Com. v. Graham, C. ( 2017 )

J-S11039-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CLIFTON LEE GRAHAM :
:
Appellant : No. 1265 WDA 2016
Appeal from the Judgment of Sentence July 25, 2016
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0003363-2015
BEFORE: OLSON, RANSOM, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 27, 2017
Appellant Clifton Lee Graham appeals the judgment of sentence
entered by the Court of Common Pleas of Erie County. Appellant challenges
the lower court’s discretion in imposing his sentence. We affirm.
In November 2014, Appellant was charged with numerous offenses
related to his delivery of heroin and use of a cell phone to further his
delivery. On May 2, 2016, Appellant pled guilty to Delivery of a Controlled
Substance1 and Criminal Use of a Communication Facility2 and the
Commonwealth nolle prossed the remaining charges.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30).
2
18 Pa.C.S. § 7512(a).
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Appellant’s sentencing hearing was scheduled for July 25, 2016 at
8:45 a.m. Defense counsel informed the sentencing court that Appellant
was aware of the time and date of the hearing. The sentencing court waited
for Appellant to arrive until 9:15 a.m. before proceeding to sentence
Appellant in absentia to two consecutive sentences of fifteen to thirty
months incarceration. Both sentences fell within the standard range of the
sentencing guidelines. When Appellant arrived at the courthouse at 9:45
a.m., the Sheriff’s Office took Appellant into custody. That same day,
Appellant filed a post-sentence motion, which the trial court denied.
Appellant filed a timely appeal and complied with the lower court’s order to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b).
Appellant’s sole claim on an appeal is his contention that the
sentencing court abused its discretion in imposing an unduly harsh sentence
by improperly considering Appellant’s absence from the hearing. It is well-
established that “[a] challenge to the discretionary aspects of sentencing
does not entitle an appellant to review as of right.” Commonwealth v.
Bynum-Hamilton, 135 A.3d 179, 184 (Pa.Super. 2016). In order to invoke
this Court’s jurisdiction to address such a challenge, the appellant must
satisfy the following four-part test: the appellant must (1) file a timely notice
of appeal pursuant to Pa.R.A.P. 902, 903; (2) preserve the issues at
sentencing or in a timely post-sentence motion pursuant to Pa.R.Crim.P.
720; (3) ensure that the appellant’s brief does not have a fatal defect as set
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forth in Pa.R.A.P. 2119(f); and (4) set forth a substantial question that the
sentence appealed from is not appropriate under the Sentencing Code under
42 Pa.C.S. § 9781(b). Id. Appellant has filed a timely notice of appeal,
preserved his sentencing claim before the trial court, and submitted a Rule
2119(f) statement in his appellate brief.
We may now determine whether Appellant has raised a substantial
question for our review. “The determination of what constitutes a
substantial question must be evaluated on a case-by-case basis.”
Commonwealth v. Caldwell, 117 A.3d 763, 768, (Pa.Super. 2015). This
Court has provided as follows:
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.
When imposing a sentence, the sentencing court must consider
the factors set out in 42 Pa.C.S. § 9721(b), that is, the
protection of the public, gravity of offense in relation to impact
on victim and community, and rehabilitative needs of the
defendant. And, of course, the court must consider the
sentencing guidelines.
Id. (internal citations omitted). This Court has held that a claim that a
sentencing court abused its discretion by relying on “impermissible factors”
raises a substantial question. Commonwealth v. Shugars, 895 A.2d 1270,
1274 (Pa.Super. 2006).
In reviewing this claim, we emphasize the broad discretion given to
sentencing courts. “[W]hen reviewing sentencing matters, we must accord
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the sentencing court great weight as it is in the best position to view the
defendant's character, displays of remorse, defiance or indifference, and the
overall effect and nature of the crime.” Commonwealth v. Sierra, 752
A.2d 910, 915 (Pa.Super. 2000). “A sentencing court will not have abused
its discretion unless the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.”
Commonwealth v. Allen, 24 A.3d 1058, 1065 (Pa.Super. 2011).
The sentencing judge fully discussed its reasons for imposing its
sentence on the record, indicating that he had thoroughly reviewed
Appellant’s pre-sentence report and psychological evaluation and took into
consideration Appellant’s attempt to seek drug treatment. This Court has
held that “where the sentencing court imposed a standard-range sentence
with the benefit of a pre-sentence report, we will not consider the sentence
excessive. In those circumstances, we can assume the sentencing court
“was aware of relevant information regarding the defendant's character and
weighed those considerations along with mitigating statutory factors.”
Commonwealth v. Corley, 31 A.3d 293, 298 (Pa.Super. 2011) (citing
Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12, 18 (1988)).
With respect to Appellant’s claim that the sentencing court improperly
considered Appellant’s failure to attend the sentencing hearing, the court
made a passing reference to Appellant’s absence in response to defense
counsel’s assertion that Appellant was committed to seeking drug treatment.
The sentencing court noted that, along with Appellant’s extensive prior
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record, Appellant’s failure to attend the sentencing hearing “undermined”
Appellant’s “amenability to treatment and/or supervision.” N.T. Sentencing,
7/25/16, at 7. The sentencing court also indicated that he did not agree
with defense counsel’s request for a probationary sentence as Appellant’s
extensive criminal history did not demonstrate that he should have an
opportunity to stay in the community, where he was involved in selling
heroin to the public. We find no abuse of discretion as the lower court
imposed a sentence consistent with the protection of the public, gravity of
the offense, and Appellant’s rehabilitative needs. See Caldwell, supra.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/2017
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