Com. v. Watley, A. ( 2018 )

J-S83045-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ANDRE RAYMELLE WATLEY :
:
Appellant : No. 2818 EDA 2017
Appeal from the Judgment of Sentence August 4, 2017
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0001701-2009
BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J.
MEMORANDUM BY GANTMAN, P.J.: FILED FEBRUARY 20, 2018
Appellant, Andre Raymelle Watley, appeals from the new judgment of
sentence entered in the Northampton County Court of Common Pleas,
following his jury trial convictions of two counts of firearms not to be carried
without a license, and one count each of conspiracy, false identification to
law enforcement authorities, possession of a controlled substance with intent
to deliver (“PWID”), possession of a controlled substance, possession of a
small amount of marijuana, and two summary motor vehicle offenses.1 We
affirm.
The relevant facts and procedural history of this case are as follows.
____________________________________________
1
18 Pa.C.S.A. §§ 6106(a)(1), 903(a)(1), 4914, 35 P.S. §§ 780-113(a)(30),
(a)(16), (a)(31), 75 Pa.C.S.A. §§ 3362(a)(3), and 1543(a), respectively.
J-S83045-17
On February 13, 2009, police stopped Appellant’s vehicle for speeding.
During the stop, police observed a firearm in plain view and removed the
occupants from the vehicle. Appellant fled on foot; however, police
identified Appellant as the driver of the vehicle, based on a statement by the
passenger and receipts found inside the vehicle. Police subsequently
arrested Appellant, and the Commonwealth charged him with various
firearm, drug, and motor vehicle offenses. On July 15, 2010, the jury
convicted Appellant of two counts of firearms not to be carried without a
license, and one count each of conspiracy, false identification to law
enforcement authorities, PWID, possession of a controlled substance,
possession of a small amount of marijuana, and two summary motor vehicle
offenses. The court sentenced Appellant on September 17, 2010, to an
aggregate term of one hundred and forty-eight (148) to three hundred (300)
months’ imprisonment, which included two mandatory minimum sentences
pursuant to 42 Pa.C.S.A. § 9712.1. Appellant did not file a direct appeal.
On May 12, 2011, Appellant timely filed a pro se PCRA petition, which
resulted in the reinstatement of his direct appeal rights nunc pro tunc on
May 27, 2011. That same day, Appellant filed a notice of appeal nunc pro
tunc. This Court affirmed the judgment of sentence on November 25, 2013,
and our Supreme Court denied allowance of appeal on July 8, 2014. See
Commonwealth v. Watley, 81 A.3d 108 (Pa.Super. 2013) (en banc),
appeal denied, 626 Pa. 684, 95 A.3d 277 (2014). Appellant timely filed a
-2-
J-S83045-17
pro se PCRA petition on June 2, 2015. The court appointed counsel, who
filed an amended PCRA petition on July 10, 2015. The parties proceeded to
PCRA hearings on October 9, 2015 and October 30, 2015. On January 27,
2016, the PCRA court determined Appellant’s mandatory minimum
sentences were unconstitutional pursuant to Alleyne v. United States, 570
U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), and vacated Appellant’s
judgment of sentence. The PCRA court denied PCRA relief in all other
respects. Appellant timely filed a notice of appeal on February 19, 2016.
This Court affirmed on December 29, 2016, and our Supreme Court denied
allowance of appeal on June 12, 2017. See Commonwealth v. Watley,
153 A.3d 1034 (Pa.Super. 2016), appeal denied, ___ Pa. ___, 169 A.3d 574
(2017).
On August 4, 2017, the parties appeared for Appellant’s resentencing
hearing. After an explanation of its reasons for the sentence, the court
imposed a term of forty-two (42) to eighty-four (84) months’ imprisonment
for the first firearms not to be carried without a license conviction, a
consecutive term of forty-two (42) to eighty-four (84) months’ imprisonment
for the second firearms not to be carried without a license conviction, a
consecutive term of seventeen (17) to one hundred and twenty (120)
months’ imprisonment for the PWID conviction, a consecutive term of
seventeen (17) to one hundred and twenty (120) months’ imprisonment for
the conspiracy conviction, a consecutive term of six (6) to twelve (12)
-3-
J-S83045-17
months’ imprisonment for the false identification to law enforcement
authorities conviction, and a consecutive term of fifteen (15) to thirty (30)
days’ imprisonment for the possession of a small amount of marijuana
conviction; thus, Appellant received an aggregate term of one hundred
twenty-four and one-half (124½) to four hundred and twenty-one (421)
months’ imprisonment. Appellant timely filed a post-sentence motion for
reconsideration of sentence on August 7, 2017, which the court denied on
August 18, 2017. Appellant timely filed a notice of appeal on August 29,
2017. On August 30, 2017, the court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),
and Appellant timely complied on August 31, 2017.
Appellant raises the following issue for our review:
THE SENTENCING COURT ABUSED ITS DISCRETION WHEN
IT IMPOSED A MORE SEVERE AGGREGATE MAXIMUM
SENTENCE ON APPELLANT AT RE-SENTENCING THAN
JUDGE SMITH DID AT APPELLANT’S ORIGINAL
SENTENCING.
(Appellant’s Brief at 4).
Appellant argues the court improperly imposed an increased aggregate
maximum sentence of four hundred and twenty-one (421) months’
imprisonment. Appellant asserts the record does not contain additional
objective information to justify the imposition of an aggregate maximum
sentence, which is ten years more than the original aggregate maximum
sentence. Appellant avers his increased aggregate maximum sentence is
-4-
J-S83045-17
detrimental to him. Appellant concludes his increased aggregate maximum
sentence is the result of judicial vindictiveness, and this Court should vacate
and remand for resentencing. As presented, Appellant challenges the
discretionary aspects of his sentence. See Commonwealth v. Robinson,
931 A.2d 15 (Pa.Super. 2007) (en banc) (explaining claim of judicial
vindictiveness constitutes challenge to discretionary aspects of sentencing).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d
910, 912 (Pa.Super. 2000). Prior to reaching the merits of a discretionary
aspect of sentencing issue:
We 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.A. § 9781(b).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013), appeal
denied, 621 Pa. 682, 76 A.3d 538 (2013) (quoting Commonwealth v.
Evans, 901 A.2d 528, 533 (Pa.Super 2006), appeal denied, 589 Pa. 727,
909 A.2d 303 (2006)). Generally, objections to the discretionary aspects of
a sentence are waived if they are not raised at the sentencing hearing or
raised in a motion to modify the sentence imposed at that hearing.
Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003), appeal
-5-
J-S83045-17
denied, 574 Pa. 759, 831 A.2d 599 (2003).
When appealing the discretionary aspects of a sentence, an appellant
must also invoke the appellate court’s jurisdiction by including in his brief a
separate concise statement demonstrating that there is a substantial
question as to the appropriateness of the sentence under the Sentencing
Code. Commonwealth v. Mouzon, 571 Pa. 419, 425-26, 812 A.2d 617,
621-22 (2002); Pa.R.A.P. 2119(f). “The requirement that an appellant
separately set forth the reasons relied upon for allowance of appeal ‘furthers
the purpose evident in the Sentencing Code as a whole of limiting any
challenges to the trial court’s evaluation of the multitude of factors impinging
on the sentencing decision to exceptional cases.’” Commonwealth v.
Phillips, 946 A.2d 103, 112 (Pa.Super. 2008), appeal denied, 600 Pa. 745,
964 A.2d 895 (2009), cert. denied, 556 U.S. 1264, 129 S. Ct. 2450, 174
L. Ed. 2d 240 (2009) (quoting Commonwealth v. Williams, 562 A.2d 1385,
1387 (Pa.Super. 1989) (en banc) (emphasis in original)). “The
determination of what constitutes a substantial question must be evaluated
on a case-by-case basis.” Commonwealth v. Anderson, 830 A.2d 1013,
1018 (Pa.Super. 2003). 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.” Sierra, supra at 913 (quoting Commonwealth v.
-6-
J-S83045-17
Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567
Pa. 755, 790 A.2d 1013 (2001)). Significantly, this Court has held that a
claim of judicial vindictiveness in resentencing raises a substantial question
for our review. Commonwealth v. Tapp, 997 A.2d 1201, 1203 (Pa.Super.
2010), appeal denied, 608 Pa. 654, 12 A.3d 752 (2010).
Here, Appellant properly preserved his discretionary aspects of
sentencing claim in his post-sentence motion, Rule 1925(b) statement, and
Rule 2119(f) statement. Additionally, his claim of judicial vindictiveness
appears to raise a substantial question for our review. See id.
Our standard of review of a challenge to the discretionary aspects of
sentencing 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. 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. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal
denied, 586 Pa. 723, 890 A.2d 1057 (2005) (quoting Commonwealth v.
Rodda, 723 A.2d 212, 214 (Pa.Super. 1999) (en banc)).
Pursuant to Section 9721(b), “the court shall follow the general
principle that the sentence imposed should call for confinement that is
consistent with the protection of the public, the gravity of the offense as it
-7-
J-S83045-17
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.A. § 9721(b). “[T]he
court shall make as part of the record, and disclose in open court at the time
of sentencing, a statement of the reason or reasons for the sentence
imposed.” Id. Nevertheless, “[a] sentencing court need not undertake a
lengthy discourse for its reasons for imposing a sentence or specifically
reference the statute in question….” Commonwealth v. Crump, 995 A.2d
1280, 1283 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475
(2010). Rather, the record as a whole must reflect the sentencing court’s
consideration of the facts of the case and the defendant’s character. Id. “In
particular, the court should refer to the defendant’s prior criminal record, his
age, personal characteristics and his potential for rehabilitation.”
Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.Super. 2002), appeal
denied, 582 Pa. 671, 868 A.2d 1198 (2005), cert denied, 545 U.S. 1148,
125 S. Ct. 2984, 162 L. Ed. 2d 902 (2005).
Generally, a presumption of vindictiveness arises if the court imposes
a harsher sentence upon resentencing. Robinson, supra at 22. “Absent
evidence [that] a sentencing increase is justified due to objective
information concerning a defendant’s case, the presumption of
vindictiveness cannot be rebutted.” Commonwealth v. Barnes, 167 A.3d
110, 124 (Pa.Super. 2017) (en banc). Significantly, no presumption of
vindictiveness arises when the original sentence and the new sentence are
-8-
J-S83045-17
imposed by two different judges. Tapp, supra at 1205. Thus, without a
presumption of vindictiveness, the defendant must affirmatively prove actual
vindictiveness. Id. When a defendant fails to prove vindictiveness by
affirmative evidence, his right to due process has not been infringed, and he
is not entitled to resentencing on that ground. Id.
Instantly, a different judge presided over the August 4, 2017
resentencing. As such, no presumption of vindictiveness arises, based on
Appellant’s increased aggregate maximum sentence. See id. Additionally,
Appellant has failed to present any evidence of actual vindictiveness; and
nothing in the record suggests the new sentence was the result of
vindictiveness. See id. Further, the court thoroughly explained its reasons
for the August 4, 2017 sentence as follows:
When Judge Smith imposed the original sentence on
September 17, 2010, he stated: “Because of your prior
record, I am concerned about your rehabilitative potential.
It would appear that some lengthy period of incarceration
would be appropriate to try to address your rehabilitative
concerns and also to protect the public. These are serious
offenses. They involve firearms, they involve possession
of [e]cstasy with intent to deliver it. …[T]his is not the
first time that you’ve had issues with the law. Prior
attempts at rehabilitation have failed.” Having reviewed
the record as a whole and finding that we concurred with
these conclusions by Judge Smith, and concluding that the
aggregate minimum sentence imposed by Judge Smith
was appropriate, we sought to fashion a sentence at
resentencing that would be of a similar minimum duration.
This was not possible without imposing a sentence in the
aggravated range, unless each of the sentences was run
consecutively. Accordingly, we imposed a consecutive
sentence on each of the charges, at the highest end of the
standard range on each, for an aggregate minimum
-9-
J-S83045-17
sentence in the standard range that would best achieve
the same goal that Judge Smith’s sentence was imposed to
achieve. We believe that such concerns were
appropriately considered by us in fashioning the current
sentence. While we recognize that [Appellant’s] aggregate
maximum has consequently been increased by 121
months, his minimum has been decreased by 23 months,
15 days. We do not believe that having an increased
aggregate maximum will be detrimental to [Appellant],
insofar as his appropriate behavior and participation in
programming in state prison will still permit him to be
paroled sooner than he would have been under his original
sentence—he will simply have a longer period of parole,
which can only be of benefit to the community, in addition
to serving the rehabilitative needs of [Appellant].
For all of these reasons, it is respectfully suggested that
the sentence imposed on August 4, 2017, was appropriate.
(See Trial Court Opinion, filed October 2, 2017, at 5-6) (internal citations
omitted). Under these circumstances, the court properly explained its
reasons for Appellant’s increased aggregate maximum sentence. Thus,
Appellant’s challenge to the discretionary aspects of his sentence fails on the
ground asserted. See Hyland, supra. Accordingly, we affirm the judgment
of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/20/2018
- 10 -