J-S65031-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. ANTHONY TYLER CAMPBELL, Appellant No. 206 WDA 2016

Appeal from the Judgment of Sentence January 19, 20 16 in the Court of Common Pleas of Somerset County Criminal Division at Nos.: CP-56-CR-0000746-2014

CP-56-CR-0000747-2014
BEFORE: LAZARUS, J., OLSON, J., and PLATT, J. * MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 22, 2016 Appellant, Anthony Tyler Campbell, appeals from th e judgment of sentence imposed following his entry of a guilty pl ea to aggravated assault and flight to avoid apprehension. 1 On appeal, he challenges the discretionary aspects and legality of his sentence. We affirm. The relevant facts and procedural history of this case are as follows. On October 19, 2015, Appellant entered a counseled, open guilty plea to the above-mentioned charges at Docket Nos. 746-2014 and 747-2014. The charges stem from an August 15, 2014 incident durin g which Appellant

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* Retired Senior Judge assigned to the Superior Cour t.

1 18 Pa.C.S.A. §§ 2702(a)(4) and 5126(a), respective ly.J-S65031-16

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entered the victim’s apartment without permission, stabbed him in the head and face with a suspected knife or switchblade, and subsequently attempted to conceal himself from police. ( See N.T. Guilty Plea, 10/19/15, at 3-4; Affidavit of Probable Cause, 8/15/14). In exchange for the plea, the Commonwealth withdrew several other charges then pe nding against Appellant. ( See N.T. Guilty Plea, at 8). On January 19, 2016, afte r consideration of a pre-sentence investigation repor t (PSI), the court imposed an aggregate, standard-range sentence of not less t han three and one-half nor more than seven years’ incarceration. ( See N.T. Sentencing, 1/19/16, at 7). 2 This timely appeal followed. 3 Appellant raises the following issues for our revi ew: I. Whether the [s]entencing [c]ourt abused its disc retion in imposing a sentence of not less than three and a ha lf (3 1⁄2) years and not more than seven (7) years[’] incarcer ation as said sentence is too severe and excessive based on the circumstances? II. Whether the sentence imposed by the [s]entencin g [c]ourt violates the Eighth Amendment because [Appellant’s] repeat

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2 Appellant’s juvenile offenses were used in calcula ting his prior record score. See 204 Pa.Code § 303.6 (sentencing guideline directin g the counting of prior juvenile adjudications in prior record score where certain criteria met); ( see also Commonwealth’s Brief, at 3-4; Appellant’s Brief, a t 17).

3 Pursuant to the trial court’s order, Appellant fil ed a timely concise statement of errors complained of on appeal on Marc h 1, 2016. See Pa.R.A.P. 1925(b). The court filed a Rule 1925(a) statement on March 2, 2016, referring this Court to the sentencing order and transcript entered January 19, 2016, for the reasons for its sentence. See Pa.R.A.P. 1925(a).J-S65031-16

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felon prior record status is based completely on ju venile offenses? III. Whether the sections of the sentencing guideli nes which allow for a juvenile adjudication to be counted in the prior record score the same as an adult conviction as in the pre sent case is [sic] unconstitutional? (Appellant’s Brief, at 3). In his first issue, Appellant challenges the discr etionary aspects of his sentence, arguing that it is excessive and severe i n light of his young age and the fact that “a vast majority of [his] crimina l record was juvenile offenses.” ( Id. at 12; see id. at 11-13). This issue does not merit relief. It is well-settled that “[t]he right to appeal the discretionary aspects of a sentence is not absolute.” Commonwealth v. Dunphy , 20 A.3d 1215, 1220 (Pa. Super. 2011) (citation omitted).

Before we reach the merits of this [issue], we must engage in a four part analysis to determine: (1) whether t he appeal is timely; (2) whether Appellant preserved his issue; (3) whether Appellant’s brief includes a concise statement of t he reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence [, see Pa.R.A.P. 2119(f)]; and (4) whether the concise statement raises a substant ial question that the sentence is appropriate under the sentenci ng code. . . . [I]f the appeal satisfies each of these four requir ements, we will then proceed to decide the substantive merits of th e case. Commonwealth v. Edwards , 71 A.3d 323, 329-30 (Pa. Super. 2013), appeal denied , 81 A.3d 75 (Pa. 2013) (citation omitted). In the instant case, Appellant timely appealed, pre served his claim in the trial court, and included a Rule 2119(f) statem ent in his brief. See id. With respect to the fourth requirement, “this Court has held that anJ-S65031-16

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excessive sentence claim—in conjunction with an ass ertion that the court failed to consider mitigating factors—raises a subst antial question.” Commonwealth v. Raven , 97 A.3d 1244, 1253 (Pa. Super. 2014), appeal denied , 105 A.3d 736 (Pa. 2014) (citations omitted). The refore, we will review Appellant’s claim on the merits.
Our standard of review is as follows: Sentencing is a matter vested in the sound discreti on of the sentencing judge, and a sentence will not be di sturbed on appeal absent a manifest abuse of discretion. An a buse of discretion is more than just an error in judgment a nd, on appeal, the trial court will not be found to have abused it s discretion unless the record discloses that the judgment exerc ised was manifestly unreasonable, or the result of partialit y, prejudice, bias, or ill-will. Commonwealth v. Clarke , 70 A.3d 1281, 1287 (Pa. Super. 2013), appeal denied , 85 A.3d 481 (Pa. 2014) (citation omitted). We are also mindful that, “where the sentencing ju dge had the benefit of a [PSI] report, it will be presumed that he or s he was aware of the relevant information regarding the defendant’s char acter and weighed those considerations along with mitigating statutory fact ors.” Commonwealth v.
Ventura , 975 A.2d 1128, 1135 (Pa. Super. 2009), appeal denied , 987 A.2d 161 (Pa. 2009) (citation omitted). Here, at the sentencing hearing, defense counsel em phasized Appellant’s young age and that his juvenile offense s contributed to his prior record score. ( See N.T. Sentencing, at 4, 6). Before imposing its sta ndardrange sentence, the trial court noted that it had c onsidered all of theJ-S65031-16

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information before it including the PSI report, the seriousness of the assault in that it involved a deadly weapon and caused seri ous bodily injury to the victim, and the fact that Appellant was on parole w hen he committed the instant offenses. ( See id. at 7). Thus, the record reflects that the court was well aware of the facts of this case and mitiga ting factors. See
Ventura , supra at 1135. Accordingly, we conclude that the trial court did not abuse its discretion in imposing Appellant’s se ntence. See Clarke , supra at 1287. Appellant’s first issue lacks merit. We will address Appellant’s second and third issue s challenging the legality of his sentence together because they esse ntially raise the same claim. 4 Specifically, Appellant argues that his sentence is unconstitutional and violates the Eighth Amendment to the United Sta tes Constitution because his juvenile offenses were used to calculat e his prior record score. ( See Appellant’s Brief, at 13-20). Relying primarily on Roper v. Simmons , 543 U.S. 551 (2005), Graham v. Florida , 130 S.Ct. 2011 (2010), and Miller v. Alabama , 132 S.Ct. 2455 (2012), Appellant maintains that juvenile adjudications must be treated differently than adult convictions

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4 Although Appellant failed to include this claim in his Rule 1925(b) statement, ( see Rule 1925(b) statement, 3/01/16, at unnumbered pag es 1- 2), we will nevertheless address it because a “clai m[] pertaining to the legality of sentence [is] non-waivable, . . . [and] is not even waived by a party’s failure to include it in a Pa.R.A.P. 1925(b ) statement.” Commonwealth v. Foster , 960 A.2d 160, 163 (Pa. Super. 2008), affirmed , 17 A.3d 332 (Pa. 2011) (citations omitted).J-S65031-16

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when calculating a prior record score. ( See Appellant’s Brief, at 13-16). The Commonwealth, however, contends that Appellant’ s claim fails and is controlled by this Court’s decision in Commonwealth v. Bonner , 135 A.3d 592 (Pa. Super. 2016). ( See Commonwealth’s Brief, at 4). We agree with the Commonwealth. 5

In Bonner , a panel of this Court considered whether section 303.6 of the Pennsylvania Sentencing Guidelines violates the proportionality principles of the Eighth Amendment. The Bonner Court held: Roper , Graham , and Miller all addressed the constitutionality of sentencing a defendant for off enses committed as a juvenile. In this case, [a]ppellant was an adult when he committed the instant offenses. Thus, Roper , Graham , and Miller are inapposite. Here, [a]ppellant is being held to account for conduct and choices he made as an adult with full knowledge of the nature and scope of his own criminal past, including juvenile adjudications. Thus, [a]p pellant’s contention that the sentencing guidelines fail to r ecognize the lack of maturity of a youthful offender holds littl e sway in the instant circumstances. Moreover, the sentencing gu idelines attempt to ensure that a defendant knows the prior juvenile adjudications that will be used during subsequent a dult sentencing proceedings by limiting such use to thos e committed after he turned 14 and that (typically) occurred wi thin the past 14 years. 204 Pa.Code §§ 303.6(a)(1), 303.6(c). T hey also include only the most serious adjudication of each disposition, effectively giving the defendant a volume discount for criminal conduct committed as a juvenile. 204 Pa.Code § 303 .6(b).

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5 We note that because “the review of the constituti onality of a sentencing guideline raises a pure question of law, our standa rd of review is de novo and our scope of review is plenary.” Bonner , supra at 597 (citation omitted).J-S65031-16

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* * * . . . [O]ur own independent evaluation indicates th at use of a juvenile adjudication in calculating an adult defen dant’s prior record score does not violate the proportionality p rinciples of the Eighth Amendment of the United States Constitution and Article 1, § 13 of the Pennsylvania Constitution. Instead, we hold that section 303.6 of the Pennsylvania Sentencing Guidel ines fully complies with the Eighth Amendment as interpreted b y Roper , Graham , and Miller

. Bonner , supra at 600–01, 603 (some case citations and footnote o mitted). Thus, prior precedent of this Court makes clear th at use of Appellant’s juvenile offenses in calculating his prior record s core was constitutionally sound. See id. Therefore, Appellant’s second and third issues do not merit relief. Accordingly, we affirm the judgment of sen tence. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/22/2016