J-S64010-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. BRANDON SIMOLA Appellant No. 214 WDA 2014

Appeal from the Judgment of Sentence August 14, 201 3 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0002515-2013

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J. MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 7, 2014 Brandon Simola appeals from his judgment of senten ce imposed in the Court of Common Pleas of Allegheny County following his convictions for one count each of: retail theft (F3), 1 simple assault (M2), 2 possession of a controlled substance, 3 and possession of drug paraphernalia. 4 Upon review, we affirm. On May 23, 2013, Simola pled guilty to the above-l isted offenses. The court sentenced Simola to an aggregate term of 18 t o 36 months’

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1 18 Pa.C.S. § 3929(a)(1).

2 18 Pa.C.S. § 2701 (a)(1).

3 35 Pa.S. § 780-113(a)(16).

4 35 Pa.S. § 780-113 (a)(32).J-S64010-14

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imprisonment, followed by two years of probation. Following the trial court’s denial of his post-sentence motion on January 3, 20 14, Simola filed a timely notice of appeal. 5 On appeal, Simola contends that the court abused it s discretion by failing to consider his rehabilitative needs and im posing a manifestly excessive and unreasonable sentence. Simola’s clai m implicates the discretionary aspects of his sentence. Challenges to the discretionary aspects of sentenci ng do not entitle an appellant to review as of right. An app ellant challenging the discretionary aspects of his senten ce must invoke this Court’s jurisdiction by satisfying a fo ur-part test: We conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appe al, see Pa.R.A.P. 902 and 903; (2) whether the issue was pr operly preserved at sentencing or in a motion to reconside r and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 211 9(f); and (4) whether there is a substantial question that th e sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b). Objections to the discretionary aspects of a senten ce are generally waived if they are not raised at the sent encing hearing or in a motion to modify the sentence imposed.

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5 On February 13, 2014, the trial court ordered a st atement of errors complained of on appeal, to which Simola timely res ponded, claiming the court imposed an illegal sentence at count one and that the court abused its discretion. Simola’s first claim was based on a sc rivener’s error, which resulted in the docket reflecting a different sente nce from that imposed at the time of sentencing. On June 23, 2014, the tria l court submitted its Rule 1925(a) opinion and corrected the scrivener’s error on the docket to reflect the correct sentence.J-S64010-14

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The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. A subst antial question exists only when the appellant advances a colorable argument that the sentencing judge’s actions were e ither: (1) inconsistent with a specific provision of the Sente ncing Code; or (2) contrary to the fundamental norms which underli e the sentencing process. Commonwealth v. Griffin , 65 A.3d 932, 935-36 (Pa. Super. 2013) (citations and quotations omitted). Here, Simola has met the first three requirements o f the four-part test. However, as this Court recently noted in Griffin , there is ample precedent to support a determination that Simola’s allegation fails to raise a substantial question. Griffin , 65 A.3d at 936-37 (citing Commonwealth v.
Cannon , 954 A.2d 1222, 1228-29 (Pa. Super. 2008) (claim t hat trial court failed to consider defendant’s rehabilitative needs , age, and educational background did not present substantial question); Commonwealth v. Mobley , 581 A.2d 949, 952 (Pa. Super. 1990) (claim that s entence failed to take into consideration defendant’s rehabilitative needs and was manifestly excessive did not raise substantial question where sentence was within statutory guidelines and within sentencing guidelin es); Commonwealth v. Bershad , 693 A.2d 1303, 1309 (Pa. Super. 1997) (claim that trial court failed to appropriately consider appellant’s rehabi litative needs does not present substantial question); Commonwealth v. Lawson , 650 A.2d 876, 881 (Pa. Super. 1994) (claim of error for failing t o consider rehabilitative needs does not present substantial question)).J-S64010-14

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Even if we were to find that Simola’s claim did rai se a substantial question, the underlying allegation is meritless. Sentencing is a matter vested in the sound discreti on of the sentencing judge, and a sentence will not be distur bed on appeal absent a manifest abuse of discretion. In this con text, an abuse of discretion is not shown merely by an error in ju dgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, p rejudice, bias or ill will, or arrived at a manifestly unreasonabl e decision. * * * When imposing a sentence, a court is required to co nsider the particular circumstances of the offense and the cha racter of the defendant. In particular, the court should refer t o the defendant’s prior criminal record, his age, persona l characteristics and his potential for rehabilitatio n. Where the sentencing court had the benefit of a presentence i nvestigation report (“PSI”), we can assume the sentencing court was aware of relevant information regarding the defendant’s c haracter and weighed those considerations along with mitigating statutory factors. Further, where a sentence is within the s tandard range of the guidelines, Pennsylvania law views the sente nce as appropriate under the Sentencing Code. Griffin , 65 A.3d at 937-38 (citations omitted). The record belies Simola’s claim that the court fai led to acknowledge his “dire need to be rehabilitated given the seriou s drug-addiction that has plagued him for the majority of his adult life.” A ppellant’s Brief, at 11. As the trial court explained, [Simola’s] drug problem was addressed in the presen tence report and discussed at the sentencing hearing. Th e [c]ourt, responding to [Simola’s] statement that he had ente red a methadone treatment program shortly before the sent encing hearing, noted that he had been arrested on June 13 , three weeks after he entered his plea in this case , and chargedJ-S64010-14

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with possession of heroin. [We] explained the reas ons for the sentenced imposed: The [c]ourt’s reviewed the pre-sentence report for a second time. Keep coming up with the same conclusi on. You have been going in and out of this court system since 1998. Doing the math, that’s 15 years. 15 years o f using drugs, retail theft, sexual assault, simple assault , theft by deception, criminal conspiracy, and now all of a su dden -- after you enter a plea of guilty to retail theft in May, you get arrested again for possession. Now all of a su dden you’re in a methadone maintenance program. Possess ion, by the way, of heroin. I think it has been 15 year s of judges trying to reach you and haven’t been success ful. Trial Court Opinion, 6/23/14, at 3-4 (emphasis in o riginal). Thus, the court considered Simola’s drug addiction and weighed his rehabilitative needs against his fifteen years of criminal activity and concluded that incarceration would both prevent him from using drugs and preying on others to support that addiction. Based on our review of the record, Simola has faile d to establish that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill w ill, or arrived at a manifestly unreasonable decision. Griffin , supra . Thus, for all of the foregoing reasons, we decline to disturb Simola’s judgment of sentence. Judgment of sentence affirmed.J-S64010-14

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/7/2014