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

COMMONWEALTH OF PENNSYLVANIA

v.

DONNELL RHODES, JR.

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1115 MDA 2019 Appeal from the Judgment of Sentence Entered June 3, 2019 In the Court of Common Pleas of Dauphin County Criminal Division at

No(s): CP

- 22

- CR

- 0004735

- 2018
COMMONWEALTH OF PENNSYLVANIA

v.

DONNELL L. RHODES, JR.

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1116 MDA 2019 Appeal from the Judgment of Sentence Entered June 3, 2019 In the Court of Common Pleas of Dauphin County Criminal Division at

No(s): CP

- 22

- CR

- 0004846

- 2018
COMMONWEALTH OF PENNSYLVANIA

v.

DONNELL RHODES, JR.

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1117 MDA 2019 Appeal from the Judgment of Sentence Entered June 3, 2019 In the Court of Common Pleas of Dauphin County Criminal Division at

No(s): CP

- 22

- CR

- 0004847

- 2018J

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BEFORE: STABILE, J., DUBOW, J., and PELLEGRINI, J. *
MEMORANDUM BY DUBOW, J.: FILED: MAY 18, 2020
In this consolidated appeal, 1 Appellant Donnell Rhodes, Jr., appeals from
the Judgments of Sentence imposed on June 3, 2019, after he entered guilty
pleas at three different docket numbers to charges of armed Robbery,
Conspiracy, and other offenses. He challenges the discretionary as pects of
his sentence. After careful review, we affirm.

We summarize the underlying facts, gleaned from the Trial Court’s

P a.R.A.P. Opinion and the certified record, as follows. In July 2018, Appellant

committed three armed robberies in the City of Harrisburg

. 2 On April 22, 2019,
Appellant entered guilty pleas : 3 s pecifically, at docket number 4847 CR 2018 ,

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.

1 This Court sua sponte consolidated Appellant’s three appeals on July 31, 2019.

2 O n July 4, 2018, Appellant and two others entered a store and while he pointed a gun at the clerk’s head, the other individuals grabbed cigarettes from the store. On July 6, 2018, Appellant enter ed a food market, pointed a gun at the woman behind the counter, jumped over the counter, threw the
woman to the ground, and stood on her. When Appellant noticed a camera, he broke it. On July 8, 2018, while driving a stolen car, Appellant got out of the car while wearing a mask, pointed a gun at a man who was assisting an injured bird, took his cell phone, ordered him to his knees and patted him down. When police officers arrested him a short time later, he had the stolen phone, keys to the stolen car, a pellet gun , and toy AR

- 15 guns in the car. Appellant was 17 years old at the time of the crimes.

3 In September 2018, Appellant had filed a Petition to decertify the cases for transfer to juvenile court but withdrew his Petition on April 22, 2019, when he entered his guilty pleas.J

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he pleaded guilty to one count each of Robbery and Criminal Conspiracy (July

4 th incident); 4 at number 4846 CR 2018 , he ple a d ed guilty to one coun t each

of Robbery and Criminal Conspiracy (July 6 th incident); 5 and at number 4735
CR 2018, Appellant ple a d ed guilty to Robbery, Receiving Stolen Property,
Unlawful Possession of an Instrument of Crime, and Simple Assault (July 8 th
incident). 6
On June 3, 2019, the Court held a sentencing hearing, and imposed an aggregate sentence of 5 to 10 years’ incarceration, as follows:

at docket no. 4847, Appellant received identical terms of 3 to 6 years’ incarceration for the Robbery and Conspiracy convictions , to be served concurrently;

at docket no. 4846, Appellant received 2 to 4 years’ incarceration for Robbery, to be served consecutive to the sentences imposed at 4847; and 2 to 4 years’ incarceration for Conspiracy, to be served concurrently with the Robbery sentence; and

at docket no. 4735, the court imposed 4 to 8 years’ incarceration for the Robbery, and 6 to 12 months’ for Receiving Stolen Property, each to be served concurrently with the senten ces imposed at 4846 and 4847. In addition, t he court ordered credit for time served, and imposed no further penalty for the Possession of an Instrument of Crime and Simple Assault.

_________________ __________ ______ ____ _______

4 18 Pa.C.S. § 3701(a)(1)(ii) and 18 Pa.C.S. § 903, respectively.

5 18 Pa.C.S. § 3701(a)(1)(ii) and 18 Pa.C.S. § 903, respectively.

6 18 Pa.C.S. § 3701(a)(1)(ii); 18 Pa.C.S. § 3925(a); 18 Pa.C.S. § 907(a); 18 Pa.C.S. § 3 701(a)(3), respectively.J

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Sentencing Order, 6/3/19

. 7
On June 13, 2019, Appellant filed a Motion to M odify Sentence at all

three docket s , contending the court did not appropriately consider mitigating

factors before imposing the sentences . The court denied the Motion at each
docket on July 1, 2019.
Appellant timely appealed. 8 Although the trial court did not order a
Pa.R.A.P. 1925(b) Statement , it filed a Pa.R.A.P. 1925(a) Opinion, addressing

its denial of Appellant’s Motion s to Modify Sentence.
Appellant raises the following question for our review:
Was the imposition of an aggregate sentence of 5 years to 10 years clearly unreasonable, so manifestly excessive as to constitute an abuse of discretion, and inconsistent with the protection of the public, the gravity of the offenses, and [Appellant’s] rehabilitative needs?
Appellant’s Br. at 7.
Appellant’s issue presents a challenge to the discretio nary aspects of his

sentences. A challenge to discretionary aspects of a sentence is not

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7 The trial court notes that the individual sentences imposed at 4847 and 4846, are either within or below the mitigated ranges of the Sentencing Guidelines; and the sentence at 4735 is within the standard range of the Guidelines . Trial Ct. Opinion, dated Aug. 6, 2019, at 4

- 5.

8 Relevant to this appeal, where a defendant files a timely post

- sentence motion , the notice of appeal from the judgment of sentence shall be filed within 30 days of the entry of the order deciding the motion. Pa.R.Crim.P. 720(A)(2); Commonwealth v. Dreves , 839 A.2d 1122, 1126 (Pa. Super. 2003). Appellant here filed a timely Post

- Sentence Motion, which the court denied on July 1, 2019. Appellant filed his Notice of Appeal on July 10, 2019; this Appeal was , thus , timely filed.J

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reviewable as a matter of right. Commonwealth v. Leatherby , 116 A.3d
73, 83 (Pa. Super. 2015)

. Rather, an appellant challenging the sentencing
court’s discretion must invoke this Court’s jurisdiction by (1) filing a timely
notice of appeal; (2) properly preserving the issue at sentencing or in a post

sentence motion ; (3) complying with Pa.R.A.P. 211 9(f), which requires a
separate section of the brief setting forth a concise statement of the reasons
relied upon for allowance of appeal with respect to the discretionary aspects

of a sentence ; and (4) presenting a substantial question that the sentence

a ppealed from is not appropriate under the Sentenc ing Code, 42 Pa.C.S. §
9781(b). Id. ; Commonwealth v. Evans , 901 A.2d 528, 533 (Pa. Super.
2006).
Here, Appellant timely appealed , challenged the discretionary aspects of

his sentence in a Post

- Sentence Motion , 9 and included a Rule 2119(f)

Statement , essentially contending that the sentence is contrary to the
fundamental norms underlying the sentencing scheme and inconsistent with
the protection of the public

. See Appellant’s Brief at 14

- 15

. We, thus, now
consider whether he has raised a substantial question.

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9 In his Post

- Sentence Motion, Appellant averred that the court inadequately considered various mitigating factors before imposing sentence. He did not specifically challenge the sentencing court’s imposition of consecutive sentences, thus Appellant has waived the argument that the imposition of consecutive, as opposed to concurrent sentences, was “so manifestly excessive as to constitute an ab use of discretion.” Appellant’s Br. at 19. See Pa.R.A.P. 302(a) (the failure to raise an issue before the trial court results in waiver).J

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W hether a substantial question has been raised is dete rmined on a case

by

- case basis. Commonwealth v. Moury , 992 A .2d 162, 170 (Pa. Super.
2010). “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 [that] un derlie the sentencing process.” Id.
(cit ation and quotation omitted).
Generally, w here a sentence “ falls within the sentencing guidelines, no
substantial question exists.” Commonwealth v. Maneval , 688 A.2d 1198,

1199

- 1200 (Pa. Super. 1997).
Here, Appellant acknow ledges that he received sentences that fell within
the guidelines. 10 He nonetheless avers that the trial court failed to adequately
consider various mitigating factors

. See Appellant’s Br. at 20

- 21 (contending
court failed to consider Appellant’s age, his mental health, the abuse and
neglect he suffered as a child in his mother’s custody and subsequently in
foster care, and the juvenile probation department’s recommendation, made
three months prior to the commission of the instant crimes, that Appellant be
released to the custody of his father rather than placed in a secure facility for
rehabilitation).

_________________ __________ ______ ____ _______

10 Appellant does not include in his Brief a recitation of what the guidelines provide d , nor does he acknowledge the t rial court’s observation in its Rule 1925(a) Opinion that his sentences fell either within or below the mitigated ranges in two dockets, and within the standard range in the third docket.J

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It is clear from our precedent that Appellant has failed to raise a
substantial question. See, e.g., Commonwealth v. Griffin , 65 A.3d 932,

936

- 37 (Pa. Sup er. 2013) (claim that the trial court failed to consider
defendant’s rehabilitative needs in imposing standard

- range sentences did not
raise a substantial question); Commonwealth v. Mobley , 581 A.2d 949, 952
(Pa. Super. 1990) (claim that sentence failed to take into consideration the
defendant’s rehabilitative needs and was manifestly excessive did not raise a
substantial question where sentence was within statutory guidelines and
within sentencing guidelines). See also Commonwealth v. Miklos , 159

A.3d 962 , 970 (Pa. Super. 2017) (holding that a n argument that the
sentencing court failed to adequately consider mitigating factors in favor of a
lesser sentence does not present a substantial question appropriate for our

review ); Commonwealth v. Williams , 562 A. 2d 1385, 1388 (Pa. Super.
1989) ( en banc ) (concluding that an allegation that the sentencing court did
not adequately consider various factors is, in effect, a request that this court
substitute its judgment for that of the lower court in fashioning a defe ndant’s
sentence).

Because Appellant has not raised a substantial question, he has not
invoked our jurisdiction . We, thus, decline to address the merits of his appeal ,
and we affirm the Judgment s of Sentence.
Judgment s of Sentence affirmed.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 0 5/18/2020