Com. v. Graham, V. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VINCENT ERIC GRAHAM :
:
Appellant : No. 472 MDA 2020
Appeal from the Judgment of Sentence Entered February 24, 2020
In the Court of Common Pleas of Luzerne County Criminal Division at No(s):
CP-40-CR-0000975-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VINCENT ERIC GRAHAM, II :
:
Appellant : No. 473 MDA 2020
Appeal from the Judgment of Sentence Entered February 24, 2020
In the Court of Common Pleas of Luzerne County Criminal Division at No(s):
CP-40-CR-0000976-2019
BEFORE: BENDER, P.J.E., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: MAY 6, 2021
Vincent Eric Graham, II (Appellant) appeals from his judgment of
sentence entered in Luzerne County Court of Common Pleas, as a result of his
plea to two sets of drug charges. We previously remanded this matter so that
the trial court could prepare an opinion per Pa.R.A.P. 1925.1 The trial court
1 The trial court initially, and reasonably, believed Appellant to have violated
the court-imposed deadline to submit a statement per Pa.R.A.P. 1925(b).
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having done so, we now review this matter and affirm the trial court’s
judgment of sentence.
Appellant made an agreement with the Commonwealth whereby he
entered guilty pleas to two charges of possession with the intent to deliver
(PWID)2 Oxycodone, between 100 and 1000 pills, and one charge of
possession of a small amount of marijuana.3 In exchange for entering an open
plea and for his agreement to pay laboratory fees, to forfeit certain funds, and
to pay the costs of prosecution, the Commonwealth agreed to withdraw other
charges. N.T. Plea Hrg., 11/4/19, at 2-3. The details of the incidents leading
to Appellant’s arrest are detailed in a prior opinion of this Court.4
However, the court’s order per Rule 1925 was entered on March 13, 2020,
during the early days of our nation’s response to COVID-19. Our Supreme
Court had entered an order extending all filing deadlines, and that order
covered Appellant’s deadline to file a responsive statement and rendered
Appellant’s statement timely filed, though in the absence of the statewide
order it would not have been. See In re Gen. Statewide Judicial
Emergency, 229 A.3d 229, 230 (Pa. Apr. 1, 2020) (“any legal papers or
pleadings which are required to be filed between March 19, 2020, and April
30, 2020, SHALL BE DEEMED to have been timely filed if they are filed by May
1, 2020, or on a later date as permitted by the appellate or local court in
question.”). Thus, we remanded to give the trial court an opportunity to
respond to the content of Appellant’s statement. The parties were permitted
to file supplemental briefs in response to the trial court’s opinion.
2 35 P.S. § 780-113(a)(30).
3 35 P.S. § 780-113(a)(31).
4 See Commonwealth v. Graham, 473 MDA 2020 (Pa. Super. Nov. 23,
2020) at 2.
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Ultimately, Appellant was sentenced to an aggregate term of 84 to 168
months’ imprisonment, where two consecutive terms of 42 to 84 months’
imprisonment were imposed for each PWID conviction, with a concurrent 15
to 30 days’ imprisonment for Appellant’s marijuana conviction. Order,
2/24/20.5
Appellant’s sole challenge on appeal is to the discretionary aspects of
his sentence. He filed a statement pursuant to Pa.R.A.P. 1925(b), in which
he argues that his sentence, which was in the standard range but consecutive,
is excessive.6 It is not the sentences per se but their having been imposed
consecutively that prompts his claim.
Appellant argues that the trial court’s statement in support of its
sentence is insufficient, and fails to reflect consideration of statutory
requirements. Appellant’s Supplemental Brief at 15. Further, Appellant
5 On May 5th, this Court issued a rule to show cause why these consolidated
appeals should not be quashed in light of Commonwealth v. Walker, 185
A.3d 969 (Pa. 2018). Because Appellant has demonstrated that he filed two
distinct appeals (by, for instance, paying separate filing fees as to each
appeal) and because this Court has declined to quash in similar circumstances,
see Commonwealth v. Jerome Johnson, 236 A.3d 1141 (Pa. Super.
2020)(en banc), we decline to quash here.
6 Appellant was arrested in December of 2018, which means that the fourth
amendment to the Seventh Edition of the Sentencing Guidelines applied to his
sentence. PWID of a Schedule I or II drug (such as Oxycodone), 100-1000
pills, carries an offense gravity score of eleven. See Sentencing Guidelines,
7th Edition Amendment 4 Supplement (Effective 6/1/2018), at 303.15
(offense listing). Applying the matrix, a prior record score of zero and offense
gravity score of eleven yields a standard range of 36 to 54 months.
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contends that the trial court failed to consider his prior record, age, personal
characteristics, and rehabilitative potential in crafting his sentence. Id.The Commonwealth argues that Appellant’s claims are not properly
preserved, that he has not presented a substantial question, and that the trial
court did not abuse its discretion in imposing sentence. Commonwealth’s
Supplemental Brief at 7.
The trial court treated Appellant’s discretionary aspects claim as
preserved and addressed its substance, offering a powerful description of its
sentencing powers and rationale. The trial court points out that “[a] bald claim
of excessiveness due to the consecutive nature of a sentence will not raise a
substantial question.” Trial Court Supplemental Opinion at 4 (unpaginated),
quoting Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013).
The trial court confirms that it reviewed the pre-sentence report prepared for
Appellant’s sentencing, and elected to impose low-standard range sentences
but to impose them consecutively, as Appellant committed two distinct felony
drug offenses ten days apart from one another, and is not entitled to a
“volume discount.” See id. at 4-5.
Trial courts have broad discretion in imposing sentence, and we review
any exercise of that discretion for abuses thereof. Commonwealth v. Smith,
673 A.2d 893, 895 (Pa. 1996). An abuse of discretion, as opposed to a mere
error of judgment, is manifestly unreasonable or the result of partiality,
prejudice, bias, or ill-will. Id. We will not reverse in scenarios where this
Court might have exercised discretion differently, but only where the sentence
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imposed reflects the aforementioned factors, or is so devoid of support as to
be clearly erroneous. Commonwealth v. Moury, 992 A.2d. 162, 170 (Pa.
Super. 2010). Where the trial court consults a pre-sentence report prior to
sentencing, we presume that the court “was aware of relevant information
regarding the defendant’s character and weighed those considerations along
with mitigating statutory factors.” See Commonwealth v. Devers, 546 A.2d
12, 18 (Pa. 1988). “When imposing sentence, the court must consider both
the character of the defendant, and the particular circumstances of the offense
in light of the legislative guidelines for sentencing.” Commonwealth v.
Warden, 484 A.2d 151, 154 (Pa. Super. 1984) (citation omitted). “The
imposition of consecutive, rather than concurrent, sentences may raise a
substantial question in only the most extreme circumstances, such as where
the aggregate sentence is unduly harsh, considering the nature of the crimes
and the length of imprisonment.” Moury, 992 A.2d at 171–72 (citation
omitted).
[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence, see
Pa.R.Crim.P. [720]; (3) whether appellant's brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate under
the Sentencing Code, 42 Pa.C.S.[ ] § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006), appeal
denied, 909 A.2d 303 (Pa. 2006) (citations omitted). It appears that the
Commonwealth is correct that Appellant has not preserved his claim, as no
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objection was made at sentencing and no post-sentence motion was filed
pursuant to Pa.R.Crim.P. 720. “[A]n appellant can seek to appeal
discretionary sentencing issues only after preserving them during the
sentencing hearing or in post-sentence motions.” Commonwealth v.
Nischan, 928 A.2d 349, 355 (Pa. Super. 2007) (citation omitted).
We direct that a copy of the trial court’s opinion of December 22, 2020
be filed along with this memorandum and attached to any future filings in this
case.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/06/2021
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