J-S61037- 14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. TREVOR ELI RINGGOLD, Appellant No. 743 WDA 2014

Appeal from the Judgment of Sentence February 13 , 2013 in the Court of Common Pleas of Erie County Criminal Division at No(s): CP

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- CR -0000968-2012 BEFORE: FORD ELLIOTT, P.J.E., WECHT, and STRASSBURG ER, * JJ. MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 07, 2014 Trevor Eli Ringgold (Appellant) appeals from the Feb ruary 13, 2013 judgment of sentence of 90 to 180 months of incarcerati on, followed by three years of probation, entered following his plea of guilty to aggravated assault and prohibited offensive weapons. 1 We affirm. On November 11, 2011, Appellant, an inmate at SCI A lbion, assaulted another inmate by slashing his face with a razor blade and hitting him in th e face with a combination lock swung in a sock. N.T., 2/13 /2013, at 10. Appellant pled guilty to the counts listed above in exchange for the Commonwealth’s dismissal of other charges. Appellant req uested to proceed

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 2702(a)(1) and 908(a), respectively.J-S61037- 14

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immediately to sentencing. The sentencing court thereup on imposed the sentence detailed above, which fell in or below the mi tigated range of the sentencing guidelines. The sentencing court did provide that the sentence run consecutively to the sentence Appellant had been serv ing at the time of the assault. Appellant timely filed a post-sentence motion which was denied. No direct appeal was filed. Appellant’s direct appeal rig hts were reinstated following his timely filing of a PCRA petition. Accor dingly, Appellant filed a notice of appeal, and both Appellant and the sentenci ng court complied with Pa.R.A.P. 1925. Appellant presents the following question for this Cour t’s consideration: “Whether the sentencing court committed leg al error and abused its discretion in failing to impose the instant sentence concurrently to the sentence [Appellant] was then serving and in failin g to afford consideration to the institutional penalties already im posed by the Department of Corrections as to mitigating the instant sanctions imposed?” Appellant’s Br ief at 2. Appellant’s question challenges the discretionary aspects o f his
sentence. 2 Accordingly, we bear in mind the following.

____________________________________________ 2 Because the plea agreement was open as to his sentence, A ppellant is not precluded from challenging the discretionary aspects of sen tencing. See Commonwealth v. Brown , 982 A.2d 1017, 1019 (Pa. Super. 2009).J-S61037- 14

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A challenge to the discretionary aspects of a sentence must be considered a petition for permission to appeal, as the r ight to pursue such a claim is not absolute. Two requirements must be met before we will review this challenge on its merits. First, an appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with resp ect to the discretionary aspects of a sentence. Second, the appellan t must show that there is a substantial question that the senten ce imposed is not appropriate under the Sentencing Code. The determination of whether a particular issue raises a sub stantial question is to be evaluated on a case- by -case basis. In order to establish a substantial question, the appellant must sho w actions by the trial court inconsistent with the Sentencing Cod e or contrary to the fundamental norms underlying the sente ncing process. Commonwealth v. Bowen , 55 A.3d 1254, 1262-63 (Pa. Super. 2012), appeal denied , 64 A.3d 630 (Pa. 2013) (quoting Commonwealth v. McAfee , 849 A.2d 270, 274 (Pa. Super. 2004)). Appellant’s brief includes a statement of reasons relied upon for allowance of appeal, in which he claims that the sent ence is contrary to the norms underlying the sentencing process because the sentencin g court “failed to afford due weight and consideration to mit igating factors,” and “failed to proffer a legally suffic ient statement on the record in support of a consecutive sentence.” Appellant’s Brief at 5. A claim that the sentencing court did not consider adequ ately certain mitigating factors does not raise a substantial question

. Commonwealth v. Johnson , 961 A.2d 877, 880 (Pa. Super. 2008). However, “[a]n allegation that a judge failed to offer specific reaso ns for [a] sentence does raise a substantial question.” Commonwealth v. Dunphy , 20 A.3d 1215,J-S61037- 14

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1222 (Pa. Super. 2011) (internal quotations and cita tions omitted). Therefore, we grant permission to appeal as to the que stion of the adequacy of the sentencing court’s on -the-record statement of reasons for the
sentence. 3 Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed o n appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgme nt. 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, preju dice, bias or ill will, or arrived at a manifestly unreasonable decision. * * * When imposing sentence, a court is required to consider the particular circumstances of the offense and the char acter of the defendant. In considering these factors, the court s hould refer to the defendant’s prior criminal record, age, p ersonal characteristics and potential for rehabilitation. Commonwealth v. Antidormi , 84 A.3d 736, 760-61 (Pa. Super. 2014) (internal citations and quotation marks omitted). See also 42 Pa.C.S. § 9721 (“[T]he court shall follow the general principle that the sentence imposed should call for confinement that is consistent w ith the protection of

____________________________________________ 3 Appellant’s post -sentence motion asks the sentencing court to impose this sentence concurrent rather than consecutive to the sentence he was already serving. However, it does not raise an objection to t he sufficiency of the reasons offered by the sentencing court for the consecuti ve sentencing scheme. Although Appellant arguably failed to preserv e this claim, we decline to find waiver. See Commonwealth v. Egan , 679 A.2d 237, 239 (Pa. Super. 1996) (declining to find waiver of challe nge to trial court’s failure to offer reasons for sentence, as such claim can be review ed by examining the sentencing transcript).J-S61037- 14

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the public, the gravity of the offense as it relates t o the impact on the life of the victim and on the community, and the rehabilitati ve needs of the defendant.”). [W]hether or not there is a departure from the guide lines, a court imposing sentence for a felony or misdemeanor shal l make part of the record, and disclose in open court during se ntencing, a statement of the reasons for the sentence. The court is not required to parrot the words of the Sentencing Code, stating every factor that must be considered under Section 9721( b). However, the record as a whole must reflect due consider ation by the court of the statutory considerations [enunciated in that section]. Commonwealth v. Coulverson , 34 A.3d 135, 145 (Pa. Super. 2011) (quoting Commonwealth v. Feucht , 955 A.2d 377, 383 (Pa. Super. 2008)). With these principles in mind, we examine the reasons o ffered by the sentencing court on the record at Appellant’s sentencing hearing.

I have listened to the evidence presented here today a nd I have read the prior history which isn’t good. It involves a significant number of robberies. I do note that this i nvolved the use of another homemade weapon, so to speak, which isn’t good, so that even while incarcerated, you pose a risk to others. Now, having said that, I also take into account your a ge, the fact that you now have a GED, you have some work history, and you have accepted responsibility by way of your te stimony at the preliminary hearing and by way of your plea here today. N.T., 2/13/2013, at 24-25. The sentencing court then went on to order what Appellant acknowledges was a mitigated range sentence on the aggravated assault conviction, and a sentence below the mitigated range on the weapons conviction. Id. at 26-26. Given the sentence imposed, andJ-S61037- 14

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the sentencing court’s on -the-record explanation for it, we are utterly unconvinced that Appellant’s sentence resulted from part iality, prejudice, bias, or ill will against him or is otherwise manifest ly unreasonable to his detr iment. Indeed, if Appellant’s sentence had run concurre ntly with the lengthy sentences he already was serving, Appellant woul d serve virtually no additional time for the serious offenses he committed wh ile imprisoned. The sentencing court’s refusal to en dorse punishment-free inmate violence was not an abuse of discretion. Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/7/2014