Com. v. Harden, L. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
LASEAN RAYMON HARDEN :
:
Appellant : No. 869 WDA 2019
Appeal from the Judgment of Sentence Entered August 21, 2015
In the Court of Common Pleas of Somerset County Criminal Division
at No(s): CP-56-CR-0000508-2014
BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY McCAFFERY, J.: FILED FEBRUARY 06, 2020
Lasean Raymon Harden (Appellant) appeals from the judgment of
sentence1 entered in the Somerset County Court of Common Pleas, following
the denial of his nunc pro tunc post-sentence motion. Appellant argues the
court abused its discretion when imposing his sentence because the court did
not consider mitigating circumstances. We affirm.
On April 17, 2015, Appellant pleaded guilty to possession with intent to
* Retired Senior Judge assigned to the Superior Court.
1 Appellant purported to appeal from the trial court’s May 13, 2019, order
denying his nunc pro tunc post-sentence motion. However, an order denying
a post-sentence motion “acts to finalize the judgment of sentence for purposes
of appeal. Thus, the appeal is taken from the judgment of sentence, not the
order denying post-sentence motions.” Commonwealth v. Chamberlain,
658 A.2d 395, 397 (Pa. Super. 1995). We have amended the caption to reflect
the appeal is taken from the August 21, 2015 judgment of sentence.
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deliver2 (PWID) heroin, an ungraded felony. On August 21, 2015, the
Honorable Judge John Cascio imposed a sentence of 27 to 60 months’
incarceration, a sentence at the higher end of the standard-range under the
Sentencing Guidelines3.
The ensuing procedural history of this case was “torturous” and set forth
in a prior memorandum by this Court. See Commonwealth v. Harden,
1090 WDA 2017 (unpub. memo. at 1-3) (Pa. Super. Feb. 14, 2018). For ease
of discussion, we summarize that on February 14, 2018, this Court affirmed
the judgment of sentence, based on Appellant’s failure to preserve his
discretionary aspect of sentencing issue for appeal by not raising it in his post-
sentence motion and not including a Pa.R.A.P. 2119(f) statement in his brief.
See Pa.R.A.P. 2119(f) (explaining that appellant must set forth in separate
section of brief concise statement of reasons relied upon for allowance of
appeal with respect to discretionary aspects of sentence).
While Appellant’s appeal was pending before this Court, he filed a pro
se Post Conviction Relief Act4 (PCRA) petition on November 15, 2017. The
trial court held this petition in abeyance pending the outcome of Appellant’s
appeal. Following this Court’s disposition, the court appointed counsel on April
16, 2018 to represent Appellant. Appellant filed an amended PCRA petition
2 35 P.S. § 780-113(a)(30).
3 We note Judge Cascio retired from the bench in December 2016 and this
case was reassigned to the Honorable Judge Gregory Geary.
4 42 Pa.C.S. §§ 9541-9546.
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on May 30, 2018, alleging ineffective assistance of counsel. On March 6, 2019
the trial court granted Appellant’s amended PCRA petition and reinstated
Appellant’s post-sentence motion rights nunc pro tunc.
On March 15, 2019 Appellant timely filed the instant post-sentence
motion, arguing: (1) his sentence should be mitigated because he has yet to
have meaningful appellate review; (2) the trial court failed to recognize that
trial counsel had informed him that his sentence would be 27 to 40 months;
and (3) his serious health conditions, cooperation with law enforcement, and
acceptance of responsibility as well as new mitigating factors such as his
successful rehabilitation, compliance with parole, and gainful employment
require a mitigation of the sentence imposed. Appellant’s Post-Trial Motion,
3/15/19 at 2-4.
On May 13, 2019, the trial court denied Appellant’s post-sentence
motion. This timely appeal followed. Appellant complied with the trial court’s
order to file Pa.R.A.P. 1925(b) statement of errors complained of on appeal.
Appellant presents one issue for our review:
Whether the trial court erred in not reconsidering the discretionary
aspects of Appellant’s sentence on post-sentence review?
Appellant’s Brief at 3. Appellant avers that he has yet to have meaningful
appellate review of his sentence. He further contends that his sentence, at
the high end of the standard-range under the Sentencing Guidelines, is
excessive. Appellant also claims that the trial court failed to consider the
mitigating circumstances presented at sentencing, including his serious health
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conditions, cooperation with law enforcement, and acceptance of
responsibility for his criminal acts. Appellant further cites post-sentence
mitigating factors warranting this Court’s review, such as his successful
rehabilitation, parole, full compliance with the terms of his parole, and gainful
employment. Appellant avers he no longer poses a safety concern to society
and is now a productive functioning member of the community.
Appellant challenges the discretionary aspects of his sentence. Such a
claim is not appealable as of right, but “must be considered a petition for
permission to appeal.” Commonwealth v. Best, 120 A.3d 329, 348 (Pa.
Super. 2015) (citation omitted). Before we reach the merits of a discretionary
sentencing issue, this Court must determine:
(1) whether the appeal is timely; (2) whether Appellant preserved
his issue; (3) whether Appellant’s brief includes a concise
statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of sentence; and (4) whether
the concise statement raises a substantial question that the
sentence is appropriate under the sentencing code.
Commonwealth v. Edwards, 71 A.3d 323, 329-30 (Pa. Super. 2013)
(citation omitted).
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. A substantial
question exists “only when the appellant advances a colorable
argument that the sentencing judges’ 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.”
As to what constitutes a substantial question, this Court
does not accept bald assertions of sentencing errors. An appellant
must articulate the reasons the sentencing courts’ actions violated
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the sentencing code.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations
omitted). “An allegation that the sentencing court failed to consider certain
mitigating factors generally does not . . . raise a substantial question.” Id. at
171. Accord Commonwealth v. Wellor, 731 A.2d 152, 155 (Pa. Super.
1999) (stating allegation that sentencing court “failed to consider” or “did not
adequately consider” mitigating factors generally does not raise substantial
question).
Appellant complied with the procedural requirements for this appeal by
filing a timely post-sentence motion and notice of appeal. In his appellate
brief, Appellant includes a statement of reasons relied upon for appeal
pursuant to Pa.R.A.P. 2119(f). See Edwards, 71 A.3d at 329-30; Appellant’s
Brief at 10. However, Appellant’s claim that the trial court did not consider
mitigating factors does not raise a substantial question invoking this Court’s
jurisdiction. See Moury, 992 A.2d at 170.
Moreover, even if Appellant had properly raised a substantial question,
no relief would be due.
[T]he proper standard of review when considering whether to
affirm the sentencing court's determination is an abuse of
discretion. . . . [A]n abuse of discretion is more than a mere error
of judgment; thus, a sentencing court will not have abused its
discretion unless the record discloses that the judgment exercised
was manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will. . . .
Moury, 992 A.2d at 169-70 (citation omitted).
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Where the sentencing court had the benefit of a presentence
investigation report (“PSI”), we can assume the sentencing court
“was aware of relevant information regarding the defendant's
character and weighed those considerations along with mitigating
statutory factors.” Further, where a sentence is within the
standard range of the guidelines, Pennsylvania law views the
sentence as appropriate under the Sentencing Code.
Id at 171 (citations omitted).
“When imposing a sentence, a court is required to consider the
particular circumstances of the offense and the character of the
defendant.” “In particular, the court should refer to the
defendant’s prior criminal record, his age, personal characteristics
and his potential for rehabilitation.”
Id. (citations omitted).
Here, the trial court explained:
The reasons for the sentence included the contents of the
presentence investigation report, that [Appellant] had two prior
felony drug convictions and two additional felony drug convictions
that occurred after the instant offense was committed, and the
offense involved possession of a substantial amount of heroin.
[N.T. Sentencing Hearing, 8/21/15 at 6-7.] The Court further
found that [Appellant] presented a continued threat to the
community, prior rehabilitative measures had proven ineffective,
and granting [Appellant] a lesser sentence would depreciate the
seriousness of his offense.
Trial Ct. Op., 10/5/19 at 1.
We presume that the trial court weighed the information in the PSI
concerning Appellant’s character. See Moury, 992 A.2d at 175. Judge Geary
noted that Judge Cascio considered, but ultimately rejected, Appellant’s
mitigation claims, which included: Appellant’s poor health, cooperation with
law enforcement, and acceptance of responsibility for his actions. Trial Ct.
Op. at 5. Judge Geary explained that he “was loathe to engage in second
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guessing Judge Cascio’s decision, particularly at this late date.” Id.Furthermore, while the court noted that it was “unfortunate” that Appellant
had not had meaningful appellate review of his sentence thus far, it found that
this factor does not implicate any sentencing considerations. Id. at 6. As
Judge Geary aptly noted, Appellant’s assertion of new, post-sentence
“mitigating” factors go to his eligibility for parole, and not any retroactive
reduction of his sentence. See id. Accordingly, Appellant is not entitled to
relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/6/2020
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