Com. v. Allah, C. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
C. DIVINE ALLAH
Appellant No. 1507 EDA 2015
Appeal from the Judgment of Sentence April 22, 2015
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0007641-2014
BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED JANUARY 27, 2016
Appellant C. Divine Allah appeals from the judgment of sentence
entered in the Bucks County Court of Common Pleas following his guilty plea
to two counts of possession of a controlled substance with an intent to
deliver (“PWID”),1 criminal use of a communication facility,2 possession of
drug paraphernalia,3 and possession of a controlled substance by a person
not registered.4 We affirm.
____________________________________________
1
35 Pa.C.S. § 780-113(a)(30).
2
18 Pa.C.S. § 7512(a).
3
35 Pa.C.S. § 780-113(a)(32).
4
35 Pa.C.S. § 780-113(a)(16).
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At the guilty plea hearing, the assistant district attorney set forth the
following facts:
On September 9th of 2014[, Officer Gansky and Officer Hill
from the Bensalem Township Police Department] spoke
with the confidential informant in reference to a black male
named Anthony [who] sells heroin and crack cocaine. The
confidential informant then placed a phone call to Anthony
at 609-851-7401 and ordered up a “Trenton rack” of
heroin and crack cocaine for $500. The confidential
informant was then issued $500 of pre[-]recorded buy
money.
At approximately 6 p.m. Anthony advised the confidential
informant that he was on-scene at the Parx Casino located
at 2999 Street Road, Bensalem, Bucks County,
Pennsylvania. At that time [Officer Gansky and Officer
Hill] observed the confidential informant meet in the
parking lot with a black male. The black male was later
identified as [Appellant].
[Appellant] and confidential informant were observed
walking toward a green Ford Explorer. The confidential
informant entered in the front passenger seat and
[Appellant] entered into the . . . driver’s seat . . . . While
inside the vehicle, Officer Gansky could observe the
confidential informant conducting a hand-to-hand
transaction with [Appellant].
Approximately two minutes later, the confidential
informant exited from the vehicle. The [confidential
informant] then met back with Officer Gansky and turned
over five bundles, which equated to 44 baggies of heroin
and two pieces of crack cocaine.
After retrieving the heroin and crack cocaine, [the] officers
followed and stopped the Ford Explorer and arrested
[Appellant]. Within the vehicle the officers found a
marijuana joint, as well as a soda can with a false bottom.
When they opened the soda can, it contained the
prerecorded buy money that had been issued to the
confidential informant, as well as additional baggies with a
white powdery substance believed to be heroin.
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Once taken back to the station, [Appellant] admitted to
selling both the heroin and crack cocaine to the
confidential informant earlier that day for $500.
Those items that were recovered from the confidential
informant were submitted to the Bucks County Crime
Laboratory and tested positive for both heroin as well as
crack cocaine. In terms of grams, the heroin was .93
grams and the crack cocaine was .51 grams.
N.T. 2/19/15, 15-18. Appellant agreed that the facts were substantially
correct and admitted he sold drugs to the confidential informant. Id. at 18-
21.
On February 19, 2015, Appellant pled guilty to the aforementioned
charges. That same day the trial court imposed the following consecutive
sentences: (1) on the first PWID count, the trial court sentenced Appellant
to 30 to 96 months’ incarceration; (2) on the second PWID count, the trial
court sentenced Appellant to 18 to 60 months’ incarceration; (3) on the
criminal use of a communication facility count, the trial court sentenced
Appellant to 12 to 60 months’ incarceration. The trial court imposed no
further penalty for the possession of drug paraphernalia and possession of a
controlled substance convictions.
On February 24, 2015, Appellant filed a pro se motion for modification
of sentence. The clerk of court sent Appellant a letter informing him that the
Bucks County Public Defender’s Office represented him. On March 2, 2015,
new counsel filed an entry of appearance and a motion for reconsideration of
sentence.
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Following an April 22, 2015 hearing, the trial court granted the motion
for reconsideration. The trial court re-sentenced Appellant to 12 to 30
months’ incarceration on the criminal use of a communication facility
conviction, decreasing the maximum sentence. The sentences imposed on
the PWID convictions did not change.
Appellant filed a timely notice of appeal. Both Appellant and the trial
court complied with Pennsylvania Rule of Appellate Procedure 1925.
Appellant raises the following issue for our review:
Did the [trial] court improperly double count [Appellant’s]
convictions for purposes of sentencing him under the
sentencing guidelines when, sentencing him in the
aggravated range, it placed undue reliance on his prior
convictions?
Appellant’s Brief at 7. Appellant’s issue 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) (citing Commonwealth v. Sierra, 752 A.2d 910,
912 (Pa.Super.2000)). Before this Court can address a discretionary
challenge, 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; and (4) whether the concise
statement raises a substantial question that the sentence
is appropriate under the sentencing code.
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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.
Appellant raised his discretionary aspect of sentence issue in a timely
post-sentence motion, filed a timely notice of appeal, and included a
statement of reasons relied upon for allowance of appeal pursuant to Rule
2119(f) in his brief. We must, therefore, determine whether his issue
presents a substantial question and, if so, review the merits.
“The determination of whether a particular issue raises a substantial
question is to be evaluated on a case-by-case basis.” Commonwealth v.
Dunphy, 20 A.3d 1215, 1220 (Pa.Super.2011) (quoting Commonwealth v.
Fiascki, 886 A.2d 261, 263 (Pa.Super.2005)). 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) (quoting Commonwealth v. Naranjo, 53 A.3d 66, 72
(Pa.Super.2012)).
Appellant maintains the trial court improperly considered his prior
conviction when sentencing him in the aggravated range of the Sentencing
Guidelines because his prior record score was considered to determine his
guideline range. Appellant’s Brief at 12-13. This issue raises a substantial
question. See Commonwealth v. Goggins, 748 A.2d 721, 727-28
(Pa.Super.2000) (appellant raised substantial question when he alleged court
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“imposed sentence outside the guidelines without stating legitimate reasons
for doing so, instead improperly double-counting [the appellant’s] criminal
history and prior record”). We will, therefore, address the merits of
Appellant’s claim.
“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) (citing
Commonwealth v. Johnson, 967 A.2d 1001 (Pa.Super.2009)). “An abuse
of discretion requires the trial court to have acted with manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
support so as to be clearly erroneous.” Id. (citing Commonwealth v.
Walls, 926 A.2d 957 (Pa.2007)).
The trial court did not abuse its discretion when sentencing Appellant.
A trial court is permitted to consider a defendant’s criminal record in
fashioning a sentence, as long as the criminal history is not the sole factor.
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa.Super.2006) (“Trial
courts are permitted to use prior conviction history and other factors already
included in the guidelines if they are used to supplement other extraneous
sentencing information.”).
Although the trial court considered Appellant’s prior criminal history, it
was one of many factors the trial court considered. N.T., 2/19/2015, at 27-
47. The trial court noted that Appellant made a living out of selling drugs.
Id. at 23, 42. The court also considered that Appellant was Recidivism Risk
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Reduction Incentive (“RRRI”) eligible, took responsibility for his actions, and
that Appellant hoped to take care of his mother, who was ill. Id. at 23-47.
The trial court considered the arguments from defense counsel and from the
Commonwealth and considered Appellant’s testimony and allocution at
sentencing. Id. At the re-sentencing, the trial court also noted that the
sentence was to act as a deterrent and considered Appellant’s plan to
abstain from alcohol and drug use and his plan to focus on his mother’s
health, as well as Appellant’s acknowledgement that he had planned to
gamble with the money from the drug transaction. N.T., 4/22/15, at 18-19,
27. The trial court provided reasons for the sentence imposed and did not
abuse its discretion when it sentenced Appellant.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/27/2016
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