Com. v. Taylor, S. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
SHAVARYEA TAYLOR :
:
Appellant : No. 3614 EDA 2016
Appeal from the Judgment of Sentence November 26, 2013
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0014476-2011
BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.
MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 29, 2018
Shavaryea Taylor appeals from his judgment of sentence, entered in the
Court of Common Pleas of Philadelphia County, following his conviction for
robbery (F-1),1 conspiracy to commit robbery (F-1),2 firearms not to be carried
without a license (F-3),3 carrying a firearm in public in Philadelphia (M-1),4
and possession of an instrument of crime (M-1) (PIC).5 He challenges the
discretionary aspects of his sentence, claiming his outside-the-guideline
sentence was “far in excess of that which was necessary to protect the public
____________________________________________
1 18 Pa.C.S. § 3701(a)(1)(iii).
2 18 Pa.C.S. § 903(c).
3 18 Pa.C.S. § 6106(a)(1).
4 18 Pa.C.S. § 6108.
5 18 Pa.C.S. § 907(a).
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and [] did not take into consideration [his] rehabilitative needs or potential.”
Appellant’s Supplemental Brief, at 11. We affirm.
On September 6, 2011, Taylor and his three co-conspirators robbed a
pizza deliveryman at gunpoint. The co-conspirators had placed a phone order
to Memo’s Pizza in West Philadelphia and requested food be delivered to a row
home located at 105 Cecil Street. When the delivery man exited his car to
bring the order to the home, Taylor and his co-conspirators approached him
and demanded the food. Taylor took a gun from one of the co-conspirators
and pointed it at the delivery man while another conspirator took
approximately $36.00 worth of food from the victim. At a jury trial, the
Commonwealth presented evidence that Taylor had committed two similar
robberies in August 2011, both involving phoning in food orders and then
robbing the delivery persons at gun point.
Taylor was convicted by a jury of the aforementioned offenses. On
November 26, 2013, the court sentenced Taylor to the Commonwealth’s
recommended sentence of 8-20 years’ imprisonment for the robbery
conviction, with concurrent terms of ten years’ probation on the conspiracy
conviction, a seven-year term of probation for carrying a firearm without a
license, and two terms each of five years’ probation for PIC and the remaining
firearm offense.
On appeal, Taylor presents the following issue for our consideration:
Did the lower court abuse its discretion by fashioning a sentence that
exceeded that which is necessary to protect the public, and that was an
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upward departure from the sentencing gui[]delines where [Taylor] had a “0”
prior record score, and where the lower court disregarded the sentencing
guidelines?” Appellant’s Supplemental Brief, at 4.
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:
(1) whether appellant has timely filed a 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 the appellant’s
brief has a fatal defect [by failing to include 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, 42 Pa.C.S. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (citation
omitted).
Instantly, Taylor was sentenced on November 26, 2013. On October
17, 2016, the trial court reinstated his direct appeal rights nunc pro tunc via
the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546. He filed a timely
notice of appeal on November 16, 2016. Taylor has also preserved his
sentencing issue, having filed a motion for reconsideration, stating that his
outside-the-guideline sentence was excessive. Finally, Taylor includes a Rule
2119(f) statement in his appellate brief.
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A claim that the sentencing court imposed an unreasonable sentence by
sentencing outside the guideline ranges presents a "substantial question" for
our review. Commonwealth v. Hess, 745 A.2d 29, 30 n.3 (Pa. Super.
2000). Thus, Taylor has invoked our jurisdiction to review this issue.
“Our Supreme Court has indicated that if the sentencing court proffers
reasons indicating that its decision to depart from the guidelines is not
unreasonable, we must affirm a sentence that falls outside those guidelines[.]”
Commonwealth v. Mouzon, 828 A.2d 1126, 1128-29 (Pa. Super. 2003)
(citations omitted).
At sentencing the parties agreed, on the record, that Taylor’s prior
record score was a zero and his offense gravity score a ten. N.T. Sentencing
Hearing, 11/26/13, at 5. The parties also noted that Taylor used a deadly
weapon, which would make the guideline range for the offense 40-54 months,
plus or minus 12 months. Id. The Commonwealth asked for a sentence of 8-
20 years’ imprisonment, id. at 7, focusing on Taylor’s extensive criminal
history as a juvenile, id. at 8, and his history of being “defiant, disrespectful,
and violent towards his peers and authority figures.” Id.
Pursuant to 42 Pa.C.S. § 9721, when a court imposes a sentence outside
the sentencing guidelines adopted by the Pennsylvania Commission on
Sentencing, it must provide a contemporaneous written statement of the
reason or reasons for deviation from the guidelines. Commonwealth v. Eby,
784 A.2d 204, 206 (Pa. Super. 2001) (citations omitted). Failure to comply
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is grounds for vacating the sentence and re-sentencing the defendant. Id. A
trial judge who intends to sentence a defendant outside the guidelines must
demonstrate on the record, as a proper starting point, his awareness of the
sentencing guidelines. Having done so, the sentencing court may deviate from
the guidelines, if necessary, to fashion a sentence that takes into account the
protection of the public, the rehabilitative needs of the defendant, and the
gravity of the particular offense as it relates to the impact on the life of the
victim and the community, so long as the court also states of record the factual
basis and specific reasons that compelled it to deviate.
The court justified its sentence in the instant case as follows:
I am going to impose a period of prison in the state correctional
institution because of the seriousness of the offense, because the
offense gravity score does not fully reflect the seriousness of this
offense, and because not only do we have a robbery, but we have
a robbery with conspiracy with a weapon, and the defendant was
found guilty of all those charges, found guilty of robbery,
conspiracy, and three weapons offenses. The D[istrict]
A[ttorney]’s recommendation is a reasonable recommendation
considering the facts of this case, so I will impose a sentence of 8
to 20 years in a state correctional institution.
See N.T. Sentencing Hearing, 11/26/13 at 17.
The fact that Taylor was one of several conspirators who held a gun to
the victim’s head during the robbery greatly influenced the trial judge’s
determination that he needed to deviate upwards from the sentencing
guidelines. Id. at 16 (“Correct me if I’m wrong, but didn’t the complainant in
this case testify that this defendant, Taylor, took the gun and put it against
his head, put it to his head?”). The court also took into account the fact that
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Taylor showed a lack of remorse for his participation in the instant crime,
stating at sentencing that “still today I feel as though I’m innocent.” Id. at
13. Moreover, Judge Cunningham had the benefit of a pre-sentence
investigation (PSI) report and the Probation Department’s sentencing
calculation when he fashioned Taylor’s sentence. Id. at 3-4. As the PSI
indicated, Taylor committed the instant offense only days after his eighteenth
birthday and while he was still on juvenile probation. See Commonwealth
v. Devers, 546 A.2d 12 (Pa. 1988) (where court has benefit of PSI, court
presumed to have been aware of relevant information regarding defendant’s
character and weighed those considerations along with any mitigating
factors). Finally, at sentencing the court demonstrated its awareness of the
relevant sentencing guidelines for Taylor’s offenses. Eby, supra.
Based on the record, we cannot conclude that the Taylor’s sentence is
unreasonable. The trial court proffered sufficient reasons indicating why it
decided to sentence outside the guidelines. Accordingly, we affirm. Smith,
supra.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/29/18
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