Com. v. Charles, C. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
CALVIN TERRELL CHARLES :
:
Appellant : No. 114 MDA 2021
Appeal from the Judgment of Sentence Entered December 17, 2019
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0000936-2018
BEFORE: PANELLA, P.J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY McCAFFERY, J.: FILED: AUGUST 16, 2021
Calvin Terrell Charles (Appellant) appeals from the judgment of
sentence entered in the Lycoming County Court of Common Pleas, following
his conviction of three counts of delivery of a controlled substance/crack-
cocaine1 and related offenses. Appellant challenges the discretionary aspect
of his sentencing, arguing the trial court abused its discretion by imposing the
sentences consecutively, and thereby precluding his eligibility for the State
Motivational Boot Camp Program. We affirm.
The underlying facts leading to this appeal are summarized as follows.
On March 21, 23, and April 2, 2018, Appellant sold crack-cocaine to the same
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* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30).
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confidential informant. Appellant was charged with three counts of delivery
of a controlled substance and related offenses.2 On September 19, 2019,
following a bench trial, Appellant was found guilty of all charges.
On December 17, 2019, the trial court sentenced Appellant to three
terms of 18 to 36’ months for each delivery offense, each to run
consecutively.3 The sentences aggregated to 54 to 108 months, and thus was
Appellant ineligible for the State Motivational Boot Camp program. N.T.
Sentencing, 12/17/19, at 11. During sentencing, the trial court noted
Appellant had “a long history with the criminal justice system and that the
majority of [his] crimes [were] drug related consistent with someone who
makes a living selling drugs.” Id. at 5. The court also “had the benefit of a
pre-sentence investigation report [(PSI)] to fashion [Appellant’s] sentence.”
Id. at 13. In terms of the length of Appellant’s sentence and his eligibility for
boot camp, the trial court stated:
I could really max [out Appellant’s sentence] . . . and give . . . a
much lengthier sentence, but I don’t see any purpose to doing
that. I think the message gets sent with the 54 month minimum
and as a result I don’t think [Appellant is] eligible for the Boot
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2 Appellant was also charged with three counts each of criminal use of a
communication facility, possession of a controlled substance, and possession
with intent to deliver a controlled substance. 18 Pa.C.S. § 7512; 35 P.S.
§ 780-113(a)(16).
3 The trial court also sentenced Appellant to 18 to 36 months for each of the
three counts of criminal use of a communication facility, all to run concurrently
with the sentences imposed for the delivery offenses. Order, 12/17/19, at 1-
2.
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Camp Program nor would I make him eligible for the Boot Camp
Program. I think that . . . sends a different kind of message that
with the fact that this is your third time and I don’t believe is
appropriate in light of these circumstances. . . .
Id. at 11. In addition, the court emphasized Appellant’s prior record score of
5. Id. at 6-7, 9.
Appellant did not initially file a post-sentence motion or appeal following
his sentencing. Appellant filed a pro se Post-Conviction Relief Act (PCRA)4
petition on June 30, 2020. The trial court appointed present counsel, who
filed an amended PCRA petition on September 3, 2020. On September14th,
the trial court reinstated Appellant’s right to file post-sentence motions and a
direct appeal. On September 15th, Appellant filed a motion for
reconsideration of sentence, nunc pro tunc, which the court denied on January
12, 2021.
Following an extension of time due to the COVID-19 pandemic,
Appellant filed a timely appeal, nunc pro tunc, on January 21, 2021. On March
12th, Appellant filed a timely court-ordered Pa.R.A.P. 1925(b) statement. On
March 30th, the trial court filed an opinion .
Appellant presents the following issue for our review:
1. Did the trial court abuse its discretion and inflict an unduly
harsh sentence by imposing three crack cocaine delivery
sentences consecutively, aggregating to 54 to 108 months
incarceration in a State Correctional Institution, and thereby also
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4 42 Pa.C.S. §§ 9541-9546.
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precluding Appellant eligibility for the State Motivational Boot
Camp Program?
Appellant’s Brief at 6.
Appellant avers his sentence is excessive and unreasonable, because his
aggregate sentence “exceeds the three-year minimum sentence requirement
to be eligible for the State Motivational Boot Camp Program.” Appellant’s Brief
at 13. Appellant maintains that his “prior record was accurately factored into
the prior record score, and his specific traumatic childhood history,
characteristics, and rehabilitative needs dictate concurrent sentencing[,] and
more specifically support the wisdom of boot camp eligibility.” Id. at 16.
Finally, Appellant insists “[a] sentence allowing for boot camp participation
would better balance the protection of society, the needs of [Appellant], and
the gravity of the offense.” Id. at 17. We conclude no relief is due.
We note the relevant standard of review for challenges of discretionary
aspects of sentencing:
[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. In more expansive terms, our Court recently
offered: An abuse of discretion may not be found merely because
an appellate court might have reached a different conclusion, but
requires a result of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so as to be clearly
erroneous.
The rationale behind such broad discretion and the concomitantly
deferential standard of appellate review is that the sentencing
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court is in the best position to determine the proper penalty for a
particular offense based upon an evaluation of the individual
circumstances before it.
Commonwealth v. Moury, 992 A.2d 162, 169–70 (Pa. Super. 2010)
(citation omitted).
“Where the sentencing court had the benefit of a presentence
investigation report . . . , we can assume the sentencing court was aware of
relevant information regarding the defendant’s character and weighed those
consideration along with mitigating statutory factors.” Commonwealth v.
Griffin, 65 A.3d 932, 937 (Pa. Super. 2013) (citations and quotation marks
omitted). In addition, a “judge shall have the discretion to exclude a
defendant from [boot camp] eligibility if the judge determines that the
defendant would be inappropriate for placement in a motivational boot camp.”
61 Pa.C.S. § 3904(b).
Before this Court can address a discretionary challenge in sentencing,
an appellant must comply with the following requirements:
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:
(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) (some
citations omitted).
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In determining whether a substantial question exists, this Court has
held:
[A] defendant may raise a substantial question where he receives
consecutive sentences within the guidelines if the case involves
circumstances where the application of the guidelines would be
clearly unreasonable, resulting in an excessive sentence;
however, a bald claim of excessiveness due to the consecutive
nature of a sentence will not raise a substantial question.
Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013) (citation
omitted). Ordinarily, a claim of failure to consider factors, such as
rehabilitative needs, “does not raise a substantial question for our review.”
Commonwealth v. Haynes, 125 A.3d 800, 807 (Pa. Super. 2015) (citation
omitted).
In the present case, following the reinstatement of his direct appeal
rights, Appellant filed a timely notice of appeal. Appellant also preserved his
issues in a post-sentence motion by requesting his sentence be reduced to a
3-year minimum in order to be eligible for the Boot Camp program. See
Appellant’s Motion to Reconsider sentence, Nunc Pro Tunc, 9/15/20, at 2. In
addition, Appellant’s brief includes the required Rule 2119(f) concise
statement of reasons relied upon for appeal. See Appellant’s Brief at 10.
However, Appellant’s claims are that the trial court abused its discretion by
imposing his sentences to run consecutively and thus precluding him from the
State Motivational Boot Camp. See id. at 12, 17. These claims do not raise
a substantial question. See Haynes, 125 A.3d at 807; Dodge, 77 A.3d at
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1270. Accordingly, we do not reach the merits of Appellant’s claim. See
Caldwell, 117 A.3d at 768.
Nevertheless, even if we did reach the merits, no relief is due. Here,
the trial court maintains:
[B]ased upon the type of charges in this case, to sentence
[Appellant] concurrently would be to diminish the seriousness of
the offense. The [c]ourt noted in the record that this was his third
set of charges for this type of offense and to sentence . . .
Appellant to concurrent terms would be to diminish the nature and
seriousness of the crimes and create a lack of deterrent effect that
prior sentences would have had on . . . Appellant’s subsequent
behavior.
Trial Ct. Op., 3/30/21, at 2-3. In addition, the trial court considered that
“Appellant had received two . . . prior sentences to state prison, which
apparently has not deterred his drug dealing behavior. The [c]ourt found that
to make him eligible for Boot Camp would have given him the chance at a
lesser sentence for repeated behaviors and therefore it was not appropriate.”
Id. at 3. Finally, the court noted it considered the PSI during sentencing. Id.
at 4.
Mindful that sentencing is a matter vested in the sound discretion of the
trial court, and finding no showing of manifest abuse, we conclude the trial
court did not abuse its discretion in rendering the current sentence. See
Moury, 992 A.2d at 169–70. Here, the court considered Appellant’s PSI
during sentencing, and noted, on the record, his history of convictions. See
Trial Ct. Op. at 3-4; Griffin, 65 A.3d at 937. In addition, the court explained,
on the record, its reasons for not making Appellant eligible for the Boot Camp
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program. See N.T. Sentencing, 12/17/19, at 11. As such, we conclude the
trial court was within its discretion to impose the sentences to run
consecutively and to preclude boot camp eligibility.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/16/2021
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