Com. v. Lawrence, C. ( 2018 )


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  • J-S23019-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    CHRIS LAWRENCE                             :
    :
    Appellant               :   No. 3539 EDA 2016
    Appeal from the Judgment of Sentence July 1, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
    No(s): CP-51-CR-0008435-2013,
    CP-51-CR-0008752-2013
    BEFORE:      SHOGAN, J., NICHOLS, J., and STEVENS, P.J.E.*
    MEMORANDUM BY NICHOLS, J.:                             FILED AUGUST 01, 2018
    Appellant Chris Lawrence appeals from the judgments of sentence to
    serve an aggregate 27½ to 55 years’ imprisonment imposed following his
    convictions in the above-captioned cases.              Appellant challenges the
    discretionary aspects of his sentence. For the reasons that follow, we affirm
    in part, but vacate the sentences on one count of aggravated assault and two
    counts of violations of the Uniform Firearms Act (VUFA).
    The trial court set forth the facts in CP-51-CR-0008435-2013 (8435-
    2013) as follows:
    On May 14, 2013, around 12:40 a.m., Police Officer Thomas
    Schaffling heard gunshots in the area of the 2500 block of North
    5th Street[, Philadelphia]. About 20 seconds later, Mr. Ryan Benes
    pulled up driving a white utility truck [in front] of the Number One
    ____________________________________________
    *   Former Justice specially assigned to the Superior Court.
    J-S23019-18
    Chinese Store. Officer Schaffling and his partner entered the store
    and saw a black male on the floor, later identified as Mr. Montez
    Perrin. The officers also observed another black male leaned
    against the wall to the left who had blood dripping from his hand
    identified as Mr. William Floyd. The officers first believed Mr. Perrin
    was deceased, however, he suddenly took a gasp of air. The
    officers then decided to load Mr. Perrin into a police cruiser and
    take him to the hospital. Eventually, when the officers were
    securing the scene, another man, Nicholas Sicard, came walking
    off Lawrence Street with a gunshot wound from the incident.
    Trial Ct. Op., 10/31/17, at 2-3.           Appellant was charged with numerous
    offenses,    including    attempted      murder,   aggravated    assault,   robbery,
    conspiracy, firearms not to be carried without a license (VUFA 6106), and
    carrying a firearm on a public street (VUFA 6108).1
    In CP-51-CR-0008752-2013 (8752-2013), Appellant was charged with
    one count of possession of a firearm by a prohibited person (VUFA 6105). 2
    Although the facts underlying that conviction are not detailed in the record,
    the criminal complaint states that the date of the offense was May 17, 2013,
    which was the date of Appellant’s arrest for the robberies.
    On July 12, 2013, the Commonwealth filed an information in 8435-2013
    charging Appellant with twenty-two counts.           The information contained a
    notice that the Commonwealth intended to pursue “second-strike” mandatory
    minimum sentences under 42 Pa.C.S. § 9714 for attempted murder,
    ____________________________________________
    1  18 Pa.C.S. §§ 901(a), 2702, 3701(a)(1)(i), 903, 6106, and 6108,
    respectively.
    2   18 Pa.C.S. § 6105.
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    aggravated assault, and           robbery      counts.3   On July   17, 2013, the
    Commonwealth filed an information in 8752-2013 charging Appellant with a
    single count of VUFA 6105.
    Appellant proceeded to a jury trial in 8435-2013. On April 25, 2016, a
    jury found Appellant of guilty of one count each of attempted murder,
    conspiracy, VUFA 6106 and VUFA 6108, and three counts each of aggravated
    assault, and robbery. The trial court held a separate nonjury trial in 8752-
    2013 and, on April 29, 2016, found Appellant guilty of one count of VUFA
    6105.
    On July 1, 2016, the trial court, in 8435-2013, sentenced Appellant to
    15 to 30 years’ incarceration for the attempted murder of Perrin4 and
    mandatory 10 to 20 years’ incarceration each for the remaining three counts
    of robbery and aggravated assault.5             The sentences for the robberies and
    ____________________________________________
    3 Of relevance to this appeal, 42 Pa.C.S. § 9714(a)(1) requires the imposition
    of a ten-year mandatory minimum sentence upon a second conviction of a
    crime of violence. We add that mandatory minimum sentences based on prior
    convictions do not violate Alleyne v. United States, 
    570 U.S. 99
     (2013).
    See Commonwealth v. Reid, 
    117 A.3d 777
    , 784 (Pa. Super. 2015).
    4 At sentencing, the parties agreed that the jury rendered a verdict finding
    that the attempted murder caused serious bodily injury.                 See
    Commonwealth v. Barnes, 
    167 A.3d 110
    , 121 (Pa. Super. 2017) (en banc).
    5 The trial court stated at the sentencing hearing that it merged the count of
    aggravated assault as to Perrin into the count of attempted murder. However,
    the written sentencing order states that it imposed a concurrent sentence on
    that count.
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    aggravated assault were ordered to run concurrently to each other but
    consecutive to the sentence for attempted murder.              The court further
    sentenced Appellant to concurrent terms of 3½ to 7 years’ incarceration for
    VUFA 6106, and 2½ to 5 years’ incarceration for VUFA 6108. The trial court
    applied the deadly weapon used enhancement6 (DWE-used) to all of the
    counts in 8435-2013, including the two VUFA counts.
    The trial court also sentenced Appellant to 2½ to 5 years’ incarceration
    for VUFA 6105 in 8752-2013, to run consecutively to the sentences imposed
    in 8435-2013. 
    Id.
     The resulting aggregate sentence for both cases was 27½
    to 55 years’ incarceration. 
    Id.
    Appellant filed timely post-sentence motions in both cases arguing, in
    relevant part, that the trial court failed to consider mitigating circumstances
    at sentencing. Appellant further suggested that the trial court’s aggregate
    sentence exceeded the sentencing guideline applicable to attempted murder.
    The trial court denied Appellant’s motion by operation of law on November 2,
    2016.
    On November 9, 2016, Appellant filed timely notices of appeal in both
    cases. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
    In its Rule 1925(a) opinion, the trial court stated, in relevant part, that
    the aggregate sentence imposed was not excessive. Trial Ct. Op., 10/31/17,
    at 20-21. The court indicated that it considered the sentencing guidelines and
    ____________________________________________
    6   See 
    204 Pa. Code §§ 303.10
    (a), 303.17(b).
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    weighed Appellant’s age, background, rehabilitative needs, and the testimony
    offered at the sentencing hearing. Id. at 21.
    Appellant raises a single question for our review:
    Did the trial court commit an abuse of discretion because it
    imposed a sentence that was excessive under the circumstances
    given that the honorable court did not consider Appellant’s
    mitigating circumstances?
    Appellant’s Brief at 4.
    Appellant contends that the trial court’s sentence was excessive and that
    the court failed to consider mitigating factors. Appellant’s Brief at 20. He
    further claims that the sentencing court focused solely on the seriousness of
    the crime in fashioning the sentence. Id. Finally, Appellant asserts that the
    sentencing court provided no explanation for why a sentence of this particular
    length was warranted, nor did it offer any reasons for the sentence “other
    than to say [the court] chose a sentence that was approximately halfway
    between what defense counsel and the prosecutor suggested would be an
    appropriate aggregate sentence.” Id. at 30-31.
    The Commonwealth counters that the trial court did not abuse its
    discretion in sentencing Appellant.   In support, the Commonwealth argues
    that “the sentencing court had no alternative but to impose mandatory
    minimum sentences 42 Pa.C.S. § 9714(a)(1), (d) for [Appellant]’s robbery,
    aggravated assault, and conspiracy convictions” and that Appellant has failed
    to   show    that   his   aggregate   sentence    is   manifestly   excessive.
    Commonwealth’s Brief at 8.
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    The Commonwealth, however, observes that although the trial court
    stated that it intended to merge the count of aggravated assault as to Perrin
    with the count of attempted murder, the written sentencing order states that
    the court imposed a concurrent sentence of 10 to 20 years’ imprisonment.
    The Commonwealth also notes that the trial court erred in using the DWE to
    calculate the sentencing ranges for VUFA 6106 and 6108 because “the deadly
    weapon enhancement does not apply to [VUFA].” Id. at 12-13 (citing 
    204 Pa. Code § 303.10
    (a)(3)(viii)). Regardless, the Commonwealth suggests because
    the court imposed the sentences for those counts concurrently, the sentences
    may be vacated without affecting the overall sentencing scheme. Id. at 13.
    The issues raised by Appellant implicate the discretionary aspects of the
    trial court’s sentence. It is well-settled that a challenge to the discretionary
    aspects of sentencing is not automatically reviewable as a matter of right.
    Commonwealth v. McNear, 
    852 A.2d 401
    , 407 (Pa. Super. 2004). To reach
    the merits of a discretionary issue, this Court must determine whether the
    appellant: (1) preserved the issue either by raising it at the time of sentencing
    or in a post-sentence motion; (2) filed a timely notice of appeal; (3) set forth
    a concise statement of reasons relied upon for the allowance of his appeal
    pursuant to Pa.R.A.P. 2119(f); and (4) raises a substantial question for our
    review. Commonwealth v. Dunphy, 
    20 A.3d 1215
    , 1220 (Pa. Super. 2011).
    Appellant has timely appealed and included a Rule 2119(f) statement in
    his brief. Appellant also timely filed post-sentence motions that preserved his
    claim that the trial court failed to consider mitigating factors.      However,
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    Appellant’s post-sentence motion did not raise a claim that the trial court’s
    statement for imposing the sentence was inadequate, and Appellant did not
    object at the sentencing hearing.     Therefore, this claim is waived.     See
    Pa.R.A.P. 302 (“Issues not raised in the lower court are waived and cannot be
    raised for the first time on appeal”); Commonwealth v. Reeves 
    778 A.2d 691
    , 692-93 (Pa. Super. 2001) (noting waiver is appropriate where the
    appellant failed to provide the trial court with an opportunity to consider the
    claim or correct its error).
    Appellant’s Rule 2119(f) statement challenges the trial court’s failure to
    consider mitigating factors and an attendant claim that the sentence was
    excessive. Appellant’s assertion that the aggregate sentence was excessive,
    however, amounts to little more than a challenge to the consecutive nature of
    (1) the 15-to-30 year sentence for attempted murder, (2) the mandatory 10-
    to 20-year sentences for the remaining aggravated assaults and robberies,
    and (3) the 2½-to-5 year sentence for VUFA 6105. Such a challenge ordinarily
    does not raise a substantial question where, as here, there were multiple
    victims of Appellant’s crimes and separate criminal incidents.             See
    Commonwealth v. Radecki, 
    180 A.3d 441
    , 468 (Pa. Super. 2018).
    Nevertheless, “an excessive sentence claim—in conjunction with an assertion
    that the court failed to consider mitigating factors—raises a substantial
    question.” See Commonwealth v. Caldwell, 
    117 A.3d 763
    , 770 (Pa. Super.
    2015) (en banc) (citation omitted). Therefore, we will consider Appellant’s
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    arguments that the aggregate sentence was excessive and that the trial court
    failed to consider mitigating factors.
    “Sentencing is a matter vested within the discretion of the trial court
    and will not       be   disturbed absent       a manifest abuse         of discretion.”
    Commonwealth v. Crump, 
    995 A.2d 1280
    , 1282 (Pa. Super. 2010) (citing
    Commonwealth v. Johnson, 
    967 A.2d 1001
     (Pa. Super. 2009)). “An abuse
    of   discretion   requires    the   trial   court   to   have   acted   with   manifest
    unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
    support so as to be clearly erroneous.” 
    Id.
     (citing Commonwealth v. Walls,
    
    926 A.2d 957
     (Pa. 2007)).
    Where a sentence is imposed within the guidelines, we may only reverse
    the trial court if we find that the circumstances of the case rendered the
    application of the guidelines “clearly unreasonable.” 42 Pa.C.S. § 9781(c).
    Our review of the reasonableness is based upon the factors contained in 42
    Pa.C.S. § 9781(d), and the trial court’s consideration of the general sentencing
    standards contained in 42 Pa.C.S. § 9721(b).7              See Commonwealth v.
    Baker, 
    72 A.3d 652
    , 663 (Pa. Super. 2013).
    ____________________________________________
    7 Section 9721(b) states 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.” 42 Pa.C.S. §
    9721(b).
    Section 9781(d) provides:
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    In fashioning a sentence, the trial court is required to consider the
    particular circumstances of the offense and the character of the defendant.
    See Commonwealth v. Ventura, 
    975 A.2d 1128
    , 1135 (Pa. Super. 2009);
    42 Pa.C.S. § 9721(b)).        The court should reference “the defendant’s prior
    criminal record, age, personal characteristics, and potential for rehabilitation.”
    Id. Although “[a] sentencing court need not undertake a lengthy discourse
    for its reasons for imposing a sentence, . . . the record as a whole must reflect
    the sentencing court’s consideration of the facts of the crime and character of
    the offender.” Crump, 
    995 A.2d at 1283
    . Further, this Court has held that
    “where the sentencing judge had the benefit of a pre-sentence investigation
    report [(PSI)], it will be presumed that he or she was aware of the relevant
    information     regarding    the    defendant’s   character   and   weighed   those
    considerations along with mitigating statutory factors.” Ventura, 
    975 A.2d at 1135
    .
    ____________________________________________
    In reviewing the record, the appellate court shall 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.
    (3) The findings upon which the sentence was based.
    (4) The guidelines promulgated by the commission.
    42 Pa.C.S. § 9781(d).
    -9-
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    As to Appellant’s claim that the trial court failed to consider mitigating
    factors, a review of the sentencing transcript indicates that the trial court was
    aware of all relevant factors. The court had the benefit of a PSI, and we can
    presume that the court read and considered the contents of the report.8 See
    Commonwealth v. Hallock, 
    603 A.2d 612
    , 616 (Pa. Super. 1992); Ventura,
    
    975 A.2d at 1135
    . Moreover, the sentencing transcript reveals that the court
    heard: (1) testimony from Appellant’s mother; (2) a statement from the
    mother of Appellant’s children; (3) the results of Appellant’s mental health
    evaluation and diagnosis of bipolar disorder; and (4) information regarding
    Appellant’s age and background.            See N.T., 7/1/17, at 6-12.   Therefore,
    Appellant’s assertion that the trial court failed to consider mitigating factors
    warrants no relief.9
    As to Appellant’s claim that the aggregate sentence was excessive, the
    trial court was well aware of the nature and circumstances of the offenses.
    ____________________________________________
    8 We note that the PSI was not included in the record. However, the court
    indicated in its Rule 1925(a) opinion that the PSI mentioned Appellant’s age
    and discussed his difficult upbringing and mental health history, among other
    factors. See Trial Ct. Op., 10/31/17, at 21.
    9  Indeed, the trial court’s sentence was below the Commonwealth’s
    recommendation of a statutory maximum sentence for attempted murder.
    Moreover, the trial court, which imposed a concurrent sentence for robbery as
    to robbery of Perrin, rejected the Commonwealth’s argument that consecutive
    sentences were appropriate because the robbery and attempted murder
    constituted separate acts. Cf. Commonwealth v. Payne, 
    868 A.2d 1257
    ,
    1262-63 (Pa. Super. 2005) (holding that robbery resulting in serious bodily
    injury did not merge with aggravated assault causing serious bodily injury).
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    J-S23019-18
    Appellant and two co-conspirators robbed three individuals (Perrin, Sicard,
    and Floyd) inside a Chinese food store. Appellant and his co-conspirators took
    $250 and an iPhone from Sicard and an iPhone from Perrin. When a fight
    broke out during the robbery, one of Appellant’s co-conspirators fled the store.
    However, Appellant and his remaining co-conspirator fired more than sixteen
    shots inside the store, striking Perrin six times and nearly killing him. Both
    Sicard and Floyd were also shot. In light of these circumstances, we cannot
    conclude that the aggregate sentence was clearly unreasonable or excessive.
    Lastly, we address the two issues raised by the Commonwealth.10 First,
    the trial court stated its intent to merge the count for the aggravated assault
    of Perrin into the sentence for the attempted murder of Perrin. See N.T.,
    7/1/17, at 21-22.       The written sentencing order, however, states that the
    court imposed a concurrent ten-to-twenty year sentence on the count of
    aggravated assault as to Perrin. Merger implicates the legality of a sentence
    and may be addressed by this Court sua sponte. Commonwealth v. Kelly,
    
    78 A.3d 1136
    , 1146 (Pa. Super. 2013).              Aggravated assault is a lesser-
    included offense of attempted murder, and it merges for sentencing purposes
    when it is premised on the same act. Commonwealth v. Hilliard, 
    172 A.3d 5
    , 13 (Pa. Super. 2017) (citing Commonwealth v. Anderson, 
    650 A.2d 20
    ,
    24 (Pa. 1994)). Accordingly, because the charges of aggravated assault and
    ____________________________________________
    10 We appreciate the Commonwealth’s candor, as the appellee, in raising
    possible sentencing issues to this Court’s attention, notwithstanding the fact
    that Appellant did not raise these claims.
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    J-S23019-18
    attempted murder committed against Perrin stemmed from the same act,
    those crimes merge for sentencing purposes. Therefore, we vacate the ten-
    to-twenty year sentence for aggravated assault as to Perrin.
    Second, the Commonwealth notes that the trial court improperly applied
    the DWE-used guidelines to the VUFA 6106 and VUFA 6108 convictions in
    8435-2013. We agree. The Sentencing Guidelines provide that “[t]here shall
    be no Deadly Weapon Enhancement for . . . [v]iolations of the Pennsylvania
    Uniform Firearms Act.”        
    204 Pa. Code § 303.10
    (a)(3)(viii).   Therefore, we
    accept the Commonwealth’s invitation to vacate the VUFA sentences for VUFA
    6106 and VUFA 6108.11
    ____________________________________________
    11There is no indication that the trial court applied the DWE-used matrix to
    the separate charge of VUFA 6105 in 8752-2013. Unlike the VUFA counts in
    8435-2013, which were related to other crimes involving the use of a deadly
    weapon, the VUFA 6105 was the sole count in 8752-2013. Moreover, the
    court’s sentence of 2½ to 5 years imprisonment for VUFA 6105 was below the
    mitigated range sentence suggested by the basic sentencing matrix.
    We acknowledge that Appellant’s 2½-to-5-year sentence for VUFA 6106 fell
    far below the mitigated range sentence called for by the DWE-used matrix,
    and approximately six months below a mitigated range sentence under the
    standard matrix. Nevertheless, because the trial court purported to apply the
    DWE-used matrix to this offense, its application of the Sentencing Guidelines
    may be deemed a basis for vacating a sentence. See 42 Pa.C.S. § 9781(c)(1)
    (“The appellate court shall vacate the sentence and remand the case to the
    sentencing court with instructions if it finds . . . the sentencing court
    purported to sentence within the sentencing guidelines but applied the
    guidelines erroneously”).
    We acknowledge that although a misapplication of the Sentencing Guideline
    constitutes “legal error,” it does not constitute a non-waivable challenge to
    the “legality of sentence” warranting sua sponte review.                 See
    Commonwealth v. Archer, 
    722 A.2d 203
    , 209 (Pa. Super. 1998) (en banc).
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    J-S23019-18
    In sum, we conclude that Appellant’s sentencing claims are meritless.
    However, the concurrent sentence for aggravated assault as to Perrin and the
    concurrent sentences for VUFA 6106 and 6108 in 8435-2013 should be
    vacated. Because vacating these sentences does not affect the trial court’s
    overall sentencing scheme, there is no need to remand for resentencing.
    Judgment of sentence affirmed in part. The sentences for aggravated
    assault as to Perrin, VUFA 6106, and VUFA 6108 in 8435-2013 are vacated.
    Jurisdiction relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 8/1/18
    ____________________________________________
    Here, however, the Commonwealth has called our attention to the error, and
    we have considered it in this appeal for the reasons set forth above.
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