J-S25026-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DAVID JAMARR BARKSDALE

Appellant No. 1603 WDA 2014

Appeal from the Judgment of Sentence entered August 28, 2014

In the Court of Common Pleas of Erie County

Criminal Division at No: CP-25-CR-0002804-2013

BEFORE: BENDER, P.J.E., STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.: FILED JULY 28, 2015

Appellant, David Jamarr Barksdale, appeals from the judgment of 

sentence the Court of Common Pleas of Erie County entered August 28, 

2014. On appeal, Appellant challenges the discretionary aspects of his 

sentence. Upon review, we affirm.

The trial court summarized the background of this matter as follows:

On May 7, 2014, the Appellant appeared before [the trial court] 

and entered a negotiated no contest plea [to statutory sexual 

assault, and corruption of minors]. The charge[s] involved the 

Appellant’s commission of sexual intercourse with the fourteen[-

]year[-]old victim. The events took place between June[] 2013 

through July[] 2013 in the City of Erie.

On August 28, 2014, the Appellant was sentenced . . . to 30 to 

60 months[’] incarceration [on the statutory sexual assault 

____________________________________________

*Retired Senior Judge assigned to the Superior Court.
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conviction] and . . . 9 to 24 months[’] incarceration [on the 

corruption of minors conviction] to run consecutively to [the 

statutory sexual conviction]. The aggregate sentence was 39 to 

84 months. . . . [On August 29, 2014, Appellant filed a motion 

for reconsideration of sentence, which the trial court denied on 

September 2, 2014.1]

Appellant filed a [n]otice of [a]ppeal and a [c]oncise [s]tatement 

of [m]atters [sic] [c]omplained of on [a]ppeal on September 30, 

2014 pursuant to Pa.R.A.P. 1925. 

Trial Court Opinion, 11/17/14, at 1 (citations to record omitted) (footnote 

omitted). 

On appeal, Appellant argues that the imposition of consecutive 

sentences and the trial court’s alleged failure to consider mitigating factors 

make his aggregate sentence excessive.2 Appellant is entitled to no relief on 

his challenge to the discretionary aspects of his sentence. 

____________________________________________

1

In both his motion for reconsideration and his Rule 1925(b) statement, 

Appellant challenged the discretionary aspects of the sentence to the extent 

the trial court imposed consecutive sentences.

2

In his statement of questions involved, Appellant challenges only the trial 

court’s failure to consider mitigating factors. See Appellant’s Brief at 4. In 

the argument section of the brief, however, Appellant adds another reason 

for challenging the sentence, i.e., the trial court abused its discretion in 

sentencing Appellant to consecutive sentences. Id. at 10-11. Failure to 

include the latter issue in the statement of questions involved is generally 

fatal. See Pa.R.A.P. 2116(a) (“[N]o question will be considered unless 

stated in statement of questions involved or fairly suggested thereby”); 

Commonwealth v. Fremd, 860 A.2d 515, 523-24 (Pa. Super. 2004) (“In 

his brief, appellant also argues that the police conduct was so outrageous as 

to bar conviction even if entrapment is not found. Appellant failed to raise 

this issue in the ‘Statement of Questions Involved’ portion of his appellate 

brief and it is, therefore, waived.”). Despite the waiver, we will address the 

merits of the contention.
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We begin by addressing [the] standard of review in sentencing 

matters:

Sentencing is a matter vested in the sound discretion 

of the sentencing judge, and a sentence will not be 

disturbed on appeal absent a manifest abuse of 

discretion. In this context, an abuse of discretion is 

not shown merely by an error in judgment. 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, prejudice, bias or ill will, or 

arrived at a manifestly unreasonable decision.

Commonwealth v. Hoch, 936 A.2d 515, 517–18 (Pa. Super. 

2007) (citation omitted).

The right to appellate review of the discretionary aspects of a 

sentence is not absolute, and must be considered a petition for 

permission to appeal. See Hoch, 936 A.2d at 518 (citation 

omitted). An appellant must satisfy a four-part test to invoke 

this Court’s jurisdiction when challenging the discretionary 

aspects of a sentence.

[W]e conduct a four-part analysis to determine: (1) 

whether appellant has filed a timely notice of appeal; 

(2) whether the issue was properly preserved at 

sentencing or in a motion to reconsider and modify 

sentence; (3) whether appellant’s brief has a fatal 

defect; and (4) whether there is a substantial 

question that the sentence appealed from is not 

appropriate under the Sentencing Code.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 

2010) (citations omitted).

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

(en banc).

Here, it is undisputed that Appellant timely filed a notice of appeal, 

timely filed a post-sentence motion raising a discretionary issue, and 
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included a Pa.R.A.P. 2119(f) statement in his brief. The only issue is 

whether he raised a substantial question for our review. 

Whether a particular challenge to a sentence amounts to a 

substantial question is determined on a case-by-case 

basis. See Commonwealth v. Coulverson, 34 A.3d 135, 

142 (Pa. Super. 2011) (citation omitted). “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. Glass, 50 A.3d 720, 727 (Pa. Super. 

2012) (citations and internal quotation marks omitted).

Buterbaugh, 91 A.3d at 1266. 

Appellant argues the trial court abused its discretion in sentencing 

Appellant to consecutive as opposed to concurrent sentences. Generally, a 

challenge to the imposition of consecutive rather than concurrent sentences

does not present a substantial question regarding the discretionary aspects

of sentence. See, e.g., Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. 

Super. 2014); Commonwealth v. Austin, 66 A3d 798, 808 (Pa. Super. 

2013). However, 

we have recognized that a sentence can be so manifestly 

excessive in extreme circumstances that it may create a 

substantial question. When determining whether a substantial 

question has been raised, we have focused upon “whether the 

decision to sentence consecutively raises the aggregate sentence 

to, what appears upon its face to be, an excessive level in light 

of the criminal conduct in this case.” 

Zirkle, 107 A.3d at 133-34 (quoting Commonwealth v. Mastromarino, 2 

A.3d 581, 588 (Pa. Super. 2010)).
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Here, the trial court sentenced Appellant to an aggregate sentence of 

39 to 84 months’ imprisonment in connection with his no contest plea to 

statutory sexual assault and corruptions of minors. Appellant had sexual 

intercourse with a fourteen-year-old victim. At the time of the crimes, 

Appellant was thirty-five years old. We do not find this sentence to be 

extreme under the circumstances. Appellant, therefore, failed to raise a 

substantial question for our review. 

Similarly, Appellant fails to raise a substantial question for our review 

regarding the alleged trial court’s failure to consider mitigating factors. 

“[T]his Court has held on numerous occasions that a claim of inadequate 

consideration of mitigating factors does not raise a substantial question for 

our review.” Commonwealth v. Matroni, 923 A.2d 444, 455 (Pa. Super. 

2007). Moreover, the record belies the argument. A review of the record 

reveals that the trial court reviewed, inter alia, the presentence investigation 

report. N.T. Sentencing, 8/28/14, at 22. “Our Supreme Court has 

determined that where the trial court is informed by a pre-sentence report, 

it is presumed that the court is aware of all appropriate sentencing factors 

and considerations, and that where the court has been so informed, its 

discretion should not be disturbed.” Commonwealth v. Ventura, 975 A.2d 

1128, 1145 (Pa. Super. 2009) (citing Commonwealth v. Devers, 546 A.2d 

12, 18–19 (Pa. 1988)).
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Even if we were to assume Appellant raised a substantial question for 

our review, we would conclude no relief is due. 

In relevant part, Section 9781 of the Sentencing Code provides:

(c) Determination on appeal.--The appellate court shall 

vacate the sentence and remand the case to the sentencing 

court with instructions if it finds:

(1) the sentencing court purported to sentence within the 

sentencing guidelines but applied the guidelines erroneously; 

(2) the sentencing court sentenced within the sentencing 

guidelines but the case involves circumstances where the 

application of the guidelines would be clearly unreasonable; or 

(3) the sentencing court sentenced outside the sentencing 

guidelines and the sentence is unreasonable. 

In all other cases the appellate court shall affirm the sentence 

imposed by the sentencing court.

(d) Review of record.--In reviewing the record the appellate 

court shall have regard for:

(1) The nature and circumstances of the offense and the history 

and characteristics of the defendant. 

(2) The opportunity of the sentencing court to observe the 

defendant, including any presentence investigation. 

(3) The findings upon which the sentence was based. 

(4) The guidelines promulgated by the commission. 

42 Pa.C.S.A. § 9781(c), (d).

Here, Appellant acknowledges the sentence was within the guidelines. 

Appellant’s Brief at 10. Thus, the question is whether the sentence, under 

the circumstance, was clearly unreasonable. 
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In determining whether a particular sentence is ‘clearly 

unreasonable’ or ‘unreasonable,’ the appellate court must 

consider the defendant’s background and characteristics as well 

as the particular circumstances of the offense involved, the trial 

court’s opportunity to observe the defendant, the presentence 

investigation report, if any, the Sentencing Guidelines as 

promulgated by the Sentencing Commission, and the ‘findings' 

upon which the trial court based its sentence.

Coulverson, 34 A.3d at 147. 

Here, upon review of the record before us, and in particular the 

applicable sentencing guidelines, the findings upon which the trial court 

based the sentence, see N.T. Sentencing, 8/28/14, at 22-27, and the 

circumstances of the offense, id.; see also N.T. Plea, 5/7/14, at 9-11, we 

would conclude the sentence is not clearly unreasonable. Thus, even if we 

had reached the merits of the issue, we would have found the trial court did 

not abuse its discretion in fashioning Appellant’s sentence.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/28/2015