Com. v. Shull, G. ( 2018 )

J-A26031-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
v.
GABRIEL PIO JESUS SHULL
Appellant No. 425 MDA 2017
Appeal from the Judgment of Sentence January 25, 2017
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0001772-2014
BEFORE: BOWES, J., OLSON, J., and RANSOM, J.
MEMORANDUM BY RANSOM, J.: FILED JANUARY 11, 2018
Appellant, Gabriel Pio Jesus Shull, appeals from the judgment of
sentence of forty-five to ninety months of incarceration, imposed January 25,
2017, following a bench trial resulting in his conviction for robbery, unlawful
restraint, simple assault, possession of an instrument of crime, and possession
of drug paraphernalia.1 We vacate Appellant’s sentence and remand for
resentencing.
A prior panel of this Court discussed the facts and procedural history of
this matter at length in a precedential opinion, and we need not repeat them
at length here. See Commonwealth v. Shull, 148 A.3d 820, 825–28 (Pa.
Super. 2016), reargument denied (Nov. 23, 2016). Suffice it to say, Appellant
____________________________________________
1 See 18 Pa.C.S. §§ 3701(a)(1)(ii), 2902(a)(1), 2701(a)(1), 907(a), and 35
P.S. § 780–113(a)(32), respectively.
J-A26031-17
was arrested and charged in November 2014, as a result of the violent
gunpoint robbery of the complainant. Id.
Following a bench trial, the court convicted Appellant of all charges and
made a finding of fact that Appellant possessed a deadly weapon during the
commission of his crimes. Id. at 829. The prior panel described the
sentencing as follows:
During the sentencing hearing of August 11, 2015, the court made
a determination that the Deadly Weapon Possession sentencing
enhancement applied under the facts proven at trial, but refused
to apply the more severe Deadly Weapon Used enhancement
sought by the Commonwealth. The court applied the
enhancement matrix as its sentencing starting point and, from
there, deviated downward to issue a mitigated range sentence of
29 to 59 months’ incarceration, to be followed by 5 years'
probation on the count of Robbery, with concurrent sentences
entered on the remaining charges. Furthermore, the court
insisted and ruled, over Commonwealth objection, that
[Appellant] was to serve his sentence in a county correctional
facility.
The Commonwealth filed a timely Motion to Modify Sentence
seeking application of the Deadly Weapon Used sentencing
enhancement and a standard range sentence based upon that
sentencing matrix. The Commonwealth also contested county
placement for [Appellant], insisting that he serve a state sentence
in a state correctional facility.
The court conducted a hearing on the post-sentence motion on
September 2, 2015, and, as detailed more fully, infra, withdrew
its previous sentence in favor of an even more lenient sentence of
incarceration of 11½ to 24 months, less one day, in a county
correctional facility, provided [Appellant] agree to waive his right
to parole and serve the full 24 months, less one day. The court
explained that it was reducing [Appellant]’s sentence in order to
avoid a statutory provision that conditions county placement for a
maximum sentence of between two and five years’ incarceration
on a district attorney's prior consent. In the case sub judice,
-2-
J-A26031-17
District Attorney Parks Miller did not consent to county placement
for a crime she insisted warranted state placement.
Shull, 148 A.3d at 829.
We vacated the sentence and remanded for resentencing, finding that
the trial court had abused its discretion by refusing to apply the “deadly
weapon used” enhancement requested by the Commonwealth where the facts
supported its application. Id. at 829. Instead, the court had imposed a
sentence that departed from the standard range of the guidelines to effectuate
the incarceration of Appellant in a county facility, without considering the
individualized circumstances of the case. Id. at 832-37. On remand, we
instructed the court to use a correct guidelines calculation before exercising
its discretion. Id. at 832.
In January 2017, Appellant appeared before the court for resentencing.
The victim’s father testified about the effect the crime had had on her life,
including dropping out of college for a year, developing an eating disorder and
an alcohol addiction, and undergoing multiple hospitalizations. See Notes of
Testimony (N.T.), 1/25/17, at 4-15. The court had the benefit of a pre-
sentence investigation report. Id. at 15. Appellant made argument regarding
his progress in prison, including achieving a high school diploma, completing
mental health counseling, and assisting illiterate inmates. Id. at 21-23.
Appellant testified on his own behalf. Id. at 27-30.
The court stated that it would sentence Appellant in the standard range
of the guidelines, as our Court had previously found its refusal to apply the
-3-
J-A26031-17
“deadly weapon used” enhancement manifestly unreasonable. Id. at 30. The
court stated that:
As noted by the Superior Court panel, the sentence we imposed
previously was designed to avoid a period of state incarceration.
Because the panel found such a desire was inappropriate in the
circumstances of this case, we will sentence in the standard range
...
Id. at 31. The court sentenced Appellant to an aggregate sentence of forty-
five to ninety months of incarceration. Id. at 31-32. Appellant filed a motion
seeking reconsideration of his sentence, which the court denied following
argument. See N.T., 2/13/17, at 1-10.
Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
statement of errors complained of on appeal. The court did not issue a
responsive opinion.
Appellant raises a single issue for our review:
1. When this Court vacates a sentence because factors used by
the trial court to depart from the guidelines were improper, does
the lower court have the responsibility and the right to consider
all legitimate sentencing factors ab initio rather than limit
resentencing to the now-rejected factors?
Appellant’s Brief at 6 (unnecessary capitalization omitted).
Appellant challenges the discretionary aspects of his sentence, a
challenge which does not entitle him to review as of right. Commonwealth
v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011). Prior to addressing a
discretionary challenge, this Court engages in a four-part analysis: 1) whether
the appeal is timely; 2) whether Appellant preserved his issue; 3) whether
-4-
J-A26031-17
Appellant’s brief contains a concise statement of the reasons relied upon for
allowance of appeal pursuant to Pa.R.A.P. 2119(f); and 4) whether that
statement raises a substantial question that the sentence is inappropriate
under the sentencing code. See Commonwealth v. Austin, 66 A.3d 798,
808 (Pa. Super. 2013); see also Pa.R.A.P. 2119(f).
Appellant timely filed a notice of appeal, preserved his claim in a post-
sentence motion, and included in his brief an appropriate Pa.R.A.P. 2119(f)
statement. We must now determine whether he has raised a substantial
question that the sentence is inappropriate under the sentencing code and, if
so, review the merits. 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 where the Appellant
advances a colorable argument that the sentencing judge’s actions were either
inconsistent with a specific provision of the Sentencing Code or contrary to
the fundamental norms that underlie the sentencing process.
Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000).
Here, Appellant suggests that he has raised a substantial question
because the sentencing court improperly concluded that it did not have the
discretion to consider all relevant sentencing factors. See Appellant’s Brief at
13. Appellant suggests that he has raised a substantial question because the
court did not address any sentencing criteria but instead “deemed itself
restricted to the factors it originally relied on but that this Court rejected.”
See Appellant’s Brief at 13. He avers that he is entitled to a blank slate upon
-5-
J-A26031-17
resentencing where he presented substantial mitigation evidence between the
time of the original sentencing and the resentencing. Id. at 13-14. The
Commonwealth characterizes Appellant’s argument differently. It notes that
a claim the trial court did not accord proper weight to specific sentencing
factors does not, as a matter of law, raise a substantial question. See
Commonwealth’s Brief at 11.
Our Court has previously held that an averment that “the trial court
failed to consider relevant sentencing criteria, including the protection of the
public, the gravity of the underlying offense and the rehabilitative needs of
Appellant, as [42 Pa.C.S. § 9721(b) requires,] presents a substantial question
for our review in typical cases.” See Commonwealth v. Derry, 150 A.3d
987, 992 (Pa. Super. 2016). To the extent that Appellant relies on
Commonwealth v. Losch, we will review his sentence. See
Commonwealth v. Losch, 535 A.2d 115, 119 (Pa. Super. 1987) (finding that
appellant’s arguments, including that the trial court erred at resentencing by
disregarding relevant evidence of good conduct in prison, presented a
substantial question).
As noted supra, in Shull I we found that the court had abused its
discretion by refusing to apply the proper enhancement requested by the
Commonwealth to effectuate Appellant’s incarceration in a county facility,
without considering the individualized circumstances of the case. Shull, 148
A.3d at 829-37. Although we found this application improper, we instructed
-6-
J-A26031-17
the court on remand to apply the correct guidelines calculation prior to
exercising its discretion. Id. 832.
Since Losch, we have noted that:
When a sentence is vacated and the case is remanded to the
sentencing court for resentencing, the sentencing judge should
start afresh. Reimposing a judgment of sentence should not be a
mechanical exercise. Given the important nature of the interests
involved, the judge at the second sentencing hearing should
reassess the penalty to be imposed on the defendant—especially
where defense counsel comes forward with relevant evidence
which was not previously available. Thus, [the defendant’s]
conduct since the prior sentencing hearing is relevant at
resentencing. The sentencing judge must take note of this new
evidence and reevaluate whether the jail term which [the
defendant] received is a just and appropriate punishment.
Commonwealth v. Jones, 640 A.2d 914, 919–20 (Pa. Super. 1994). On
resentencing the court should consider several variables and there is no right
to have one take precedence over all the others. Losch, 535 A.2d at 123.
Here, the court did not mention any other factor beyond this court’s
prior decision. Generally, we presume that, where the sentencing judge has
the benefit of a PSI, “[he] was aware of the relevant information regarding
the defendant's character and weighed those considerations along with
mitigating statutory factors.” Commonwealth v. Boyer, 856 A.2d 149, 154
(Pa. Super. 2004) (citation omitted). However, it appears the court did not
exercise its discretion at all. Rather, it appears the court misapprehended our
prior instructions. The court stated that:
As noted by the Superior Court panel, the sentence we imposed
previously was designed to avoid a period of state incarceration.
Because the panel found such a desire was inappropriate in the
-7-
J-A26031-17
circumstances of this case, we will sentence in the standard range
...
See N.T., 1/25/17, at 31.
In the previous matter, we found that the court had departed from the
guidelines without good cause and without considering the individualized
circumstances of Appellant’s case, leading it to impose a sentence below the
standard range for an inappropriate reason. See Shull, 148 A.3d at 832-37.
However, our prior opinion did not require the court to sentence within the
guidelines on remand, only that the court apply the proper enhancement
before exercising its discretion. Id. Here, the court imposed a guideline
sentence without considering the individualized circumstances of Appellant’s
case and additional information introduced at the re-sentencing, and
accordingly, committed an abuse of discretion. See Losch, 535 A.2d at 123;
Jones, 640 A.2d at 919-20; see N.T., 1/25/17, at 31. Thus, we are
constrained to vacate the sentence and remand for resentencing.
Judgment of sentence vacated. Remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/2018
-8-