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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

BRIAN KEITH ANDRUS

Appellant No. 1550 MDA 2015

Appeal from the Judgment of Sentence August 10, 2015

In the Court of Common Pleas of Clinton County

Criminal Division at No(s): CP-18-CR-0000291-2014

CP-18-CR-0000293-2014

CP-18-CR-0000295-2014

BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J.

MEMORANDUM BY LAZARUS, J.: FILED JANUARY 09, 2017

Brian Keith Andrus appeals from the judgment of sentence entered in 

the Court of Common Pleas of Clinton County. We affirm.

Over the course of three days in March 2014, Andrus stole $1,671.92 

worth of merchandise from Walmart. He was charged with three counts of 

retail theft, each graded as a misdemeanor of the first degree. 18 Pa.C.S.A. 

§ 3929(a)(1). Andrus entered a negotiated plea, and the court sentenced 

him to 60 months’ intermediate punishment (“IP”) for each offense, to run 

concurrently, with the first 12 months to be served on house arrest with GPS 

monitoring. Additionally, Andrus was required to participate and complete 

the Lycoming County Drug Treatment Court Program (“DTC”). At the guilty 

plea/sentencing hearing, the court informed Andrus that failure to comply 
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with the IP program would result in revocation of his sentence and 

imposition of a state sentence of up to 71⁄2 to 15 years’ incarceration; Andrus 

indicated he understood. See N.T. Guilty Plea/Sentencing, 2/17/15, at 13. 

Andrus failed to report to his treatment program on March 5, 2015 and 

for his appointment with the Lycoming County Probation Department on 

March 9, 2015. The court issued a bench warrant for Andrus’ arrest and, 

while the warrant was outstanding, Andrus failed to report for an IP 

revocation hearing on May 4, 2015. Andrus was arrested on June 6, 2015; 

he admitted to violating the IP program requirements; The court revoked 

Andrus’ negotiated sentence. 

On August 10, 2015, the trial court sentenced Andrus to consecutive 

terms of one to two years’ imprisonment for each of the three offenses. 

Andrus filed a motion for modification of sentence, which the court denied, 

and he filed a timely notice of appeal. The court ordered Andrus to file a 

Pa.R.A.P. 1925(b) statement of errors complained of on appeal, which 

Andrus timely filed on September 24, 2015. On appeal, Andrus challenges 

the discretionary aspects of his sentence: 

1. Whether the trial court committed an abuse of discretion in 

failing to adequately consider that [Andrus] is the father of 

eight (8) children, and that [he] pays support for those 

children, which will not be possible if [he is] incarcerated in 

a state correctional institution?

2. Whether the trial court committed an abuse of discretion in 

failing to adequately consider that [Andrus] has an 

exemplary behavioral history while incarcerated at the 

Clinton County Correctional Facility, including [his] 
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compliance with the Correctional Facility work release 

program?

3. Whether the trial court committed an abuse of discretion in 

failing to adequately consider that [Andrus], prior to the 

imposition of sentence in these matters, had obtained fulltime employment with a local employer while [he] was 

incarcerated and awaiting sentencing in these matters? 

Appellant’s Brief, at 4. 

Challenges to the discretionary aspects of one’s sentence are not 

appealable as of right, and in order for this Court to reach the merits of such

claims, Andrus first must satisfy a four-part test to determine: (1) whether 

he has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) 

whether the issue was properly preserved, see Pa.R.Crim.P. 720; (3) 

whether he has included a statement in compliance with Pa.R.A.P. 2119(f); 

and (4) whether there is a substantial question that the sentence 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). 

Andrus has complied with the first three requirements. However, we 

find he has failed to raise a substantial question that the sentence is 

inappropriate under the Sentencing Code. 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.” Commonwealth v. Sierra, 752 A.2d 910, 912-13 

(Pa. Super. 2000). Here, Andrus claims that the sentencing court failed to 
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consider his rehabilitative needs, mitigating circumstances, and that fact 

that he has eight dependent children. These averments fail to raise a 

substantial question that his sentence is not appropriate under the 

Sentencing Code. See Commonwealth v. Cannon, 954 A.2d 1222, 1228–

29 (Pa. Super. 2008) (claim that court failed to consider defendant's 

rehabilitative needs did not present a substantial question); see also 

Commonwealth. v. Ladamus, 896 A.2d 592 (Pa. Super. 2006) (claim that 

court failed to adequately consider certain mitigating factors did not raise 

substantial question); Commonwealth v. Kraft, 737 A.2d 735, 757 (Pa. 

Super. 1999) (claim that court did not adequately consider personal life 

situation of grandmother who cared for child did not raise substantial 

question).

Because Andrus has failed to articulate a substantial question, review 

of the merits of his claims is not warranted.1 

Judgment of sentence affirmed.

____________________________________________

1 Even were we to reach the merits of Andrus’ challenges, we would find 

them meritless. The sentencing court considered the presentence 

investigation report, Andrus’ considerable prior record, which included 

burglary, criminal conspiracy and statutory rape, and the fact that Andrus 

squandered the opportunity the court gave him in approving the negotiated 

plea agreement. See Commonwealth v. Pasture, 107 A.3d 21, 28 (Pa. 

2014) (“We emphasize a trial court does not necessarily abuse its discretion 

in imposing a seemingly harsher post-revocation sentence where the 

defendant received a lenient sentence and then failed to adhere to the 

conditions imposed on him.”). 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/9/2017