J-S86018-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DWIGHT GILLESPIE

Appellant No. 290 WDA 2016

Appeal from the Judgment of Sentence January 26, 2016

In the Court of Common Pleas of Erie County

Criminal Division at No(s): CP-25-CR-0000918-2013

BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY MOULTON, J.: FILED MARCH 14, 2017

Dwight Gillespie appeals from the January 26, 2016 judgment of 

sentence entered in the Erie County Court of Common Pleas following his 

convictions for receiving stolen property.1 We affirm.

On March 13, 2014, following a jury trial, Gillespie was convicted of 

two counts of receiving stolen property. On May 27, 2014, the trial court 

sentenced Gillespie to 48 to 120 months’ incarceration at Count 11, to be 

served consecutively to a prior state sentence for which Gillespie was on 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 3925(a).
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parole.2 At Count 13, the trial court sentenced Gillespie to a concurrent 

term of 48 to 120 months’ incarceration. The trial court further directed 

Gillespie to pay restitution in the amount of $11,313.44. Gillespie filed a 

post-sentence motion, which the trial court denied on June 10, 2014. 

Gillespie did not file a direct appeal. Following a petition pursuant to the 

Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546, the trial court 

reinstated Gillespie’s appeal rights nunc pro tunc, and Gillespie appealed.

On December 10, 2015, we affirmed Gillespie’s conviction but vacated 

his judgment of sentence and remanded for a new sentence that would: 

award Gillespie credit for time served at CP-25-CR-0000918-2013, properly 

grade Gillespie’s offenses at Counts 11 and 13, and clarify the individuals 

and/or entities to whom restitution was payable and the amounts payable to 

each.

On January 26, 2016, the trial court re-sentenced Gillespie within the 

Sentencing Guidelines to 30 to 60 months’ incarceration at Count 11, with 

546 days credit for time served, and a consecutive 15 to 30 months’ 

incarceration at Count 13. The trial court further clarified that $499.99 of 

the total restitution amount was owed to Erie Insurance and $1,700.01 was 

owed to the victims.

____________________________________________

2 On July 8, 2009, the trial court had sentenced Gillespie to 21 to 240 

months’ incarceration following a conviction for criminal conspiracy—

burglary, 18 Pa.C.S. § 3502.
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Gillespie filed a post-sentence motion arguing the sentences should 

have been imposed concurrently rather than consecutively, which the trial 

court denied on February 2, 2016. On February 19, 2016, Gillespie timely 

filed a notice of appeal. 

Gillespie’s sole issue on appeal is whether the sentence imposed by 

the trial court was “manifestly excessive, clearly unreasonable and 

inconsistent with the objectives of the Sentencing Code after the trial court 

considered and relied on impermissible factors.” Gillespie’s Br. at 3.

Gillespie challenges the discretionary aspects of his sentence. 

“Challenges to the discretionary aspects of sentencing do not entitle an 

appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058, 

1064 (Pa.Super. 2011). Before we address such a challenge, we first 

determine:

(1) whether the appeal is timely; (2) whether Appellant 

preserved his issue; (3) whether Appellant’s brief includes 

a concise statement of the reasons relied upon for 

allowance of appeal with respect to the discretionary 

aspects of sentence; and (4) whether the concise 

statement raises a substantial question that the sentence 

is appropriate under the sentencing code.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting 

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)); 

see also Allen, 24 A.3d at 1064.

Gillespie filed a timely notice of appeal, preserved his claim in a timely 

post-sentence motion, and included in his brief a concise statement of 

reasons relied upon for allowance of appeal pursuant to Pennsylvania Rule of 
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Appellate Procedure 2119(f). We must now determine whether he has 

raised a substantial question that the sentence is inappropriate under the 

Sentencing Code. 

We evaluate whether a particular sentencing issue raises a substantial 

question on a case-by-case basis. Commonwealth v. Dunphy, 20 A.3d 

1215, 1220 (Pa.Super. 2011). A substantial question exists where a 

defendant raises a “plausible argument that the sentence violates a 

provision of the sentencing code or is contrary to the fundamental norms of 

the sentencing process.” Commonwealth v. Dodge, 77 A.3d 1263, 1268 

(Pa.Super. 2013) (citation and internal quotation marks omitted). Where a 

defendant receives consecutive sentences within the Guideline’s ranges, but 

application of the Guidelines would be clearly unreasonable, resulting in an 

excessive sentence, he may raise a substantial question. Id. at 1270. A 

bald claim of excessiveness due to the imposition of consecutive sentences, 

however, does not raise a substantial question. Id. 

Here, Gillespie argues that the trial court’s imposition of consecutive 

sentences resulted in an excessive period of incarceration.3 Gillespie does 

not address why his aggregate sentence, which is within the Guideline’s 

ranges, is clearly unreasonable; nor does he specify the allegedly 

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3

In Gillespie’s Rule 2119(f) statement, he argues that the trial court 

failed to consider the factors set out in 42 Pa.C.S. §9721(b). However, the 

only claim in the argument section of his brief is that the trial court abused 

its discretion in imposing consecutive, instead of concurrent, sentences.
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impermissible factors on which the trial court relied. His bald claim of 

excessiveness due to the consecutive nature of his sentence does not raise a 

substantial question. Id. (“[A] bald claim of excessiveness due to the 

consecutive nature of a sentence will not raise a substantial question.”). 

Even if Gillespie had raised a substantial question, however, we would 

conclude that his claim is meritless. “Sentencing is a matter vested within 

the discretion of the trial court and will not be disturbed absent a manifest 

abuse of discretion.” Commonwealth v. Crump, 995 A.2d 1280, 1282 

(Pa.Super. 2010). “An abuse of discretion requires the trial court to have 

acted with manifest unreasonableness, or partiality, prejudice, bias, or illwill, or such lack of support so as to be clearly erroneous.” Id. “A 

sentencing court need not undertake a lengthy discourse for its reasons for 

imposing a sentence or specifically reference the statute in question, but the 

record as a whole must reflect the sentencing court’s consideration of the 

facts of the crime and character of the offender.” Id. at 1283. 

At the re-sentencing hearing, the trial court explained:

The Court has considered the Pennsylvania Sentencing 

Code, the pre-sentence report and the Pennsylvania 

guidelines on sentencing. The court has also considered 

the statements of defense counsel, the defendant and the 

attorney for the Commonwealth. The Court has 

considered Mr. Gillespie’s age, his background, his 

character and rehabilitative needs, the nature, 

circumstances and seriousness of the offenses and the 

protection of the community. Mr. Gillespie, it does not 

appear here that you’ve used your time in prison to 

achieve some things that are of some benefit to you and 

will aid you when you are released back into society. The 
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re-sentencing places you before the Court with a different 

set of guidelines and the chance of a lesser sentence than 

was originally imposed. I have no problem with that. I 

am concerned, however, because you come before the 

Court as a repeat felony offender and you do have a long 

prior criminal history that goes back to 2001 when you 

were a juvenile -- excuse me 2000, which is 15 years. 

And they were mostly theft offenses but there are some 

assaults and burglary, and these charges involve theft as 

well. So it is pretty obvious that up to this point nothing 

that has been done by the juvenile court or by the adult 

courts have [sic] been able to rehabilitate or deter you. I 

hope this time is the final time that you come before this 

or any other court, but that’s up to you. Your track record 

does not bode well for the future, but you can change all of 

that this time around, if you want to. I don’t know if you 

will or not, but I do know that you need to serve the time 

for the crimes you’ve committed and for the actions that 

you’ve taken in violation of the law.

N.T., 1/26/16, at 11-12. 

It is clear from the record that the trial court considered the section 

9721(b) factors – “protection of the public, gravity of the offense as it 

relates to the impact on the life of the victim and on the community, and the 

rehabilitative needs of the defendant.” 42 Pa.C.S. §9721(b). The trial court 

also considered Gillespie’s pre-sentence report4and the applicable 

Sentencing Guidelines. After taking this all into consideration, the trial court 

imposed consecutive sentences. See Commonwealth v. Hoag, 665 A.2d 

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4

“Where pre-sentence reports exist, we . . . presume that the 

sentencing judge was aware of relevant information regarding the 

defendant's character and weighed those considerations along with 

mitigating statutory factors.” Commonwealth v. Macias, 968 A.2d 773, 

778 (Pa.Super. 2009) (quoting Commonwealth v. Devers, 546 A.2d 12, 

18 (Pa. 1988)).
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1212, 1214 (Pa.Super. 1995) (quoting Commonwealth v. Graham, 661 

A.2d 1367, 1373 (Pa. 1995) (“The general rule in Pennsylvania is that in 

imposing a sentence the court has discretion to determine whether to make 

it concurrent with or consecutive to other sentences then being imposed or 

other sentences previously imposed.”). We find the trial court has not 

abused its discretion. See id. (stating appellant should not be entitled to “a 

volume discount for his crimes by having all sentences run concurrently”).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/14/2017