J-S18032-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DAMAL CLARK

Appellant No. 1870 EDA 2014

Appeal from the Judgment of Sentence May 29, 2014

In the Court of Common Pleas of Lehigh County

Criminal Division at No(s): CP-39-CR-0002113-2013

 CP-39-CR-0004198-2013

BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.: FILED MARCH 13, 2015

Appellant, Damal Clark, appeals from the May 29, 2014 aggregate 

judgment of sentence of 12 to 25 years’ imprisonment, imposed after he 

pled guilty to one count of possession of a firearm prohibited and pled nolo 

contendere to eight counts of robbery and one count of criminal conspiracy.1 

After careful review, we affirm.

We summarize the relevant procedural history of this case as follows. 

On March 28, 2014, Appellant entered the above pleas in the trial court. 

Appellant and the Commonwealth entered into a partial negotiated plea 

agreement insofar that the minimum sentence would be 12 years. However, 

there was no agreement as to the maximum sentence. On May 29, 2014, 

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1 18 Pa.C.S.A. §§ 6105(a)(1), 3701(a)(1)(ii), and 903(c), respectively.
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the trial court honored the plea agreement and sentenced Appellant to an 

aggregate sentence of 12 to 25 years’ imprisonment. On June 9, 2014, 

Appellant filed a timely post-sentence motion, which the trial court denied 

the next day, June 10, 2014. On June 30, 2014, Appellant filed a timely 

notice of appeal.2

On appeal, Appellant raises the following issues for our review.

I. Whether there is a substantial question for 

which this Honorable Court should grant 

allowance of appeal from [the] discretionary 

aspects of sentencing?

II. Whether the trial court erred in sentencing 

[Appellant] to a harsh and excessive sentence 

when the [trial] court failed to consider 

mitigating factors contained within 

[Appellant]’s pre-sentence investigation report 

[(PSI)]?

Appellant’s Brief at 4.

At the outset, we note that Appellant’s arguments on appeal pertain to 

the discretionary aspects of his sentence. It is axiomatic that in this 

Commonwealth, “[t]here is no absolute right to appeal when challenging the 

discretionary aspect of a sentence.” Commonwealth v. Tobin, 89 A.3d 

663, 666 (Pa. Super. 2014) (citation omitted). When an appellant forwards 

an argument pertaining to the discretionary aspects of the sentence, this 

Court considers such an argument to be a petition for permission to appeal. 

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2 Appellant and the trial court have complied with Pennsylvania Rule of 

Appellate Procedure 1925.
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Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014) 

(en banc) (citation omitted), appeal denied, 104 A.3d 1 (Pa. 2014). “[A]n 

[a]ppeal is permitted only after this Court determines that there is a 

substantial question that the sentence was not appropriate under the 

sentencing code.” Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. 

Super. 2013) (en banc) (internal quotation marks and citation omitted).

Prior to reaching the merits of a discretionary aspects of sentencing 

issue, this Court is required to conduct a four-part analysis to determine 

whether a petition for permission to appeal should be granted. 

Commonwealth v. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014) 

(citation omitted), appeal denied, 99 A.3d 925 (Pa. 2014). Specifically, we 

must determine the following.

(1) [W]hether appellant has filed a timely notice of 

appeal, Pa.R.A.P. 902, 903; (2) whether the issue 

was properly preserved at sentencing or in a motion 

to reconsider and modify sentence, Pa.R.Crim.P. 

[708]; (3) whether appellant’s brief has a fatal 

defect, Pa.R.A.P. 2119(f); and (4) whether there is a 

substantial question that the sentence appealed from 

is not appropriate under the Sentencing Code, 42 

[Pa.C.S.A.] § 9781(b).

Id.

In the case sub judice, we note that Appellant filed a timely postsentence motion and notice of appeal. We further observe that Appellant 

has included a Rule 2119(f) statement in his brief. In this case, Appellant 

avers that the trial court abused its discretion when it “sentenced him in the 
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aggravated range of the sentencing guidelines in nine of ten counts without 

stating legitimate reasons for doing so and without taking into consideration 

the possible mitigating factors contained within his [PSI].” Appellant’s Brief 

at 10. To the extent Appellant argues that the trial court did not state its 

reasons for sentencing in the aggravated range, Appellant did not raise this 

issue in either his post-sentence motion or his Rule 1925(b) statement. 

Therefore, his argument pertaining to said issue is waived.3 See generally 

Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (stating, “[a]ny 

issues not raised in a Pa.R.A.P. 1925(b) statement will be deemed 

waived[]”); accord Pa.R.A.P. 1925(b)(4)(vii); Pa.R.A.P. 302(a) (stating, 

“[i]ssues not raised in the lower court are waived and cannot be raised for 

the first time on appeal[]”). Therefore, the only preserved issue in 

Appellant’s post-sentence motion and his Rule 1925(b) statement is that the 

trial court failed to consider Appellant’s young age. Thus, we proceed to 

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3

In addition, it is axiomatic that the sentencing guidelines only speak to 

minimum sentences. Commonwealth v. Kleinicke, 895 A.2d 562, 573 

(Pa. Super. 2006) (en banc), appeal denied, 929 A.2d 1161 (Pa. 2007); 

accord 204 Pa. Code § 303.9(e) (stating, “[a]ll numbers in sentence 

recommendations suggest months of minimum confinement pursuant to 42 

Pa.C.S. § 9755(b) (partial confinement) and § 9756(b) (total 

confinement)”). 
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determine whether this argument has raised a substantial question for our 

review.4

“The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis.” Commonwealth v. Edwards, 71 A.3d 

323, 330 (Pa. Super. 2013) (citations omitted), appeal denied, 81 A.3d 75 

(Pa. 2013). “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.” Id. 

(citations omitted). “Additionally, we cannot look beyond the statement of 

questions presented and the prefatory 2119(f) statement to determine 

whether a substantial question exists.” Commonwealth v. Provenzano, 

50 A.3d 148, 154 (Pa. Super. 2012).

 As noted above, Appellant’s sole preserved argument is that the trial 

court failed to take into account Appellant’s young age. Appellant’s Brief at 

10. This Court has consistently held that the trial court’s alleged failure to 

consider mitigating factors does not raise a substantial question for our 

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4 We reject the Commonwealth’s argument that Appellant’s claim is 

unreviewable on the ground that he received a negotiated minimum 

sentence. Although that is true, all parties acknowledge there was no 

agreement as to the maximum sentence. When this happens, this Court has 

explicitly permitted challenges to the discretionary aspects of sentencing 

regarding the maximum sentence imposed. Commonwealth v. Brown, 

982 A.2d 1017, 1019 (Pa. Super. 2009), appeal denied, 930 A.2d 726 (Pa. 

2010).
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review. Commonwealth v. Ratushny, 17 A.3d 1269, 1273 (Pa. Super. 

2011); accord Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 

2010). Therefore, we cannot address the merits of Appellant’s claim. See 

Edwards, supra.

Based on the foregoing, we deny Appellant’s petition for permission to 

appeal the discretionary aspects of his sentence.5 Accordingly, the trial 

court’s May 29, 2014 judgment of sentence is affirmed.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/13/2015

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5 Even if we were to address the merits, we note that the trial court did have 

the benefit of a PSI and stated on the record that it had considered the 

same. N.T., 5/29/14, at 2. When a trial court has the benefit of a PSI 

report, we presume that it “was aware of the relevant information regarding 

the defendant’s character and weighed those considerations along with 

mitigating statutory factors.” Commonwealth v. Walls, 926 A.2d 957, 967 

n.7 (Pa. 2007). Therefore, we would conclude Appellant’s argument is 

without merit.