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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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, 2016
               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 the judgment of

sentence imposed following his entry of a guilty plea 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 during which Appellant

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*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2702(a)(4) and 5126(a), respectively.
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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 pending against

Appellant.     (See N.T. Guilty Plea, at 8).         On January 19, 2016, after

consideration of a pre-sentence investigation report (PSI), the court imposed

an aggregate, standard-range sentence of not less than 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 review:

       I. Whether the [s]entencing [c]ourt abused its discretion in
       imposing a sentence of not less than three and a half (3 ½)
       years and not more than seven (7) years[’] incarceration as said
       sentence is too severe and excessive based on the
       circumstances?

       II. Whether the sentence imposed by the [s]entencing [c]ourt
       violates the Eighth Amendment because [Appellant’s] repeat

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2
  Appellant’s juvenile offenses were used in calculating his prior record score.
See 204 Pa.Code § 303.6 (sentencing guideline directing 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, at 17).
3
   Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on March 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).



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      felon prior record status is based completely on juvenile
      offenses?

      III. Whether the sections of the sentencing guidelines which
      allow for a juvenile adjudication to be counted in the prior record
      score the same as an adult conviction as in the present case is
      [sic] unconstitutional?

(Appellant’s Brief, at 3).

      In his first issue, Appellant challenges the discretionary aspects of his

sentence, arguing that it is excessive and severe in light of his young age

and the fact that “a vast majority of [his] criminal 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 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 [, see Pa.R.A.P. 2119(f)]; and
      (4) whether the concise statement raises a substantial question
      that the sentence is appropriate under the sentencing code. . . .
      [I]f the appeal satisfies each of these four requirements, we will
      then proceed to decide the substantive merits of the 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, preserved his claim in

the trial court, and included a Rule 2119(f) statement in his brief. See id.

With respect to the fourth requirement, “this Court has held that an



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excessive sentence claim—in conjunction with an assertion that the court

failed    to     consider    mitigating   factors—raises   a    substantial    question.”

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014), appeal

denied, 105 A.3d 736 (Pa. 2014) (citations omitted).                Therefore, we will

review Appellant’s claim on the merits.

         Our standard of review is as follows:

               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. An abuse of
         discretion is more than just an error in judgment and, on appeal,
         the trial court will not be found to have abused its discretion
         unless the record discloses that the judgment exercised was
         manifestly unreasonable, or the result of partiality, 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 judge had the benefit

of a [PSI] report, it will be presumed that he or she was aware of the

relevant information regarding the defendant’s character and weighed those

considerations along with mitigating statutory factors.” 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      emphasized

Appellant’s young age and that his juvenile offenses contributed to his prior

record score. (See N.T. Sentencing, at 4, 6). Before imposing its standard-

range sentence, the trial court noted that it had considered all of the


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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 serious bodily injury to the

victim, and the fact that Appellant was on parole when 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 mitigating factors.               See

Ventura, supra at 1135. Accordingly, we conclude that the trial court did

not abuse its discretion in imposing Appellant’s sentence.            See Clarke,

supra at 1287. Appellant’s first issue lacks merit.

       We will address Appellant’s second and third issues challenging the

legality of his sentence together because they essentially raise the same

claim.4   Specifically, Appellant argues that his sentence is unconstitutional

and violates the Eighth Amendment to the United States Constitution

because his juvenile offenses were used to calculate 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 pages 1-
2), we will nevertheless address it because a “claim[] 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).



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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 offenses
       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]ppellant’s
       contention that the sentencing guidelines fail to recognize the
       lack of maturity of a youthful offender holds little sway in the
       instant circumstances.     Moreover, the sentencing guidelines
       attempt to ensure that a defendant knows the prior juvenile
       adjudications that will be used during subsequent adult
       sentencing proceedings by limiting such use to those committed
       after he turned 14 and that (typically) occurred within the past
       14 years. 204 Pa.Code §§ 303.6(a)(1), 303.6(c). They 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 constitutionality of a sentencing
guideline raises a pure question of law, our standard of review is de novo
and our scope of review is plenary.” Bonner, supra at 597 (citation
omitted).




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                                *    *    *

     . . . [O]ur own independent evaluation indicates that use of a
     juvenile adjudication in calculating an adult defendant’s prior
     record score does not violate the proportionality principles 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 Guidelines fully
     complies with the Eighth Amendment as interpreted by Roper,
     Graham, and Miller.

Bonner, supra at 600–01, 603 (some case citations and footnote omitted).

     Thus, prior precedent of this Court makes clear that use of Appellant’s

juvenile offenses in calculating his prior record score was constitutionally

sound. See id. Therefore, Appellant’s second and third issues do not merit

relief. Accordingly, we affirm the judgment of sentence.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/22/2016




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