Com. v. Gore, A. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ARTUMISE GORE :
:
Appellant : No. 527 EDA 2020
Appeal from the Judgment of Sentence Entered August 21, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001594-2017
BEFORE: LAZARUS, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY NICHOLS, J.: FILED JUNE 1, 2021
Appellant Artumise Gore appeals from his judgment of sentence
imposed after the trial court convicted him of robbery, theft by unlawful
taking, and simple assault.1 Appellant challenges the discretionary aspects of
his sentence. Specifically Appellant argues that (1) his sentence is manifestly
excessive and (2) his sentence is vindictive. We vacate and remand for
resentencing.
A previous panel of this Court summarized the procedural history as
follows:
On July 14, 2017, [Appellant] waived his right to a jury trial by
signing a written colloquy. The case proceeded to a bench trial
before the Honorable Pamela Pryor Dembe. The trial court
convicted [Appellant] of the above offenses and imposed an
aggregate sentence of to 4 to 8 years of incarceration [for robbery
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1 18 Pa.C.S. §§ 3701(a)(1)(iv), 3921(a), and 2701(a), respectively.
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and theft], and 5 consecutive years of probation for simple
assault, graded as a misdemeanor of the first degree.
Commonwealth v. Gore, 1395 EDA 2018, 2019 WL 2070496, at *1 (Pa.
Super. filed May 10, 2019) (unpublished mem.). This Court held that
Appellant’s simple assault conviction was incorrectly graded as a first degree
misdemeanor and should have been graded as a second degree misdemeanor,
therefore, we vacated Appellant’s judgment of sentence and remanded for
resentencing. Id., 2019 WL 2070496, at *2. This Court did not consider
Appellant’s claim that his robbery and simple assault convictions should have
merged; rather we stated that Appellant could present that argument to the
trial court at resentencing. Id.On August 21, 2019, the trial court2 sentenced Appellant to five to ten
years’ incarceration on the robbery count. The trial court held that the theft
by unlawful taking count merged with the robbery count, but that the simple
assault count did not. The trial court imposed no further penalty for the simple
assault count. The trial court also imposed restitution in the amount of
$786.00.
Appellant filed a timely motion for modification and/or reconsideration
of sentence (post-sentence motion) on August 22, 2019. Therein, Appellant
argued that the trial court imposed a manifestly excessive sentence outside
the aggravated guideline range and that the sentence was illegally vindictive
____________________________________________
2 This matter was reassigned to the Honorable Genece E. Brinkley after Judge
Dembe retired. See Trial Ct. Op., 11/16/20, at 2 n.1.
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because it was greater than his previous sentence. 3 An order denying
Appellant’s post-sentence motion by operation of law was entered on January
7, 2020. Appellant filed a timely notice of appeal on February 5, 2020.4
Appellant and the trial court have complied with Pa.R.A.P. 1925.
Appellant raises the following issues for our review, which we summarize
as follows:
1. Did the trial court err when it imposed a manifestly excessive
and unreasonable sentence?
2. Did the trial court err when it imposed a vindictive sentence?
Appellant’s Brief at 2.
Both of Appellant’s claims challenge the discretionary aspects of his
sentence. Appellant’s first issue is that the trial court imposed a manifestly
____________________________________________
3 While Appellant’s post-sentence motion was pending, Appellant filed a pro
se notice of appeal on January 2, 2020. This notice of appeal was docketed
in this Court at 390 EDA 2020. This Court issued a rule to show cause why
the instant appeal should not be quashed as duplicative of the appeal at 390
EDA 2020. Appellant responded and this Court discharged the rule to show
cause. Appellant discontinued the appeal at 390 EDA 2020 on February 24,
2021.
4 As stated above, Appellant filed a timely post-sentence motion on August
22, 2019. See Pa.R.Crim.P. 720(A)(2)(a). However, the trial court did not
rule on the motion until after 120 days elapsed, and the motion was denied
by operation of law on December 22, 2019. See Pa.R.Crim.P. 720(B)(3)(a).
However, the clerk of courts did not enter an order deeming the motion denied
by operation of law until January 7, 2020. See Pa.R.Crim.P. 720(B)(3)(c).
Appellant’s notice of appeal, filed on February 5, 2020, was facially untimely.
See Pa.R.Crim.P. 720(A)(2)(b). However, we will consider the order denying
Appellant’s post-sentence motion entered outside the 120-day period to be a
breakdown in court operations and will not quash the instant appeal. See
Commonwealth v. Patterson, 940 A.2d 493, 499 (Pa. Super. 2007).
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excessive and unreasonable sentence. Appellant’s Brief at 19-24. Appellant
argues that his criminal history and the nature of the offense were adequately
reflected in the guideline range. Id. at 24. Appellant contends that the trial
court erred when it imposed a sentence that was above the aggravated
guideline range. Id. at 21-22, 24. Appellant also claims that there was
considerable mitigation evidence presented at resentencing. Id. at 20-21, 24.
For these reasons, Appellant argues that his sentence is so “manifestly
excessive as to constitute too severe a punishment.” Id. at 24.
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Griffin, 65 A.3d 932,
935 (Pa. Super. 2013) (citations omitted). Before reaching the merits of a
discretionary aspects issue, this Court must conduct a four-part test to
determine:
(1) whether the appeal is timely; (2) whether Appellant preserved
his or her 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. Williams, 198 A.3d 1181, 1186 (Pa. Super. 2018)
(citation and brackets omitted). “To preserve an attack on the discretionary
aspects of sentence, an appellant must raise his issues at sentencing or in a
post-sentence motion. Issues not presented to the sentencing court are
waived and cannot be raised for the first time on appeal.” Commonwealth
v. Malovich, 903 A.2d 1247, 1251 (Pa. Super. 2006) (citations omitted).
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Instantly, as discussed previously, Appellant has timely filed a notice of
appeal, and preserved his issues in his post-sentence motion. See Williams,
198 A.3d at 1186. Additionally, Appellant has included a Rule 2119(f)
statement in his brief. See id. We further conclude that Appellant has raised
substantial questions for our review. See Commonwealth v. Barnes, 167
A.3d 110, 123 (Pa. Super. 2017) (stating “[a]ppellant’s claim that his sentence
on remand was a product of vindictiveness presents a substantial question for
our review”); Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011)
(stating “[a] claim that a sentence is manifestly excessive such that it
constitutes too severe a punishment raises a substantial question” (citation
omitted)); Commonwealth v. Curran, 932 A.2d 103, 105 (Pa. Super. 2007)
(stating “a claim that the sentencing court sentenced outside the sentencing
guidelines presents such a substantial question”). Therefore, we will address
Appellant’s claims.
Our review is governed by the following principles:
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 judgment. 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.
Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citations
omitted and formatting altered).
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Additionally, our review of the discretionary aspects of a sentence is
governed by 42 Pa.C.S. § 9781(c) and (d):
(c) Determination on appeal.—The appellate court shall vacate
the sentence and remand the case to the sentencing court with
instructions if it finds:
(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines
erroneously;
(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly unreasonable;
or
(3) the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.
In all other cases the appellate court shall affirm the sentence
imposed by the sentencing court.
(d) Review of record.—In reviewing the record the appellate
court shall have regard for:
(1) The nature and circumstances of the offense and the
history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(c)-(d).
This Court has further explained
Where . . . a court imposes a sentence outside of the Sentencing
Guidelines, the court must provide, in open court, a
contemporaneous statement of reasons in support of its sentence.
42 Pa.C.S. § 9721(b).
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[A sentencing] judge . . . [must] demonstrate on the record,
as a proper starting point, its awareness of the sentencing
guidelines. Having done so, the sentencing court may
deviate from the guidelines, if necessary, to fashion a
sentence which 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 it
also states of record the factual basis and specific reasons
which compelled it to deviate from the guideline range.
* * *
[W]hen deviating from the sentencing guidelines, a trial
judge must indicate that [s]he understands the suggested
ranges. However, there is no requirement that a sentencing
court must evoke “magic words” in a verbatim recitation of
the guidelines ranges to satisfy this requirement. Our law
is clear that, when imposing a sentence, the trial court has
rendered a proper contemporaneous statement under the
mandate of the Sentencing Code so long as the record
demonstrates with clarity that the court considered the
sentencing guidelines in a rational and systematic way and
made a dispassionate decision to depart from them.
Commonwealth v. Beatty, 227 A.3d 1277, 1287-88 (Pa. Super. 2020)
(some citations omitted and formatting altered).
In Beatty, the trial court stated that it was sentencing the defendant in
the aggravated guideline range, but actually imposed a sentence outside the
guidelines. Id. at 1289-90. The Beatty Court concluded that the record did
“not reflect that the trial court understood that it was sentencing [the
defendant] outside of the guideline ranges at the time of sentencing.” Id. at
1290. This Court observed that although the trial court gave reasons for its
sentence, it did so to support a sentence in the aggravated range and
“[n]owhere did the court indicate that it was in fact sentencing [the defendant]
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outside of the guidelines, nor did it provide a contemporaneous statement of
its reasons for such deviation.” Id. at 1290. Therefore, this Court concluded
that “because the requirements of Section 9721(b) have not been met, we
are required to vacate the judgment of sentence and remand for resentencing
in compliance with the rules.” Id.; see also Commonwealth v. Byrd, 657
A.2d 961 (Pa. Super. 1995) (reversing a sentence outside the guidelines
where the trial court erroneously stated it had imposed an aggravated range
sentence and did not provide reasons to support deviation from the
guidelines).
Here, at the sentencing hearing, the Commonwealth accurately stated
that the standard guideline range was twenty-four to thirty months plus or
minus six months.5 N.T. Sentencing Hr’g, 8/21/19, at 7-8. The trial court
explained the reasons for the sentence as follows:
I’m going to mark the sentencing memo D-1 for sentencing
purposes, and the letter of the victim impact C-1 for sentencing
purposes.
* * *
I received both of these, into the record, for sentencing purposes.
I note that the 7/25/2019 memo from the Pennsylvania
Department of Corrections indicates that [Appellant’s]
recommended treatment plan includes outpatient substance
____________________________________________
5 The Commonwealth misstated the offense gravity score for robbery, 18
Pa.C.S. § 3701(a)(1)(iv), as five. N.T. Sentencing Hr’g at 7. The offense
gravity score for robbery, under that subsection, is seven. 204 Pa. Code §
303.15. However, the guideline range stated on the record at sentencing is
correct for an offense gravity score of seven and a prior record score of five.
204 Pa. Code § 303.16.
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abuse disorder and violence prevention. [Appellant] has not
completed any recommended treatment program. He currently
remains on the waitlist for enrollment into this treatment program.
Even though, back in 2017, Judge Dembe ordered him to complete
anger management, that has not been completed as of yet.
Although, the [Appellant] has worked outside the prison for his
work assignment while in the prison.
In addition, I note that the presentence report on page four -- that
was page three, that was provided to Judge Dembe, also indicated
that [Appellant] was to attend addiction treatment and anger
management counseling as part of their recommendation.
In addition, on page four of that same presentence report, as the
Commonwealth indicated, and the second paragraph, it indicates
that [Appellant] violated his state parole due to his federal
conviction, but the case was allowed to terminate as scheduled.
He’s presently still on federal probation, as the records indicate,
that he did poorly on community supervision and violated nearly
every term of supervision imposed. His violations include
absconding from supervision, not completing court orders, drug
treatment, incurred new arrests while on probation. In all, he has
eight violations, six revocations, and there’s one pending
revocation here in Federal Court. The current matter was a direct
violation of his federal probation.
It is important to note, in the next paragraph it says that
[Appellant’s] criminal history shows he’s been nearly continuously
supervised on probation, parole, or incarcerated, since 1992. In
that time he had only a total of 11 and a half months free from
some form of court supervision or not incarcerated. In short, he
spent nearly all but 11 months in the past 25 years under court
supervision or was incarcerated.
Since then, nothing has changed in his life despite the
implementation of various county, state, and federal programs.
He continues to not be amenable to county or community
supervision.
Problems for [Appellant] include ongoing issues with addictions,
for which he does not realize the magnitude of his addiction until
he is incarcerated. Each time he’s released from custody, he
either absconds or does not remain committed to his program,
remain committed to his treatment program, or his sobriety. It is
not long after each release, he becomes reincarcerated. He still
believes that he’s in control of his addiction and does not need
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treatment. Instead, he blames the victim, his ex[-]girlfriend, for
falsely accusing him of this crime.
He has no sense of remorse or willingness to improve his
circumstance. Given his history of violence, he remains a danger
to others. [Appellant] reportedly has a high school diploma, but
he still lacks marketable skills and consistent employment. He
relies heavily on others to provide housing and other support.
Without them, he’s eventually homeless.
I mean, it goes on. [Appellant] was last released from state prison
on September 21, 2006. State prison shows that he had four
misconducts from the last incarceration. His first misconduct is
dated September 20, 1999, which was for failure to stand count.
He severed 30 days loss of privileges. The second dated March 7,
2001, was for refusal to obey an order and presence in an
unauthorized area. He received 15 days in disciplinary custody.
The third dated August 3, 2001, was for refusal to obey an order.
30 days of loss of privileges. And the last is dated September 1,
2001, was for possessing contraband, including money, and
failure to report the presence of contraband. He received 30 days
in disciplinary custody. His state prison moves and conduct
reports are attached.
So it said based upon his criminal history, [Appellant] is at high
risk of incurring future offenses and violating whatever conditions
imposed by the Court. He has never been able to withdraw
himself from criminal activity or drug use. Any period of
community supervision should include intensive reporting,
frequent urine testing to detect and deter substance abuse.
Positive findings will result in a discipline referal [sic]. He’s
required to attend vocational training to ensure better
employment opportunities. He’s required to find part time
legitime [sic] and verifiable employment, and complete any court
ordered program.
There should be ongoing home visits, to verify his residency,
including check for weapons and drugs as a condition of his
supervision. If restitution is to be imposed, a monthly payment
plan should be ordered, the entire amount is paid by the end of
supervision. Any missed payment should be grounds for violation
-- grounds of a violation hearing. A Stay Away order should be
imposed for the victim. If he’s to be supervised by the County
Probation Department, his supervision should be under the
intensive supervision unit. If he’s to be supervised by the state
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authority, he should involve himself in all programs offered in
state custody, and while on state parole.
Is that’s what that says?
So I can appreciate [Appellant’s] words today, that he’s a changed
person and that he’s showing remorse because he says he wants
to apologize to Michelle. [“]I let the drugs get the best of me.[”]
That is what he said. I wrote it down. And I don’t know whether
two years -- and I don’t know whether [Appellant] actually signed
up for drug treatment, but he hasn’t had the drug treatment or
anger management that Judge Dembe ordered back in 2017.
So I’m going to resentence [Appellant] to five to ten years in state
custody on the robbery charge. I realize that’s one more year on
the front end and back end -- well, she asked for the four to eight.
I’m sentencing him to five to ten. I think the five to ten is
warranted in this particular case, as there was some
question raised on appeal about it being an aggregated
[sic] sentence and Judge Dembe not stating the reason.
Well, I just stated the reason. I read the significant portions
of the presentence report, which indicated [Appellant] continues
to reoffend every time he gets out. I don’t believe his statements
today are genuine. I think that because there was claim [sic] of
no remorse left, this time he figures he shows remorse. I don’t
belive [sic] there’s going to be any difference, given what was
written in the presentence report and by his demonstrated history
of continuing to reoffend as soon as he comes out.
So the reason for the sentence being in the aggregated
assault [sic] range is for what is in the presentence report
and for the words of the victim in her victim impact
statement, where she says, [“]There’s no words to express how
this has impacted my daily existence. I still feel like he’s going to
come after me, even though he is incarcerated. I stop when I
hear a person behind me and wait for them to pass by before I
begin to walk. I don’t go out at night alone. There’s times when
I feel like there’s someone in my home when I get there from
work. I call my family in my home as I walk through the door, to
make sure there’s no one in there. When someone brutally
attacks you, there is no way to know how it will affect you. This
has affected me in a way that is totally out of my character.
Today, I’m more reserved, not willing to meet new people. I am
very guarded and secluded from anyone that is not my family.
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These are just a few of the ways this has changed my life. Physical
scars heal. Emotional scars are very deep.[”]
So I stated on the record the reasons for the aggregated
[sic] sentence. So I’m going to -- the theft charge merges, and
I’m going to impose no further penalty on the simple assault
charge because it would only be a one-to-two-year sentence
anyway and I’m adding the one more year on the robbery charge.
So to me that covers all three counts that he was found guilty on,
by sentencing on the one count of robbery to five to ten years in
state prison.
Obviously, he’ll receive credit for time served. That time will be
calculated by the State Parole Board. I read in the defense’s
memo that he’s supposed to be entitled to some different form of
credit, but the credit is what the State Parole Board calculates.
As conditions of the sentence he’s to complete drug treatment,
mental health treatment, anger management treatment, and job
training. And upon release, seek and maintain employment,
legitimate employment with a paycheck, and undergo random
urine analysis and pay fines and costs at $25 per month. He’s
also ordered to stay away from the victim the entire term of the
sentence, the entire ten years.
Id. at 18-25 (emphases added).
The trial court’s sentence of five to ten years’ incarceration is two years
above the aggravated guideline range. See id. at 7-8 (setting forth the
guideline ranges). Based on our review of the record, we find that while the
trial court gave its reasons for the sentence, it repeatedly stated that it was
sentencing Appellant in the aggravated range of the sentencing guidelines.
See id. at 23-25. At no point during the sentencing hearing did the trial court
indicate that it was aware that it was sentencing Appellant outside the
guidelines. We note that the trial court again stated in its Rule 1925(a) opinion
that it sentenced Appellant “in the aggravated range[.]” Trial Ct. Op. at 9.
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Based on the foregoing, we conclude that the record does not reflect
that the trial court understood that it was sentencing Appellant outside the
aggravated guideline range at the time of sentencing. See Beatty, 227 A.3d
at 1288, 1290. As in Beatty, we are constrained to vacate the judgment of
sentence and remand for resentencing in compliance with Section 9721(b).
See id. at 1290-91; Byrd, 657 A.2d at 964; see also 42 Pa.C.S. § 9781(c)(1)
(requiring that an appellate court vacate a sentence where the trial court
“purported to sentence [the defendant] within the sentencing guidelines but
applied the guidelines erroneously”). “[Our] decision is not meant to be
interpreted as commentary or analysis of the length of the sentence imposed.
[We] note[] only that the trial court must fulfill its duty to provide a
contemporaneous statement of reasons [for] deviating from the guidelines at
the time of imposition of sentence.” Beatty, 227 A.3d at 1290-91.
As we have vacated Appellant’s judgment of sentence for the reasons
stated herein, we need not address Appellant’s remaining claims.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/01/2021
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