Com. v. Ushery, N. ( 2015 )

J-S58027-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NATHANIEL BERNARD USHERY,
Appellant No. 652 MDA 2015
Appeal from the Judgment of Sentence March 13, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0005985-2010
BEFORE: GANTMAN, P.J., OLSON AND PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 14, 2015
Appellant, Nathaniel Bernard Ushery appeals from the judgment of
sentence entered on March 13, 2015,1 as made final by the denial of his
post-sentence motion on April 9, 2015. We affirm.
The factual background and procedural history of this case are as
follows. On November 18, 2010, Appellant was arrested with 11 sandwich
bags of marijuana, a cell phone, and $149.00 in currency. On February 28,
2011, Appellant was charged via criminal information with possession with
1
The notes of testimony from Appellant’s revocation hearing indicate that he
was sentenced on February 13, 2015. Our review of the record, however,
shows that this is a typographical error and that Appellant was sentenced on
March 13, 2015.
* Retired Senior Judge assigned to the Superior Court
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intent to deliver a controlled substance.2 On March 28, 2011, Appellant pled
guilty and was immediately sentenced to 23 months’ probation.
On November 8, 2011, Appellant’s probation was revoked and he was
sentenced to 23 months’ probation. On October 10, 2013, Appellant’s
probation was again revoked and he was again sentenced to 23 months’
probation. At his October 10, 2013 revocation hearing, Appellant was told
that, if he tested positive for illegal drugs while on probation, his probation
would be revoked and he would be sentenced to a state term of
imprisonment.
On February 10, 2015, Appellant tested positive for marijuana. On
March 13, 2015, Appellant’s probation was revoked and he was sentenced to
one to two years’ imprisonment. Appellant filed a post-sentence motion
which was denied on April 9, 2015. This timely appeal followed.3
Appellant presents one issue for our review:
Whether the trial court erred in denying Appellant’s [p]ost-
[s]entence [m]otion where his sentence was excessive and
unreasonable and constitutes too severe a punishment in light of
the alleged gravity of the offense, Appellant’s rehabilitative
needs, and what is needed to protect the public?
Appellant’s Brief at 5.
2
35 P.S. § 780-113(a)(30).
3
On April 16, 2015 the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On April 28, 2015, Appellant filed his concise statement.
On May 4, 2015, the trial court issued its Rule 1925(a) opinion. Appellant’s
lone issue on appeal was included in his concise statement.
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Appellant argues that his sentence was excessive. This claim does not
challenge the revocation of Appellant’s probation. Rather, Appellant’s claim
challenges the discretionary aspects of his sentence. See Commonwealth
v. Schutzues, 54 A.3d 86, 91 (Pa. Super. 2012), appeal denied, 67 A.3d
796 (Pa. 2013); Commonwealth v. Reid, 117 A.3d 777, 784 (Pa. Super.
2015). “[T]his [C]ourt’s scope of review in an appeal from a revocation
sentencing includes discretionary sentencing challenges.” Commonwealth
v. Cartrette, 83 A.3d 1030, 1034 (Pa. Super. 2013) (en banc).
We note that “[s]entencing 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.” Commonwealth v. Gonzalez, 109
A.3d 711, 731 (Pa. Super. 2015) (citation omitted). Pursuant to statute,
Appellant does not have an automatic right to appeal the discretionary
aspects of his sentence. See 42 Pa.C.S.A. § 9781(b). Instead, Appellant
must petition this Court for permission to appeal the discretionary aspects of
his sentence. Id.
As this Court has explained:
To reach the merits of a discretionary sentencing issue, we
conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, Pa.R.A.P. 902, 903;
(2) whether the issue was properly preserved at sentencing or in
a motion to reconsider and modify sentence, Pa.R.Crim.P. 708;
(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).
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Commonwealth v. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014),
appeal denied, 99 A.3d 925 (Pa. 2014) (internal alterations and citation
omitted); see also Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa.
Super. 2008) (“when a court revokes probation and imposes a new
sentence, a criminal defendant needs to preserve challenges to the
discretionary aspects of that sentence either by objecting during the
revocation sentencing or by filing a post-sentence motion”). Appellant filed
a timely notice of appeal and the issue was properly preserved in a post-
sentence motion. Appellant’s brief also includes a statement pursuant to
Pennsylvania Rule of Appellate Procedure 2119(f). Thus, we turn to whether
this appeal presents a substantial question.
Since Appellant was sentenced following the revocation of probation,
the sentencing guidelines do not apply to Appellant’s sentence. 204 Pa.
Code § 303.1(b); Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014)
(citation omitted). Nevertheless, in sentencing Appellant, the trial court was
required to “consider the general principles and standards of the Sentencing
Code.” Commonwealth v. Russell, 460 A.2d 316, 322 (Pa. Super. 1983).
Section 9721 expresses these general principles in the following manner:
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.
42 Pa.C.S.A. § 9721(b).
As we have explained:
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The determination of whether a particular case raises a
substantial question is to be evaluated on a case-by-case basis.
Generally, however, in order to establish that there is a
substantial question, the appellant must show actions by the
sentencing court inconsistent with the Sentencing Code or
contrary to the fundamental norms underlying the sentencing
process.
Commonwealth v. Yeomans, 24 A.3d 1044, 1049 (Pa. Super. 2011)
(citation omitted). In his Rule 2119(f) statement, Appellant argues that his
sentence was excessive and that the trial court failed to meaningfully
consider certain mitigating factors. “[A]n excessive sentence claim—in
conjunction with an assertion that the court failed to consider mitigating
factors—raises a substantial question.” Commonwealth v. Caldwell, 117
A.3d 763, 770 (Pa. Super. 2015) (citation omitted). Accordingly, Appellant
has raised a substantial question and we turn to the merits of his
discretionary aspects claim.
Appellant argues that the trial court failed to meaningfully consider the
fact that he was employed or actively seeking employment while on
probation. Appellant also argues that he had been clean for an extended
period of time prior to his positive test in February 2015. He contends that
three recent deaths in his family caused him to relapse and test positive for
marijuana. According to Appellant, his state sentence was therefore
excessive.
The trial court considered Appellant’s mitigating factors when
sentencing Appellant. See N.T., 3/13/15, at 4. It determined, however,
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that the mitigating factors were outweighed by the necessity to vindicate its
earlier warning to Appellant. Id. at 4-5. This was not Appellant’s first
misstep while on probation. Instead, it was his third misstep over a four-
year time period. The trial court reasonably determined that probation was
not working and incarceration was necessarily in order to protect the public
and assist in Appellant’s rehabilitation. Accordingly, we ascertain no abuse
of discretion in the trial court’s sentence of one to two years’ imprisonment.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2015
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