Com. v. Gillespie, M. ( 2020 )

J-S28029-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARQUISE CORNELL GILLESPIE :
:
Appellant : No. 1503 MDA 2019
Appeal from the Judgment of Sentence Entered August 1, 2019
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0005481-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARQUISE CORNELL GILLESPIE :
:
Appellant : No. 1614 MDA 2019
Appeal from the Judgment of Sentence Entered August 1, 2019
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0005473-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARQUISE CORNELL GILLESPIE :
:
Appellant : No. 1615 MDA 2019
Appeal from the Judgment of Sentence Entered August 1, 2019
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0005480-2018
BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.
J-S28029-20
MEMORANDUM BY OLSON, J.: FILED JULY 07, 2020
Appellant, Marquise Cornell Gillespie, appeals from the judgment of
sentence entered August 1, 2019, as made final by the denial of his
post-sentence motion on August 16, 2019, following his guilty pleas to three
counts of possession with intent to deliver1 and three counts of criminal use
of a communication facility.2 We affirm.
The facts and procedural history of this case are as follows. In January
2018, on three separate occasions, Appellant delivered heroin to individuals
in Lancaster County, Pennsylvania. N.T. Guilty Plea Hearing, 5/3/19, at *6
(un-paginated). In each transaction, Appellant utilized a cellular telephone to
facilitate the delivery. Id. Thereafter, the Commonwealth filed criminal
charges against Appellant.
On May 3, 2019, Appellant pled guilty to the aforementioned crimes.
The trial court sentenced Appellant on August 1, 2019, following the
completion of a pre-sentence investigation (“PSI”). The trial court issued the
following sentence:
[Appellant] was sentenced to eight [months] to two [] years’
incarceration for each of his six [] counts. While the sentences for
each of the counts within the three [] dockets were ordered to be
served concurrently, the sentences at each docket were ordered
to be served consecutively. The aggregate sentence [was,]
therefore, [two] to six [] years of incarceration.
____________________________________________
1 35 Pa.C.S.A. § 780-113(a)(30).
2 18 Pa.C.S.A. § 7512(a).
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J-S28029-20
Trial Court Opinion, 11/12/19, at 2.
On August 12, 2019, Appellant filed a post-sentence motion requesting
the trial court to reconsider his sentence and “mak[e] the [s]entences on [the
three] dockets . . . concurrent with each other” so that his aggregate sentence
would be 8 months to 2 years’ incarceration. Appellant’s Post-Sentence
Motion, 8/12/19, at 2. The trial court denied Appellant’s motion on August
16, 2019. This timely appeal followed.3
Appellant raises the following issue on appeal:
Whether an aggregate sentence of two to six years[’]
incarceration in a state correctional facility is manifestly excessive
and clearly unreasonable under the circumstances of this case?
Appellant’s Brief at 5.
Herein, Appellant challenges the trial court’s decision to run his
sentences at each docket consecutively, rather than concurrently. Appellant’s
Brief at 10-12. Specifically, Appellant claims that, by doing so, the trial court
imposed an unduly harsh aggregate sentence and failed to consider the
“non[-]violent nature of Appellant’s violations, his non[-]violent criminal
record, and his strong need for drug treatment.” Id. at 10.
____________________________________________
3 Appellant filed separate notices of appeal at each docket on September 13,
2019. See Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). On
September 16, 2019, the trial court entered an order directing Appellant to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b)(1). Appellant timely complied. The trial court issued an
opinion pursuant to Pa.R.A.P. 1925(a) on November 12, 2019. This Court
consolidated Appellant’s appeals on October 29, 2019. Order, 10/29/19; see
also Pa.R.A.P. 513.
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J-S28029-20
Appellant’s issue implicates the discretionary aspects of sentencing. As
this Court previously explained:
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant challenging
the discretionary aspects of his sentence must invoke this Court's
jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (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, 42
Pa.C.S.A. § 9781(b).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (internal
case citations omitted).
Appellant has fulfilled the first, second, and third requirements of the
above-mentioned four-part test. A challenge to the imposition of consecutive
sentences, however, does not usually raise a substantial question. Indeed,
this Court previously explained:
Under 42 Pa.C.S.A. § 9721, the court has discretion to impose
sentences consecutively or concurrently and, ordinarily, a
challenge to this exercise of discretion does not raise a substantial
question. Commonwealth v. Pass, 914 A.2d 442, 446–447 (Pa.
Super. 2006). The 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, considering the nature of the crimes and
the length of imprisonment. Id. (holding challenge to court's
imposition of sentence of six [] to [23] months['] imprisonment
and sentence of one [] year probation running consecutive, did
not present substantial question). Compare [Commonwealth
v. Dodge, 957 A.2d 1198 (Pa. Super. 2008), appeal denied, 980
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A.2d 605 (Pa. 2009)] (holding imposition of consecutive sentences
totaling 58 ½ to 124 years['] imprisonment for [37] counts of
theft-related offenses presented a substantial question because
total sentence was essentially life sentence for [a 42-year-old]
defendant who committed non-violent offenses with limited
financial impact).
Commonwealth v. Moury, 992 A.2d 162, 169 (Pa. Super. 2010)
Following our decision in Dodge, we have made clear that a challenge
to the consecutive nature of standard sentences does not always raise a
substantial question. See Commonwealth v. Gonzalez–Dejesus, 994 A.2d
595, 598 (Pa. Super. 2010) (imposition of consecutive as opposed to
concurrent sentences does not ordinarily raise a substantial question that
justifies allowance of appeal). Instead, we examine such claims on a
case-by-case basis. Id. This Court has determined that “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 598–599. Based upon our review, Appellant's sentence is not
facially excessive in light of his criminal conduct.
Our conclusion is based primarily on the trial court’s imposition of
standard-range sentences following its review of a PSI report. “[W]here the
sentencing court imposed a standard-range sentence with the benefit of a
[PSI] report, we will not consider the sentence excessive.” Commonwealth
v. Corley, 31 A.3d 293, 298 (Pa. Super. 2011) (citation omitted). “In those
circumstances, we can assume the sentencing court was aware of relevant
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information regarding the defendant's character and weighed those
considerations along with mitigating statutory factors.” Id. (citation and
internal quotation omitted). In this case, the trial court had the benefit of a
PSI report before fashioning standard range, consecutive sentences.
Accordingly, based upon all of the foregoing, Appellant has failed to raise
a substantial question and, thus, his petition for review of the discretionary
aspects of his sentence must be denied.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/07/2020
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