Com. v. Wallace, Jr., M. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MICHAEL D. WALLACE, JR.,
Appellant No. 2144 MDA 2014
Appeal from the Judgment of Sentence November 18, 2014
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0000073-2014
BEFORE: BOWES, OTT and STABILE, JJ.
MEMORANDUM BY BOWES, J.: FILED JULY 28, 2015
Michael D. Wallace, Jr. appeals from the judgment of a sentence of
eighteen to thirty-six months imprisonment entered after he pled guilty to
possession with intent to deliver (“PWID”) (heroin) and possession of
marijuana. We affirm.
We glean the following undisputed facts from the affidavit of probable
cause attached to the criminal complaint.1 On January 9, 2014, Williamsport
Police Officer Justin Snyder was working nightshift when he observed an
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1
As the notes of testimony from the guilty plea hearing were not included in
the certified record transmitted to this Court on appeal, we do not have the
benefit of the the Commonwealth’s recitation of the factual basis for
Appellant’s guilty plea. However, since the only issue that Appellant levels
on appeal relates to the discretionary aspects of sentencing, the omitted
transcript is not critical to our review.
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Oldsmobile sedan with three occupants fail to obey a stop sign at the
intersection of Seventh Avenue and Memorial Avenue in Williamsport. The
vehicle proceeded down Memorial Avenue where Officer Snyder initiated a
traffic stop. Upon approaching the automobile, Officer Snyder detected a
strong odor of marijuana. Officer Snyder instructed Appellant, who was in
the backseat, to place his hands on the back of the front seat headrest while
the officer performed a weapons frisk on the passenger he removed from the
front of the car. Appellant initially complied, but while Officer Snyder was
distracted with the other passenger, Appellant made furtive movements and
repeatedly concealed his hands near his waist.
Police Officer Jonathan Deprenda arrived at the scene while officer
Snyder was occupied with the front-seat passenger. Officer Deprenda
removed Appellant from the rear of the car and frisked him for weapons.
Appellant tried to break free from Officer Deprenda but was apprehended
and detained. During the scuffle, Appellant either dropped or discarded a
zip-lock bag containing marijuana.
Appellant was arrested and the search incident to arrest revealed three
cell phones, $367, and another zip-lock bag of marijuana packaged
identically to the first one. Officer Snyder placed Appellant in his police
cruiser for transport to police headquarters. He advised Appellant that the
back of the police cruiser had been searched for contraband prior to the start
of his shift and that anything discovered in the unit following Appellant’s
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removal would necessarily be from Appellant’s person. Upon transporting
Appellant to police headquarters and removing him from the vehicle, Officer
Snyder discovered several additional bundles of heroin on the floorboard and
seat where Appellant had been seated. A subsequent strip search revealed
fifteen more bundles of heroin, four bags of marijuana, and a marijuana
blunt. In sum, Appellant possessed 210 individually packaged bags of
heroin weighing approximately 8.4 grams, six bags of marijuana, a
marijuana blunt, $367, and three cellular telephones. He was charged with
one count of PWID between one and ten grams of heroin and one count of
possession of marijuana.
Appellant entered an open guilty plea to both charges and the trial
court ordered a pre-sentence investigation (“PSI”). N.T., Sentencing
Hearing, 11/18/14, at 2. When Appellant appeared for sentencing, it was
determined that his prior record score was two, in light of a prior felony drug
offense. However, his offense gravity score was seven due to the large
quantity of heroin that he possessed. Based upon Appellant’s scores, the
standard range of the sentencing guidelines provided for a minimum
sentence between twelve and eighteen months imprisonment. Id. at 15.
Appellant was subsequently sentenced to incarceration at a state
correctional institution for eighteen to thirty-six months, plus two years of
probation after his release. Sentencing Order, 11/18/14, at 1. No further
penalty was imposed for possession of marijuana. Id.
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In imposing sentence, the trial court ruled that Appellant was eligible
for entry into the Recidivism Risk Reduction Incentive (“RRRI”) program,
which could potentially reduce the time spent in prison to thirteen and one-
half months. N.T., Sentencing Hearing, 11/18/14, at 16. He was also given
credit for time served in the county prison while awaiting sentencing. Id. at
13. Appellant did not file a post-sentence motion. However, after the period
for filing post-sentence motions elapsed, Appellant informed his counsel that
he wished to file an appeal challenging the discretionary aspects of his
sentence.
Appellant presents the following issue for our review:
Did the trial court abuse its discretion when imposing a minimum
sentence at the top of the standard range of the sentencing guidelines,
where the Appellant entered a guilty plea, accepted responsibility, and
was in need of rehabilitation?
Appellant’s Brief at 4.
Four requirements must be met before this Court will address the
merits of an appeal concerning the discretionary aspects of sentencing.
Commonwealth v. Lebarre, 961 A.2d 176, 178 (Pa. Super. 2008). These
elements are as follows: (1) whether Appellant has filed a timely notice of
appeal; (2) whether the issue was raised at sentencing or in a post-sentence
motion and preserved in a Rule 1925(b) statement; (3) whether the brief
contains a statement of the reasons relied upon for the appeal in compliance
with Pa.R.A.P 2119(f), and; (4) whether there is a substantial question that
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the sentence appealed from is not appropriate under the sentencing code.
Id.“Issues challenging the discretionary aspects of sentencing must be
raised in a post-sentence motion or by raising the claim during sentencing
proceedings. Absent such efforts, an objection to a discretionary aspect of a
sentence is waived.” Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.
Super. 2003) (citations omitted). Instantly, Appellant failed to level a
challenge to the discretionary aspects of his sentence during the sentencing
hearing or in a post-sentence motion. Although Appellant requested during
the sentencing hearing that the trial court fashion a sentence at the lower
end of the standard range of the sentencing guidelines, he failed to
challenge the trial court’s imposition of a sentence at the top of the standard
range or argue that the sentence imposed was unreasonable or manifestly
excessive. N.T., Sentencing Hearing, 11/18/14, at 14-16. Hence, he did not
raise this discretionary sentencing issue during the sentencing hearing.
Since Appellant also failed to file a post-sentence motion asserting this issue,
it is waived.
Assuming, arguendo, that Appellant had successfully raised and
preserved this issue for appeal, his sentencing claim is meritless.
Appellant’s central argument is that the trial court abused its discretion by
sentencing him to a “clearly unreasonable” period of incarceration.
Appellant posits that a shorter sentence in the standard range would be
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more appropriate based upon a balanced consideration of the sentencing
factors. Appellant’s brief at 9-10. This argument is legally unsupported.
Herein, the trial court fashioned the sentence in accordance with the
sentencing guidelines. 204 Pa.Code § 303.1. Applying Appellant’s prior
record and offense gravity scores to the basic sentencing matrix, the court
accurately determined that the standard range for minimum terms of
confinement for PWID (between one and ten grams of heroin) fell between
twelve and eighteen months. 204 Pa.Code § 303.16. As noted, the trial
court’s sentence of eighteen to thirty-six months incarceration was at the
top end of the sentencing guidelines’ standard range.
In addition to imposing a standard range sentence, the trial court
fashioned the sentence with the benefit of the PSI report. N.T, 11/18/14, at
3. This Court has previously held that, absent more, the imposition of a
standard range sentence in combination with the existence of a PSI report
cannot be considered excessive or unreasonable. Commonwealth v. Cruz-
Centeno, 668 A.2d 536, 546 (Pa.Super. 1995); see also Commonwealth
v. Griffin, 65 A.3d 932, 937 (Pa.Super. 2013); Commonwealth v. Moury,
992 A.2d 162, 171 (Pa.Super. 2010) (same). Herein, Appellant’s argument
that a reduced sentence would reflect a more appropriate consideration of
the appropriate sentencing factors is insufficient to overcome the
presumption of reasonableness created by the combination of the trial
court’s consideration of the PSI in conjunction with its imposition of a
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standard-range sentence. Thus, even if Appellant had leveled this claim
properly and preserved it for our review, we would have rejected it.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2015
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