Com. v. Hopewell, R. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
REGINALD HOPEWELL,
Appellant No. 1476 EDA 2015
Appeal from the Judgment of Sentence Entered February 19, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006515-2014
BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 24, 2016
Appellant, Reginald Hopewell, appeals from the judgment of sentence
of 3½ to 7 years’ incarceration, imposed after he was found guilty, following
a non-jury trial, of possession with intent to deliver a controlled substance
(PWID), conspiracy to commit PWID, and possession of a controlled
substance. Appellant solely challenges the discretionary aspects of his
sentence. After careful review, we vacate and remand for resentencing.
Summarizing the underlying facts of Appellant’s case is unnecessary to
our disposition of his issue on appeal. We need only note that on December
9, 2014, Appellant was found guilty of the above-stated offenses. A pre-
sentence report was prepared, and a sentencing hearing was conducted on
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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February 19, 2015. At the outset of that proceeding, the court asked if
defense counsel or the Commonwealth wished to present argument
regarding the offense gravity score, prior record score, or the applicable
sentencing guidelines. N.T. Sentencing, 2/19/15, at 3. The Commonwealth
replied that, based on its calculations, and the information provided in the
pre-sentence report, Appellant’s prior record score was 7 and he was
classified as a Repeat Felony 1 and Felony 2 Offender (RFEL), making the
standard guideline range 35 to 45 months’ imprisonment. See id. at 3-4;
see also 204 Pa. Code § 303.4(a)(2) (defining the requirements for
classification as an RFEL offender). Defense counsel then stated “[n]o
argument[,]” and requested that the court impose a standard range
sentence. Id. at 4. At the close of the hearing, the court sentenced
Appellant to concurrent terms of 3½ to 7 years’ incarceration for both his
PWID and conspiracy convictions. Appellant’s conviction of possession of a
controlled substance merged for sentencing purposes.
Appellant retained new counsel on the same day his sentence was
imposed, and that attorney filed a timely post-sentence motion, arguing,
inter alia, that Appellant’s prior record score was miscalculated and he was
not an RFEL offender. The court ultimately denied that post-sentence
motion, and Appellant filed a timely notice of appeal. Appellant also timely
complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. Herein, Appellant presents
one issue for our review:
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Did the lower court incorrectly assume that Appellant’s prior
convictions were for offenses associated with heightened prior
record points when no evidence of record supported that
assumption?
Appellant’s Brief at 4.
Appellant correctly characterizes this claim as a challenge to the
discretionary aspects of his sentence. See Commonwealth v. O’Bidos,
849 A.2d 243, 253 (Pa. Super. 2004); Commonwealth v. Archer, 722
A.2d 203, 210-211 (Pa. Super. 1998) (en banc).
An appellant must satisfy a four-part test to invoke this Court's
jurisdiction when challenging the discretionary aspects of a
sentence. The appellant must satisfy all of the following:
(1) the appellant preserved the issue either by raising it at
the time of sentencing or in a post[-]sentence motion; (2)
the appellant filed a timely notice of appeal; (3) the
appellant set forth a concise statement of reasons relied
upon for the allowance of his appeal pursuant to Pa.R.A.P.
2119(f); and (4) the appellant raises a substantial
question for our review.
Commonwealth v. Tejada, 107 A.3d 788, 797-98 (Pa. Super. 2015)
(citation omitted), appeal denied, 119 A.3d 351 (Pa. 2015).
Here, the trial court concludes that Appellant waived his sentencing
claim by not objecting, at the sentencing hearing, to the calculation of his
prior record score or his classification as an RFEL offender. See Trial Court
Opinion, 10/7/15, at 10. We disagree. Appellant filed a timely post-
sentence motion raising this issue, he filed a timely notice of appeal, he
includes a Rule 2119(f) statement in his brief to this Court, and he presents
a substantial question for our review. See Commonwealth v. Johnson,
758 A.2d 1214, 1216 (Pa. Super. 2000) (finding a substantial question was
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presented where the defendant claimed the sentencing court erroneously
calculated his prior record score and, thus, misapplied the sentencing
guidelines). Accordingly, Appellant has satisfied each prong of the test for
invoking this Court’s jurisdiction to address his claim, and we do so herein.
Again, Appellant argues that his prior record score was erroneously
calculated as a 7, when it is actually a 4, and that he was improperly
classified as an RFEL offender. The Commonwealth concedes that “[t]here
is insufficient evidence of record to show that [Appellant] was a repeat
felony offender….” Commonwealth’s Brief at 4. Thus, “the Commonwealth
does not oppose a remand for resentencing.” Id. Because we have no
analysis by the trial court, which found Appellant’s claim waived, and
because the Commonwealth concedes that the record supports Appellant’s
argument, we conclude that the appropriate action is to vacate Appellant’s
judgment of sentence and remand for the court to recalculate his prior
record score and impose a new sentence under the correct guideline range.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/24/2016
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