merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/27/2020
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