Com. v. Carter, D. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
DAVID KEMPER CARTER
Appellant No. 1252 MDA 2016
Appeal from the Judgment of Sentence July 9, 2015
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0001878-2014
BEFORE: BOWES, LAZARUS, AND MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED MARCH 07, 2017
David Kemper Carter appeals from the July 9, 2015 judgment of
sentence of five to ten years imprisonment. Sentence was imposed after
Appellant was convicted by the trial court of a violation of the Uniform
Firearms Act (“VUFA”), i.e., possession of a firearm by a prohibited person,
and after he entered a guilty plea to possession of a controlled substance
with intent to deliver (“PWID”). We reject Appellant’s challenge to the
discretionary aspects of the sentence imposed and affirm.
On April 21, 2015, Appellant proceeded to a jury trial on the PWID
charge. The VUFA offense had been severed and was to be adjudicated by
the trial court. The following proof was adduced at that proceeding. On
October 18, 2014, Appellant was on state parole, and Agents Tracy Gross,
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Jason LaMay, Jon Lahr, and Matt Kieski of the Pennsylvania Board of
Probation and Parole conducted a visit at Appellant’s home on 1306 Scott
Street, Williamsport. When the agents arrived, Appellant was lying on a
couch immediately to the right of the front door and invited them into his
house. Appellant’s wife and other people were present.
Agent Gross and Appellant spoke in the kitchen, where Agent Gross
asked Appellant if there were any items in the house that would constitute a
violation of his parole. Appellant acknowledged that there was marijuana in
his wife’s purse, more marijuana on top of the refrigerator, and a gun on the
sofa where he had been lying. Appellant’s wife gave her handbag to Agent
Gross, who looked inside and found a large baggie containing nineteen
smaller baggies of marijuana. Agent Gross recovered additional marijuana,
consisting of eighty-eight individually packaged bags of marijuana worth ten
dollars each, on top of the refrigerator. The weapon, a loaded .22 caliber
semiautomatic handgun, was on top of the couch, but it was underneath a
pillow. The agents also recovered a digital scale on the nightstand in an
upstairs bedroom, a holster underneath the bed, and ammunition for the
gun on top of the refrigerator. An expert witness indicated that the
marijuana was possessed with intent to deliver.
After this proof was submitted at the jury trial, a mistrial was declared
due to a reference to infirm evidence. The trial court proceeded to
adjudicate the VUFA offense. Appellant’s wife Heather Marie Hersh testified
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that the gun belonged to her and that she purchased it for protection. The
trial court found Ms. Hersh’s testimony incredible and concluded that
Appellant, a convicted felon, possessed the weapon recovered on the couch.
It adjudicated Appellant guilty of the VUFA violation. Thereafter, on May 12,
2015, Appellant elected to plead guilty to PWID pursuant to a negotiated
plea agreement whereby he was to receive a concurrent sentence on that
crime.
On July 9, 2015, the matter proceeded to sentencing, where the trial
court had the benefit of a presentence report. Since Appellant had a prior
record score of five, the standard range for the VUFA conviction was five to
six years, with an aggravated range of seven years. The Commonwealth
asked for an aggravated range sentence because Appellant’s young
grandchildren were present on the day of the home visit and the loaded gun
was accessible to them. It also pointed out that Appellant had three prior
convictions for PWID and one for carrying an unlicensed gun.
Appellant argued for a mitigated range sentence based upon
Appellant’s cooperation with Agent Gross on the day of the home visit and
due to “serious medical concerns that [Appellant] faces on a day-to-basis.”
N.T. Sentencing, 7/9/15, at 5. Specifically, Appellant had been shot in the
spine, had a colostomy, and had a history of kidney and heart problems and
urinary tract infections. Appellant pointed out to the trial court that he had
not committed a criminal offense since 2006. Finally, Appellant asserted
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that he bought the gun for self-protection, after he was assaulted by
neighbors.
Appellant was sentenced to a standard-range sentence of five to ten
years imprisonment for the VUFA conviction, and, concurrently, as required
by the plea agreement, on the PWID offense. He filed a timely motion for
reconsideration of the sentence, maintaining that it should have been in the
mitigated range due to the noted health problems and his period of good
behavior. That motion was denied, and Appellant filed a direct appeal, which
was dismissed due to his failure to file a brief. Appellant filed a timely PCRA
petition, counsel was appointed, and Appellant’s appellate rights were
reinstated nunc pro tunc. This timely appeal followed. Appellant complied
with the court’s directive to file a Pa.R.A.P. 1925(b) statement, and the
matter is read for our review.
Appellant presents this question:
I. Did the trial court abuse its discretion when it imposed
periods of incarceration for a manifestly excessive
aggregate sentence of five (5) years to ten (10) years
when the Court failed to consider mitigating factors such
as Mr. Carter's medical needs, his cooperation with police
and parole agents, and his motives for possessing the
firearm?
Appellant’s brief at 11.
As we recently observed in Commonwealth v. McLaine, 150 A.3d
70, 76 (Pa.Super. 2016) (citation omitted), “[a]n appellant is not entitled to
the review of challenges to the discretionary aspects of a sentence as of
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right.” Instead, to invoke our jurisdiction involving a challenge to the
discretionary aspects of a sentence, an appellant must satisfy the following
four-part test:
(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).
Id.
Instantly, Appellant filed a timely appeal, and preserved his contention
in his motion for reconsideration of sentence as well as his Pa.R.A.P. 1925(b)
statement. Additionally, his brief contains a Pa.R.A.P. 2119(f) statement.
See Appellant’s brief at 16.1 Appellant maintains that his sentence is
excessive as the sentencing court did not consider the mitigating facts at
issue herein. Appellant relies upon Commonwealth v. Perry, 883 A.2d
599, 602 (Pa.Super. 2005), wherein we ruled that the defendant raised a
substantial question when he averred that his sentence was manifestly
excessive and that the court “failed to consider substantial mitigating factors
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1
The Commonwealth has not filed its brief in this matter.
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presented on his behalf.” Accordingly, Appellant has presented a substantial
question, and we will address the merits of his claim on appeal.2
We note that:
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.
When imposing sentence, a court is required to consider the
particular circumstances of the offense and the character of the
defendant. In considering these factors, the court should refer to
the defendant's prior criminal record, age, personal
characteristics and potential for rehabilitation.
McLaine, supra at 75–76.
The seminal case setting forth the parameters of the Superior Court’s
review of a sentence is Commonwealth v. Walls, 926 A.2d 957 (Pa.
2007). The Walls Court stressed the deferential nature of our examination
of any sentence, stating that the “sentencing court is in the best position to
determine the proper penalty for a particular offense based upon an
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2
We acknowledge that the Superior Court has issued conflicting decisions
as to what constitutes a substantial question, including whether a substantial
question is raised when the defendant claims that the court did not consider
mitigating factors. See Commonwealth. v. Dodge, 77 A.3d 1263, 1272 n.
8 (Pa.Super. 2013) (en banc). In light of the alignment of Appellant’s
averments set forth in Perry, we conclude that a substantial question is
raised herein.
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evaluation of the individual circumstances before it.” Id. at 961 (citation
and quotation marks omitted). Our Supreme Court noted that this Court’s
ability to review a sentence is constrained by 42 Pa.C.S. § 9781(c). That
statute provides that we can vacate a sentence and remand for re-
sentencing only if we find 1) that the court intended to sentence within the
guidelines but “applied the guidelines erroneously;” 2) a sentence was
imposed within the guidelines “but the case involves circumstances where
the application of the guidelines would be clearly unreasonable;” or 3) “the
sentencing court sentenced outside the sentencing guidelines and the
sentence is unreasonable.” 42 Pa.C.S. § 9781(c). “In all other cases the
appellate court shall affirm the sentence imposed by the sentencing court.”
Id.
Thus, since the present case was within the guidelines, we can reverse
only if application of the guidelines was clearly unreasonable. While the
statute does not contain a definition of what renders a sentence
unreasonable, the Walls Court filled in that gap, stating: “‘unreasonable’
commonly connotes a decision that is ‘irrational’ or not guided by sound
judgment.” Id. at 963. Additionally, § 9781(d) of the Sentencing Code
provides that when we review the record, we must have regard for:
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
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(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).
The Supreme Court in Walls held that a sentence can be deemed
unreasonable only after review of the four elements contained in § 9781(d)
or if the sentencing court failed to take into account the factors outlined in
42 Pa.C.S. § 9721(b). That statute states in pertinent part:
[T]he 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 relates to
the impact on the life of the victim and on the community, and
the rehabilitative needs of the defendant. The court shall also
consider any guidelines for sentencing adopted by the
Pennsylvania Commission on Sentencing[.]
42 Pa.C.S. § 9721(b)
We reject Appellant’s claim that the court did not take into account his
health problems and other mitigating factors, such as his openness with
Parole Agent Gross about the drugs and gun in his home and his period of
good behavior. These facts were argued in mitigation, and the court had a
presentence report. We thus are required to presume that the sentencing
court weighed the mitigating factors present in this matter.
Commonwealth v. Macias, 968 A.2d 773 (Pa.Super. 2009). Indeed, our
Supreme Court has articulated that if “it can be demonstrated that the judge
had any degree of awareness of the sentencing considerations,” the
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appellate courts must “presume . . . that the weighing process took place in
a meaningful fashion. It would be foolish, indeed, to take the position that if
a court is in possession of the facts, it will fail to apply them to the case at
hand.” Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). In the
present case, the sentencing court was well aware of all the facts that
Appellant now relies upon in mitigation of his sentence.
Additionally, our review of the court’s statements in support of its
sentence confirm that it actually considered the mitigating circumstances
herein. In justification of its sentence, it observed that the sentence “was at
the lowest end of the standard range,” that Appellant had a prior record
score of five, and that he received a concurrent sentence on a PWID charge.
Trial Court Opinion, 9/20/16, at 2. In its sentencing order, the court stated
that it “rejected the request for an aggravated sentence due to, in part, the
fact that [Appellant] had had a substantial period of good behavior after his
last criminal act[.]” Sentencing Order, 7/9/15, at (unnumbered page) 2. It
also asked that “the State Correctional Institute when classifying [Appellant]
consider his medical needs in assigning him to an appropriate place of
incarceration.” Id. In further support of its sentencing decision, the
sentencing court articulated that Appellant “chose to possess a loaded .22
caliber semi-automatic pistol on a couch cushion within his reach at his
residence while also possessing drugs with the intent to deliver them” while
children were visiting. Trial Court Opinion, 9/20/16, at 4. In its order and
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opinion, the court expressly weighed all the pertinent sentencing factors.
Accordingly, the court did not violate § 9721(b).
Moreover, our consideration of the factors outlined in § 9781(d)
confirms that this standard-range sentence cannot be characterized as
clearly unreasonable and did not constitute a manifest abuse of discretion.
Commonwealth v. Corley, 31 A.3d 293, 298 (Pa.Super. 2011) (where the
sentencing court imposed a standard-range sentence with the benefit of a
pre-sentence report, we will not consider the sentence excessive).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/7/2017
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