Com. v. Brown, J. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JORDON SCOTT BROWN
Appellant No. 719 MDA 2017
Appeal from the Judgment of Sentence December 1, 2016
In the Court of Common Pleas of Huntingdon County Criminal Division at
No(s): CP-31-CR-0000577-2015
BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD,* J.
MEMORANDUM BY FITZGERALD, J.: FILED NOVEMBER 30, 2017
Appellant, Jordon Scott Brown, appeals from his aggregate sentence of
eighteen to thirty-six years’ imprisonment for attempted manslaughter of a
law enforcement officer1 and arson (placing person in danger of death or
bodily injury).2 Appellant argues that the trial court erred by, inter alia,
miscalculating his standard range sentence for attempted manslaughter and
failing to provide reasons for imposing an aggravated range sentence for
attempted manslaughter. We affirm.
On November 28, 2015, Appellant set his family’s trailer on fire and
fired a shotgun at two state troopers who were responding to his girlfriend’s
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. §§ 901(a), 2507.
2 18 Pa.C.S. § 3301(a)(1)(i).
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call for help. On September 2, 2016, Appellant pleaded guilty to the above
offenses and to reckless endangerment3 in return for a “capped plea” of 18
to 36 years’ imprisonment, i.e., a sentence that could not exceed 18 to 36
years.
Sentencing took place on December 1, 2016. Appellant’s Sentencing
Guidelines form for attempted manslaughter indicates that his prior record
score (“PRS”) was 3, and that he was subject to a deadly weapon
enhancement for firing a shotgun during the offense. Noting that Appellant’s
offense gravity score (“OGS”) for attempted manslaughter was 13, the trial
court stated that the standard range sentence for this offense was 96 to 114
months’ imprisonment. N.T., 12/1/16, at 1-2. The trial court also observed
that the standard range sentence for arson was 30 to 42 months’
imprisonment.4 Id. at 2.
The trial court continued:
[I]t’s my duty to look at the rehabilitative needs of the
Defendant and I’ve done that but there also comes a time
when I have to look at the protection of the public and in
this case more importantly the gravity of the offenses as it
relates to the impact on the life of the victim. I heard from
these victims and what it did to them and what it did [to]
their family. You can’t take that back. You can show
remorse here and everybody can tell me what a good guy
you’ve been up to that night and after that night but you
3 18 Pa.C.S. § 2705. The trial court ultimately did not impose any penalty
for this offense.
4Appellant’s Sentencing Guidelines form for arson indicates that there was
no deadly weapon used in the commission of this offense.
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can’t take that back. You can’t take back what you did to
Trooper Harris and the fact that every time he goes on call
he’s placed at risk. You shot at a law enforcement officer
and I’m not sure how they do things in Portland, Oregon or
Charlotte, North Carolina, but when you’re in Huntingdon
County, Pennsylvania and you shoot at a law enforcement
officer there are going to be significant consequences.
Id. at 11. The trial court sentenced Appellant to 10 to 20 years’
imprisonment for attempted manslaughter and a consecutive term of 8 to 16
years’ imprisonment for arson. Id. at 12. The attempted manslaughter
sentence was in the aggravated sentencing range of 115 to 127 months,5
and the arson sentence exceeded the aggravated sentencing range of 53 to
64 months.6 Appellant’s aggregate sentence of 18 to 36 years’
imprisonment was the lengthiest sentence permissible under the terms of his
guilty plea.
Appellant filed timely post-sentence motions, which the trial court
denied, and a timely notice of appeal. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
In this appeal, Appellant raises the following issues:
1. The [s]entencing [c]ourt abused its discretion when it
sentenced [Appellant] to the statutory maximum sentence
for Criminal Attempt—Manslaughter of a Law Enforcement
Officer of a minimum period ten years to a maximum
period of twenty years, when the standard guideline range
for this offense with an OGS of 13 and a PRS of 3 is 78-96
5See 204 Pa. Code 303.18 (deadly weapon enhancement/used Sentencing
Guidelines matrix).
6 See 204 Pa. Code 303.16 (standard range Sentencing Guidelines matrix).
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months with an aggravated range of up to 108 months
[w]hile providing no reasons on the record for an
aggravated sentencing[] nor [providing] a
contemporaneous written statement giving reasons for
going outside the guidelines.
2. The [s]entencing [c]ourt abused its discretion when it
sentenced [Appellant] for Arson—Danger of Death or
Bodily Injury, by sentencing [Appellant] to a minimum
sentence of eight years to a maximum sentence of sixteen
years, when the standard guideline range for this offense
with an OGS of 9 and a PRS of 3 is 30-42 months with an
aggravated range of up to 54 months [w]hile providing no
reasons on the record for an aggravated sentencing[] nor
[providing] a contemporaneous written statement giving
reasons for going outside the guidelines.
Appellant’s Brief at 1-2.
This Court has stated that:
[c]hallenges to the discretionary aspects of sentencing do
not entitle an appellant to appellate review as of right.
Prior to reaching the merits of a discretionary sentencing
issue:
[W]e conduct a four part analysis to determine: (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).
Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing
hearing or raised in a motion to modify the sentence
imposed at that hearing.
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Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa. Super. 2006)
(quotation marks and some citations omitted).
The Rule 2119(f) statement
must specify where the sentence falls in relation to the
sentencing guidelines and what particular provision of the
Code is violated (e.g., the sentence is outside the
guidelines and the court did not offer any reasons either on
the record or in writing, or double-counted factors already
considered). Similarly, the Rule 2119(f) statement must
specify what fundamental norm the sentence violates and
the manner in which it violates that norm . . . .
Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en
banc). “Our inquiry must focus on the reasons for which the appeal is
sought, in contrast to the facts underlying the appeal, which are necessary
only to decide the appeal on the merits.” Id. (emphasis in original).
Here, Appellant timely appealed, preserved his discretionary aspects of
sentencing issue in his motion for reconsideration of sentence, and included
a Pa.R.A.P. 2119(f) statement in his brief. See Evans, 901 A.2d at 533.
Appellant’s first argument—the trial court miscalculated the standard
sentencing range for attempted manslaughter—raises a substantial question,
because we have held that “the [trial] court must begin its calculation of a
sentence from the correct starting range,” and “[w]hen a sentencing court
fails to begin its calculation of sentence from the correct starting point, this
Court will vacate the sentence and remand for reconsideration of sentence.
Commonwealth v. Raybuck, 915 A.2d 125, 129 (Pa. Super. 2006)
(citations omitted). Appellant’s second argument—the court failed to
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provide any reasons on the record or in a contemporaneous writing for
imposing an aggravated sentence—raises a substantial question as well,
given the Sentencing Code’s directive that “[i]n every case where the court
imposes a sentence ... outside the guidelines adopted by the Pennsylvania
Commission on Sentencing ... the court shall provide a contemporaneous
written statement of the reason or reasons for the deviation from the
guidelines.” 42 Pa.C.S. § 9721(b). We thus turn to the substance of
Appellant’s arguments.
We find no merit in Appellant’s challenge to the calculation of his
standard range sentence for attempted manslaughter. The trial court
correctly calculated the standard range as 96 to 114 months’ imprisonment
in view of Appellant’s PRS of 3, his OGS of 13 and the deadly weapon
enhancement for firing a shotgun.7 See 204 Pa. Code § 303.16. As a
result, the trial court arrived at Appellant’s aggravated sentence of ten to
twenty years’ imprisonment from the correct starting point. See Raybuck,
915 A.2d at 129.
Next, Appellant argues that the trial court failed to provide any
explanation for imposing aggravated range sentences. We disagree. The
trial court stated on the record (somewhat rhetorically) that the gravity of
Appellant’s crime of shooting at two law enforcement officers justified an
7 The trial court correctly calculated Appellant’s standard range sentence for
arson as 30 to 42 months’ imprisonment. See 204 Pa. Code § 303.16.
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aggravated range sentence. We disagree with Appellant’s alternative
argument that the trial court failed to provide a contemporaneous written
explanation for Appellant’s sentence in violation of 42 Pa.C.S. § 9721. The
requirement of a written statement “is satisfied when the judge states his
reasons for the sentence on the record and in the defendant’s presence.”
Commonwealth v. Widmer, 667 A.2d 215, 223 (Pa. Super. 1995),
reversed on other grounds, 689 A.2d 211 (Pa. 1997) (citation and quotation
marks omitted). The trial court fulfilled this duty by stating its reasons for
Appellant’s sentence on the record and in Appellant’s presence.
Because Appellant merely argued that the trial court gave no reasons
at all and did not directly take issue with the reasons given by the trial court
for imposing an aggravated sentence, we have no further basis to disturb
the sentence. See Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.
Super. 2003).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2017
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