Com. v. Bailey, III, F. ( 2015 )

J-S38042-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
FRANK BAILEY, III, :
:
Appellant : No. 2118 MDA 2014
Appeal from the Judgment of Sentence entered on October 27, 2014
in the Court of Common Pleas of Lancaster County,
Criminal Division, No. CP-36-CR-0003342-2012
BEFORE: WECHT, STABILE and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JULY 08, 2015
Frank Bailey, III, (“Bailey”) appeals from the judgment of sentence
imposed following his conviction of delivery of cocaine. See 35 Pa.C.S.A.
§ 780-113(a)(30). We affirm.
Bailey was arrested and charged with the above-mentioned charge,
after he delivered cocaine to a confidential informant. Following a trial, the
jury found Bailey guilty. On October 11, 2013, the trial court imposed a
two-to-four year mandatory minimum prison term based on Bailey’s delivery
of cocaine in a school zone.
In a prior appeal, this Court concluded that the trial court improperly
applied the two-year mandatory minimum sentence without a finding by the
jury that the offense occurred in a school zone, as required by Alleyne v.
United States, 133 S.Ct. 1251 (2013), and remanded the case for
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resentencing. See Commonwealth v. Bailey, 106 A.3d 177 (Pa. Super.
2014) (unpublished memorandum).
On October 27, 2014, the trial court resentenced Bailey to two to four
years in prison, with a RRRI minimum sentence of 18 months. Bailey filed a
timely Post-Sentence Motion on November 5, 2014. Thereafter, the trial
court issued an Order granting Bailey’s Motion to amend the sentencing
sheet to reflect his RRRI eligibility. However, the trial court denied Bailey’s
request to reduce his sentence to one to two years.
Bailey filed a timely Notice of Appeal. He then filed a court-ordered
Concise Statement of Errors complained of on appeal pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b). The trial court filed an
Opinion on January 29, 2015.
On appeal, Bailey raises the following question for our review: “Did
the trial court abuse its discretion by imposing a sentence at the top of the
aggravated range of the [S]entencing [G]uidelines without a legitimate
basis, relying upon improper ‘aggravating’ factors, and failing to consider
mitigating factors?” Brief for Appellant at 4.
Bailey challenges the discretionary aspects of his sentence.
An appellant challenging the discretionary aspects of the
sentence must invoke this [C]ourt’s jurisdiction by satisfying a
four-part test:
[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,
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see Pa.R.Crim.P. [720]; (3) whether the 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.A. § 9781(b).
***
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. 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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)
(quotation marks and some citations omitted).
Here, Bailey filed a timely Notice of Appeal, raised his claims in a
timely Post-Sentence Motion to reconsider the sentence, and included a Rule
2119(f) Statement in his brief. Bailey’s claim that the trial court imposed his
sentence at the top of the aggravated range without having sufficient
reasons for doing so raises a substantial question on appeal. See Brief for
Appellant at 13; see also Commonwealth v. Whitmore, 860 A.2d 1032,
1036 (Pa. Super. 2004) (stating that a claim that a court failed to state
adequate reasons for the sentence raises a substantial question). Further,
Bailey’s claim that the trial court, failed to consider mitigating factors in
imposing an aggravated sentence also raises a substantial question. See
Brief for Appellant at 15; see also Commonwealth v. Bowen, 55 A.3d
1254, 1263 (Pa. Super. 2012) (stating that a substantial question is raised
where it is alleged that the court imposed an aggravated-range sentence
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without considering mitigating circumstances). Finally, Bailey’s claim that
the trial court improperly used Bailey’s prior drug conviction as a reason for
imposing an aggravated-range sentence raises a substantial question. See
Brief for Appellant at 13; see also Commonwealth v. McNabb, 819 A.2d
54, 57 (Pa. Super. 2003) (stating that “factors already used in Sentencing
Guideline computations . . . may not be used to justify an aggravated
sentence.”). Thus, we will review Bailey’s sentencing claims.
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. Mastromarino, 2 A.3d 581, 589 (Pa. Super. 2010).
Bailey argues that the trial court abused its discretion by imposing a
sentence in the aggravated-range without stating sufficient or appropriate
reasons for doing so. Brief for Appellant at 19. Bailey claims that the
Honorable Jeffery D. Wright did not have sufficient basis for sentencing in
the aggravated-range because 1) Judge Wright improperly used Bailey’s
prior drug felony as an aggravating factor, when it was already incorporated
into the sentencing guidelines; 2) Judge Wright used Bailey’s “lavish
lifestyle” as an aggravating factor, when there was no evidence to support
that factor; and 3) Judge Wright gave no consideration to mitigating factors,
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such as Bailey’s completion of the “Thinking for a Change” program. Id. at
19-23.
Our review of the record discloses that Judge Wright considered a
variety of factors in imposing an aggravated-range sentence. Judge Wright
considered the Pre-Sentence Investigation Report (“PSI”), which included a
statement by Bailey where he admitted that he was not a drug user. N.T.
(Resentencing), 10/27/14, at 9; see also Moury, 992 A.2d at 171 (stating
that when the sentencing court has a PSI, it is assumed that the sentencing
court “was aware of all relevant information regarding defendant’s character
and weighed those considerations along with mitigating statutory factors”).
Bailey’s admission supported a finding that the crime was deliberate and not
done simply to feed his addiction. N.T. (Resentencing), 10/27/14 at 9.
The record further indicates that Bailey was 29 years old, that Bailey
had his GED, could read, write, and understand English, and was intelligent
enough to understand the significance of his actions. Id. Judge Wright
additionally stated that Bailey has a work history, which demonstrated that
Bailey knew how to follow directions and be a productive member of society.
Id.Judge Wright also considered Bailey’s criminal history, consisting of
criminal convictions at six prior dockets. Id.; see also Commonwealth v.
Petras, 534 A.2d 483, 488 (Pa. Super. 1987) (stating that prior connections
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with law enforcement are among the circumstances to be scrutinized at
sentencing).
Finally, Judge Wright pointed out that Bailey did not attend his first
sentencing hearing, requiring the issuance of a bench warrant. N.T.
(Resentencing), 10/27/14, at 10. Moreover, contrary to Bailey’s assertion,
Judge Wright considered the fact that Bailey completed the “Thinking for a
Change” program. Id.While Judge Wright stated at sentencing that Bailey led a lavish
lifestyle, which Bailey contests as not supported by the record, the multitude
of factors stated above supported the aggravated-range sentence. Thus, the
trial court did not abuse its discretion.1
1
Bailey also argues that the trial court should have considered a lower
sentencing guideline because the offense gravity score, for delivery of less
than 2 grams of cocaine was reduced from six to five after he committed the
crime, but before he was sentenced. Brief for Appellant at 25. However,
Bailey did not raise this issue in his Concise Statement. Thus, Bailey’s claim
is waived on appeal. See Commonwealth v. Dowling, 778 A.2d 683, 686
(Pa. Super. 2001); see also Pa.R.A.P. 1925(b)(vii). Further, Bailey did not
raise this issue in his Post-Sentence motion; therefore, he has waived the
right to have this Court address the merits of the claim. See Moury, 992
A.2d at 170 (stating that the defendant must preserve the issue for appeal
in a post-sentence motion); see also Commonwealth v. Lamonda, 52
A.3d 365, 371 (Pa. Super. 2012) (stating that a claim regarding an offense
gravity score challenges the discretionary aspects of sentence).
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2015
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