Com. v. Price, S. ( 2018 )

J-A20030-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SETH WAYNE PRICE :
:
Appellant : No. 1289 WDA 2017
Appeal from the Judgment of Sentence January 29, 2016
In the Court of Common Pleas of Bedford County Criminal Division at
No(s): CP-05-CR-0000006-2015,
CP-05-CR-0000123-2015, CP-05-CR-0000526-2015
BEFORE: BENDER, P.J.E., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 07, 2018
Seth Wayne Price appeals nunc pro tunc from the judgment of sentence,
entered in the Court of Common Pleas of Bedford County, after entering a
negotiated open guilty plea to two counts of possession of gas precursors,1
two counts of possession with intent to deliver methamphetamine (PWID),2
two counts of operating a methamphetamine laboratory,3 two counts of risking
catastrophe,4 and one count each of simple possession,5 possession of drug
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1 35 P.S. § 780-113.1(a)(3).
2 35 P.S. § 780-113(a)(30).
3 35 P.S. § 780-113.4(a)(1).
4 18 Pa.C.S. § 3302(b).
5 35 P.S. § 780-113(a)(16).
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paraphernalia,6 driving under the influence of a controlled substance (DUI),7
resisting arrest,8 and simple assault.9 Upon careful review, we affirm.
This appeal stems from Price’s operation of a methamphetamine
laboratory and related activity. First apprehended in early 2015 on charges
pertaining to manufacturing and intending to distribute methamphetamine,
Price entered a guilty plea on February 2, 2015 to the following charges: (1)
possession of precursors, (2) PWID, (3) operating a methamphetamine
laboratory, (4) risking catastrophe, (5) simple possession of
methamphetamine, (6) possession of drug paraphernalia, and (7) DUI. This
plea derived from a traffic stop wherein Price appeared sluggish, with
bloodshot eyes. When the officer asked Price if he had any weapons on him,
in the process of reaching into his pocket for his pocketknife, he dropped a
plastic container containing hypodermic needles. Price admitted he had
recently used heroin. Also on his person was one gram of methamphetamine.
When searched, Price’s car contained a one-pot reaction vessel used to
produce methamphetamine, household lye, an instant cold pack, four pairs of
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6 35 P.S. § 780-113(a)(32).
7 75 Pa.C.S. § 3802(d)(1)(i).
8 18 Pa.C.S. § 5104.
9 18 Pa.C.S. § 2701.
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pliers, and eighteen inches of clear tubing. All of these are consistent with the
manufacturing of methamphetamine.
Price made bail on February 2, 2015. He provided his probation officer
a positive urine test for amphetamines on February 13, 2015, and failed to
appear for his bail reporting appointment on February 27, 2015. After an on-
duty police officer observed Price driving to various locations attempting to
buy Claritin-D,10 on March 2, 2015, police executed a search warrant at Price’s
residence, which uncovered that Price had again commenced the operation of
a methamphetamine laboratory. Inside the residence, officers discovered
Claritin-D, Coleman fuel, iodized salt, a drain opener, and instant cool packs,
along with 230 grams of methamphetamine. During the search, Price jumped
out of a window and fled the scene. Others in the house, future co-
defendants, asserted during the search that Price threatened them into buying
various supplies for the production of methamphetamines.
Price entered his second guilty plea to the following: (1) possession of
gas precursors, (2) PWID, (3) operating a methamphetamine laboratory, (4)
risking catastrophe, (5) resisting arrest, and (6) simple assault11 on December
22, 2015. On January 29, 2016, the trial court sentenced him to an aggregate
term of 14 to 32 years’ imprisonment. Price filed post-sentence motions on
February 8, 2016, which the trial court denied. On March 18, 2016, trial
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10Claritin-D is a commonly sought-after drug used in the manufacturing of
methamphetamine.
11 Price’s simple assault charge arose from an altercation with another inmate.
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counsel filed a notice of appeal, request for transcript and application to
proceed in forma pauperis. On July 5, 2016 and September 8, 2016, counsel
sought extensions of time to file an appellate brief. On November 14, 2016,
Price’s appeal was dismissed for failure to file a brief. On May 9, 2017, the
court reinstated Price’s appellate rights nunc pro tunc. Subsequently, Price
filed his notice of appeal and court-ordered Pa.R.A.P. 1925(b) statement of
errors complained of on appeal. He presents the following issues for our
review:
1. Whether the trial court erred and abused its discretion by the
imposition of a clearly unreasonable and manifestly excessive
sentence by sentencing Price to consecutive terms of statutory
maximums, without consideration of relevant sentencing
criteria as set forth in 42 Pa. C.S.A. § 9721(b)?
2. Whether the trial court erred and abused its discretion by the
imposition of consecutive terms of statutory maximum
sentences, which resulted in wholly disparate and recognizably
disproportionate sentences between similarly situated co-
defendants without justification, as each co-defendant received
a deviation below the standard range of the sentencing
guidelines for the same offense?
Appellant’s Brief, at 4 (edited for clarity).
Our standard of review regarding challenges to the discretionary aspects
of sentencing is well-settled:
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 judgement.
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.
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Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015) (citation
omitted).
The right to appeal the discretionary aspects of a sentence is not
absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.
2004). To determine if this Court may review the discretionary aspects of a
sentence, we employ a four-part test, examining: (1) whether the appellant
filed a timely notice of appeal; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify the sentence; (3)
whether the appellant’s brief includes a concise statement of the reasons
relied upon for allowance of appeal with respect to the discretionary aspects
of sentencing pursuant to 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.12 Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.
Super. 2013). An appellant must satisfy all four requirements.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013).
Here, Price filed a timely notice of appeal nunc pro tunc and preserved
his discretionary challenge by way of a post-sentence motion for
reconsideration of sentence. Price also included in his brief a Rule 2119(f)
concise statement of reasons for allowance of appeal. See Brief of Appellant,
at 11-15. Having determined Price has satisfied the necessary procedural
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12 42 Pa.C.S.A. §§ 9701-9799.75.
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dictates, our analysis turns to whether he has raised a substantial question
regarding his sentence.
We determine the existence of a substantial question on a case-by-case
basis. A substantial question exists only when
the appellant advances a colorable argument that the sentencing
judge’s actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing process.
Additionally, we cannot look beyond the statement of questions
presented and the prefatory [Rule] 2119(f) statement to
determine whether a substantial question exists.
Commonwealth v. Diehl, 140 A.3d 33, 34-45 (Pa. Super. 2016) (internal
citations omitted).
Price avers in his Rule 2119(f) statement that the trial court abused its
discretion in sentencing him to an aggregate term of 14 to 32 years’
imprisonment comprised of two consecutive sentences, because that
constituted “an aggregate sentence that was so manifestly excessive as to
constitute too severe a punishment.” Appellant’s Brief, at 14.
It is well settled that defendants who enter guilty pleas may only
challenge the legality of their sentences and validity of their pleas on appeal.
Commonwealth v. Luketic, 162 A.3d 1149, 1159 (Pa. Super. 2017).
However, some defendants retain the right to challenge the discretionary
aspects of their sentence.
A defendant, who enters a guilty plea which does not involve a
plea bargain designating the sentence to be imposed, cannot be
said to have granted the sentencing court carte blanche to impose
a discriminatory, vindictive or excessive sentence so long as the
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legal limits are not exceeded. Obviously, the entry of a guilty plea
does not preclude a petition for allowance of appeal of
discretionary aspects of a sentence subsequently imposed.
Id., quoting Commonwealth v. Dalberto, 648 A.2d 16, 20 (Pa. Super.
1994) (emphasis omitted).
In Price’s Rule 2119(f) statement, he claims, generally, that: (1)
consecutive terms of maximum sentences without regard to his rehabilitative
needs resulted in a manifestly excessive sentence; (2) the trial court failed to
consider his individualized circumstances; (3) the sentencing court imposed a
sentenced in the aggravated range without considering mitigating factors; and
(4) the trial court focused solely on the seriousness of the offense in crafting
his sentence.
Preliminarily, we note, sentences must be “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). In reviewing the record, this Court
must consider the nature of the offense, along with the history and
characteristics of Price; the opportunity of the sentencing court to observe
Price; the findings upon which the sentence was based; and sentencing
guidelines. See 42 Pa.C.S. § 9781(d).
The imposition of consecutive rather than concurrent sentences lies
within the sound discretion of the trial court. Commonwealth v. Johnson,
961 A.2d 877, 880 (Pa. Super. 2008). Further, the court’s discretion in
imposing consecutive rather than concurrent sentences does not raise a
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substantial question regarding the discretionary aspects of sentencing.
Commonwealth v. Mastromarino, 2 A.3d 581, 586 (Pa. Super. 2010).
Rather, “the key to resolving the preliminary substantial question inquiry is
whether the decision to sentence consecutively raises the aggregate sentence
to, what appears on its face to be, an excessive level in light of the criminal
conduct at issue in the case.” Id. at 587; see also Commonwealth v.
Moury, 992 A.2d 162, 171-72 (Pa. Super. 2010) (finding that “[t]he
imposition of consecutive, rather than concurrent, sentences may raise a
substantial question in only the most extreme circumstances, such as where
the aggregate sentence is unduly harsh”). Accordingly, we find Price’s claim
that his aggregate sentence of 14 to 32 years’ imprisonment raises a
substantial question; however, his claim warrants him no relief.
Price’s consecutive sentences are reasonable in light of his prior
convictions, repeated criminal behavior while on bail for the same crimes, and
complete disregard for the community’s safety in running an inherently
dangerous methamphetamine laboratory. The consecutive sentences are not
unduly harsh, and the aggregate sentence imposed was not inappropriate or
contrary to a fundamental norm underlying the Sentencing Code.
Price also argues that this imposition of consecutive statutory
maximums on him was erroneous because his co-defendants’ sentences were
comparatively light. This relates to the individualized nature of sentencing.
See generally Luketic, supra. Price’s argument that his sentence was
disproportionate to his “similarly situated” co-defendants is without merit
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because, in fact, they were not similarly situated. The trial court found Price
to be the “major player” in this instance. N.T. Sentencing Hearing, 1/29/16,
at 28. Further, no other defendant pled guilty to the operation of a
methamphetamine lab and while on bail for that charge established another
laboratory, while testing positive for methamphetamines. To argue the co-
defendants were “similarly situated” is wholly inaccurate.
Moreover, Price’s argument that the trial court sentenced him to
consecutive statutory maximum sentences is also inaccurate. The judge
informed Price in open court, before he signed each of his pleas, of the possible
maximum sentences. In the first matter, post-DUI, the court asked, “do you
understand for all of the offenses put together that a maximum sentence could
be imposed of . . . a rough estimate of thirty-five years?” N.T. Guilty Plea
Hearing, 2/2/15, at 8. Price stated he understood. Id. In the subsequent
case, the court informed Price of the maximum penalties it could impose on
him for PWID, possession of gas precursors, operating a methamphetamine
laboratory, risking catastrophe, and resisting arrest, that, even if imposed
concurrently, would have been a maximum of fifteen years. See N.T.
Sentencing Hearing, 12/22/15, at 9-10. The court asked, “[a]nd do you
understand that I could impose these sentences consecutive to the sentence
you’ve already pled guilty to?” Id. at 11. Price stated he understood. Id.
Thus, while Price received a sentence of 14 to 32 years’ imprisonment, the
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statutory maximum was 50 years. As such, Price’s sentence was within the
sentencing guidelines and did not violate any norms of sentencing.13
Price next argues that the trial court’s sentence failed to account for
Price as an individual and consisted of statutory maximums “without
consideration of relevant sentencing criteria.” Appellant’s Brief, at 16. In so
doing, Price claims, the trial court failed to consider his rehabilitative needs
during sentencing. Id. at 13. First, “[a] claim that a sentencing court ignored
the foregoing mandates and sentenced a defendant without taking into
account his or her character and background . . . raises a substantial question
that the sentence is inappropriate under the Sentencing Code.” Luketic,
supra, at 1162, citing Commonwealth v. Goggins, 748 A.2d 721, 727-28
(Pa. Super. 2000). In addition, a claim that the sentencing court failed to
consider a defendant’s rehabilitative needs also raises a substantial question.
Commonwealth v. Downing, 990 A.2d 788, 793 (Pa. Super. 2010).
Therefore, we proceed with a review of Price’s second issue on the merits.
The trial court considered Price as an individual in its sentencing,
including his rehabilitative needs. The court was equipped with a Presentence
Investigation Report (PSI). As evidenced by the trial court’s statements at
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13 We note that generally, a claim that a defendant’s sentence exceeds the
statutory maximum challenges the legality of the sentence. Commonwealth
v. Robinson, 931 A.2d 15, 21 (Pa. Super. 2007) (“Claims that the sentence
fell ‘outside of the legal parameters prescribed by applicable statute’”
constitute challenges to the legality of a sentence.”). Price’s sentence does
not exceed the statutory maximum, and thus, we need not address whether
his sentence is illegal.
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sentencing, Price’s prior record, two robbery convictions and one burglary
conviction, contributed to his sentence. In addition, Price committed crimes
while he was out on bail after pleading guilty to essentially the same activities.
He also tested positive for methamphetamine while out on bail, and assaulted
another inmate while incarcerated. These factors led to an individualized
sentence for Price; each incident indicated to the trial court that a longer
sentence was necessary. The court stated
[w]hen I have to view the things on the gravity of the offenses,
the rehabilitative needs of the defendant. And . . . the protection
of the public. I mean what really weighs on me here is the
protection of the public [rather] than the gravity of the offenses
. . . I think your choices are reckless. . . . I think your actions
constitute you as [a] danger to the public.
N.T. Sentencing Hearing, 1/29/16, at 33 (emphasis added). Thus, the trial
court’s decision was consistent with the protection of the public, the gravity
of the offenses as they related to the impact on the community, and the
rehabilitative needs of the defendant. See 42 Pa.C.S. § 9721(b). Accordingly,
Price’s arguments that his sentence was not individualized and/or that the trial
court focused only on the seriousness of the offense is without merit.
Accordingly, we find no abuse of discretion.
Judgment of sentence affirmed.
Judgment Entered.
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Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/7/2018
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