Com. v. Jones, D. ( 2020 )

J-S67038-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DURIAN BRANDON JONES :
:
Appellant : No. 611 MDA 2019
Appeal from the Judgment of Sentence Entered March 12, 2019
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0003827-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DURIAN BRANDON JONES :
:
Appellant : No. 612 MDA 2019
Appeal from the Judgment of Sentence Entered March 12, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0000044-2018
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 26, 2020
Appellant, Durian Brandon Jones, appeals1 from the judgment of
sentence entered by the Court of Common Pleas of Dauphin County after he
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* Former Justice specially assigned to the Superior Court.
1As the judgment of sentence in question resolved matters arising from two
docket numbers, Appellant properly filed separate notices of appeal, with each
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pled guilty to charges of possession with the intent to deliver a controlled
substance, delivery of a controlled substance, criminal conspiracy, possession
of drug paraphernalia, DUI, and Vehicle Code summary offenses. Sentenced
to an aggregate term of incarceration of not less than 23 months and not more
than 60 months, Appellant challenges the imposition of consecutive
sentences. We affirm.
The trial court sets forth the pertinent facts and procedural history, as
follows:
The facts under docket 3827-CR-2017 reveal that on June 20,
2017, officers with the Harrisburg police, the vice unit, and agents
from the Office of Attorney General conducted an undercover buy
operation using a confidential informant (CI). The CI went up to
Appellant to buy crack cocaine, then Appellant and the CI met
another person, Israel Griffin, to purchase the drugs. When the
police pulled up, Appellant and Mr. Griffin tried to run, but were
ultimately tackled. Appellant was in possession of the pre-
recorded money and the CI handed over the drugs. N.T., Guilty
Plea/Sentencing Hearing, 3/12/18, at 4-5.
As for docket number 044-CR-2018, on December 12, 2017, a
Harrisburg police officer was dispatched to a car accident at 2:30
a.m. When he arrived at the scene, he found a Ford Focus with
the passenger side crumpled in; it had crashed into a parked tow
truck. Appellant, who had been driving the vehicle, smelled
strongly of alcohol, was swaying back and forth, and could not
stand on his own. He was arrested for suspicion of DUI and taken
to the booking center. On the way there, the officer noticed that
Appellant was attempting to conceal items. Once at the booking
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notice of appeal bearing only one docket number. Subsequently, this Court
consolidated the two appeals by per curiam order. Accordingly, this appeal
conforms with the Pennsylvania Supreme Court’s decision in Commonwealth
v. Walker, 185 A.3d 969 (Pa. 2018) (holding that “where a single order
resolves issues arising on more than one docket, separate notices of appeal
must be filed for each of those cases”).
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center, a search of Appellant revealed 16 individually wrapped
bags of crack cocaine and $168 in U.S. currency. N.T. at 5-6.
....
On March 12, 2018, Appellant entered open guilty pleas [to the
offenses listed above] and was sentenced as follows:
Docket 3827-CR-2017: Count 1 (delivery) -15 to 36 months of
imprisonment; Count 2 (criminal conspiracy) – 15 to 36 months
of imprisonment, concurrent with Count 1; Count 3 (drug
paraphernalia) - $25 fine.
Docket 044-CR-2018: Count 1 (PWID) – 8 to 24 months of
imprisonment; Count 2 (DUI) – 1 to 6 months of imprisonment,
concurrent with Count 1; Count 3 (drug paraphernalia) - $25;
Count 4 (summary): $25 fine and costs; Count 5 (summary) -
$200 fine and costs.
The sentences at dockets 3827-CR-2017 and 044-CR-2018 were
imposed consecutively. The aggregate sentence imposed was 23
months to 60 months of imprisonment.
....
The sentencing hearing record further reflects that Appellant
appeared before [the trial court] on October 11, 2017, on docket
3827-CR-2017; he was incarcerated at that time. On that day it
was agreed that Appellant be placed on an ankle monitor to go
home, as he had children to care for. The Commonwealth
approved, but Deputy District Attorney Ryan Shovlin, Esq. told
him if he “picked up a new charge and messed up that there wasn’t
going to be any deal, that I wasn’t going to be giving him any
leniency, and that I would be revoking his bail. And two months
later he did then pick up this new charge basically involving the
same facts that he’s dealing drugs again.” N.T. at 7.
Prior to sentence, the [trial court] stated the following:
THE COURT: [H]is biggest problem is that once
he was released on bail modification . . . he put
himself in a totally different position. . . . He would
have been better off just staying put. Much better off
staying put. So there’s a couple of ways I could do it
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with a partial concurrence, but no. He had a criminal
act. He did a criminal act, and he’s let out because he
says ‘please let me out.’ And then he goes right back
to the same business. . . . And then he decides to
drive drunk on top of it all, which is like the third form
of bad judgment that he’s shown. . . . Is there
anything, Mr. Jones, you wish to state before I impose
sentence?
THE DEFENDANT: Yeah. I just want to apologize
to the Court and everybody.
THE COURT: Well, you should because, yeah,
you really spit in our eye, so to speak. You really did.
I mean, it was bad enough the charge you had coming
in, and then you just went and – but now you have to
pay for it.
N.T. at 9-10.
....
A post-sentence motion was filed and denied.[] This appeal
followed[.][]
Trial Court Opinion, 7/2/19, at 1-4.
Appellant presents the following question for our review:
Was the imposition of an aggregate sentence of 1 year, 11
months, to 5 years clearly unreasonable, so manifestly excessive
as to constitute an abuse of discretion, and inconsistent with the
protection of the public, the gravity of the offenses, and
[Appellant’s] rehabilitative needs?
Brief for Appellant, at 6.
Appellant’s issue raises a challenge to the discretionary aspects of
sentencing and is not appealable as of right. Commonwealth v. Swope,
123 A.3d 333, 337 (Pa.Super. 2015). Rather, before we can address such a
discretionary challenge, an appellant must satisfy a four-part test:
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(1) whether appellant has filed a timely 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 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.
Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015) (en
banc) (quoting Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.
2011)).
Instantly, Appellant filed a post-sentence motion to modify his sentence
raising his claim, followed by a timely notice of appeal to this Court. He has
also included in his appellate brief a concise statement of reasons relied upon
for allowance of appeal with respect to the discretionary aspects of his
sentence pursuant to Rule 2119(f). We must now determine whether he has
raised a substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
We examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists. See Commonwealth v. Tirado, 870
A.2d 362, 365 (Pa. Super. 2005). “Our inquiry must focus on the reasons for
which the appeal is sought, in contrast to the facts underlying the appeal,
which are necessary only to decide the appeal on the merits.” Id. (citation
and emphasis omitted); see also Pa.R.A.P. 2119(f).
Appellant “must show that there is a substantial question that the
sentence imposed is not appropriate under the Sentencing Code.”
Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) (citation
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omitted). That is, “the sentence violates either a specific provision of the
sentencing scheme set forth in the Sentencing Code or a particular
fundamental norm underlying the sentencing process.” Tirado, 870 A.2d at
365.
In his Rule 2119(f) statement, Appellant contends the imposition of
concurrently-run guideline range sentences within each docket, and then
running the two aggregate sentences from the dockets consecutively to each
other, resulted in a manifestly excessive sentence reflecting a failure to
consider his history and background. A claim that a sentence is manifestly
excessive might raise a substantial question if the appellant’s Rule 2119(f)
statement sufficiently articulates the manner in which the sentence imposed
violates a specific provision of the Sentencing Code or the norms underlying
the sentencing process. Commonwealth v. Mouzon, 812 A.2d 617, 627
(Pa. 2002).
Nevertheless, as a general rule, “[a]n allegation that a sentencing court
‘failed to consider’ or ‘did not adequately consider’ certain factors does not
raise a substantial question that the sentence was inappropriate.”
Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545 (Pa.Super. 1995),
appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996) (quoting Commonwealth
v. Urrutia, 653 A.2d 706, 710 (Pa.Super. 1995), appeal denied, 541 Pa. 625,
661 A.2d 873 (1995)). See also Commonwealth v. Kane, 10 A.3d 327,
335-36 (Pa.Super. 2010) (stating bald claim that sentencing court “failed to
consider” factors set forth in 42 Pa.C.S.A. 9721(b) does not raise substantial
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question). With respect to the imposition of consecutive sentences, “[a]
court's exercise of discretion in imposing a sentence concurrently or
consecutively does not ordinarily raise a substantial question.” Caldwell,
supra at 769 (citing Commonwealth v. Mastromarino, 2 A.3d 581, 587
(Pa. Super. 2010)). However, a “critical distinction [exists] between a bald
excessiveness claim based on imposition of consecutive sentences and an
argument that articulates reasons why consecutive sentences in a particular
case are unreasonable.” Commonwealth v. Dodge, 77 A.3d 1263, 1270
(Pa. Super. 2013). Indeed, the latter case “may raise a substantial question.”
Id. (emphasis in original).
Here, Appellant’s Rule 2119(f) statement articulates no reason why
taking the two standard range, concurrently run aggregate sentences from
each docket and running them consecutively to reflect the existence of two
separate criminal episodes occurring six months apart violates either a specific
provision of the Sentencing Code or a particular fundamental sentencing
norm. It is well settled that a criminal defendant is not entitled to a volume
discount for his crimes by having his sentences run concurrently.
Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa. Super. 1995).
Additionally, in reviewing the statement’s claim of a “manifestly excessive
sentence,” it bears noting that the court elected to run concurrently the
sentences for Appellant’s PWID and DUI crimes he committed while out on
bail.
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Accordingly, viewing the record and Appellant’s Rule 2119(f) statement
in light of governing authority, we conclude Appellant fails to present a
substantial question regarding the court’s decision to run the respective
docket sentences consecutively. Therefore, we decline to address this issue
further.2
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/26/2020
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2 Moreover, to the extent Appellant’s Rule 2119(f) statement asserts “the trial
court focused solely on the need to punish [Appellant] for committing an
offense while on bail from a previous offense,” Appellant’s brief at 15, we note
he raised this argument neither at his sentencing hearing nor in his post-
sentence motion. This particular argument, therefore, is waived. See
Commonwealth v. Griffin, 65 A.3d 932 (Pa.Super. 2013) (explaining
objections to discretionary aspects of sentence are waived if they are not
raised at sentencing hearing or in timely filed post-sentence motion).
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