Com. v. Baker, A.

J-S54039-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTOINE MAURICE BAKER :
:
Appellant : No. 355 WDA 2017
Appeal from the Judgment of Sentence January 27, 2017
In the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0000557-2015
BEFORE: OTT, MOULTON, and FITZGERALD,*JJ.
MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 30, 2017
Appellant Antoine Maurice Baker appeals from his judgment of
sentence of twenty-four to seventy-two months’ imprisonment for
possession with intent to deliver a controlled substance (“PWID”).1
Appellant’s sole issue on appeal is whether his sentence was excessive
because the trial court disregarded the stipulation in Appellant’s guilty plea
agreement to treat this conviction as his first PWID offense. We affirm.
Appellant was arrested on March 12, 2015 and charged with PWID and
other offenses. On August 17, 2015, Appellant pled guilty to one count of
PWID for possessing 0.33 grams of heroin with intent to deliver. The
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30).
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remaining charges were nol prossed, and the court scheduled sentencing for
October 29, 2015. Appellant failed to appear on that date, and the court
issued a bench warrant for his arrest. On January 17, 2017, Appellant was
arrested on the bench warrant. On January 27, 2017, the court sentenced
Appellant to the aforementioned term of imprisonment. The sentence was
below the standard range of the Sentencing Guidelines. 2 The
Commonwealth waived the Recidivism Risk Reduction Incentive (“RRRI”)
restrictions, and the court entered an RRRI minimum of 18 months.
On February 3, 2017, Appellant filed a post-sentence motion alleging
that the trial court abused its discretion by imposing an excessive sentence.
On February 6, 2017, the court denied Appellant’s motion. Appellant filed a
timely notice of appeal, and both Appellant and the trial court complied with
Pa.R.A.P. 1925.
Appellant raises a single issue in this appeal:
Whether the sentenc[ing] court abused its discretion and
imposed a manifestly excessive and unfairly severe
punishment by imposing a term of incarceration upon []
Appellant, of not less than two (2) years nor more than six
(6) years[’] imprisonment for [his PWID] conviction where
the plea agreement was that [Appellant’s] conviction was
to be treated as a first offense and not as a subsequent
offense.
____________________________________________
2
Appellant’s offense gravity score was six, and his prior record score was
five, making the standard sentencing range twenty-seven to thirty-three
months.
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Appellant’s Brief at 7. In other words, Appellant complains that the trial
court improperly treated Appellant’s conviction as a second PWID offense,
even though his guilty plea agreement required the court to treat it as a first
PWID offense. Appellant is not entitled to relief.
This Court has held:
Challenges to the discretionary aspects of sentencing do
not entitle an appellant to appellate review as of right.
Prior to reaching the merits of a discretionary sentencing
issue:
[W]e 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).
Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing
hearing or raised in a motion to modify the sentence
imposed at that hearing.
Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa. Super. 2006) (some
citations and punctuation omitted). The Rule 2119(f) statement
must specify where the sentence falls in relation to the
sentencing guidelines and what particular provision of the
Code is violated (e.g., the sentence is outside the
guidelines and the court did not offer any reasons either on
the record or in writing, or double-counted factors already
considered). Similarly, the Rule 2119(f) statement must
specify what fundamental norm the sentence violates and
the manner in which it violates that norm . . . .
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Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en
banc). “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. (emphasis in original).
Here, Appellant timely appealed, preserved the issue in his post-
sentence motion and included a Pa.R.A.P. 2119(f) statement in the brief.
See Evans, 901 A.2d at 533. Further, Appellant raises a substantial claim
by arguing that the trial court disregarded the terms of his guilty plea
agreement by sentencing him as a second-time PWID offender. Accordingly,
we examine the merits.
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) (citation
omitted). A sentence may be found unreasonable if it “was imposed without
express or implicit consideration by the sentencing court of the general
standards applicable to sentencing[.]” Commonwealth v. Walls, 926 A.2d
957, 964 (Pa. 2007) (citation omitted). These general standards mandate
that a sentencing court impose a sentence “consistent with the protection of
the public, the gravity of the offense as it relates to the impact on the life of
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the victim and on the community, and the rehabilitative needs of the
defendant.” 42 Pa.C.S. § 9721(b).
The maximum sentence for a first PWID offense involving heroin is
fifteen years’ imprisonment. See 35 P.S. § 780-113(f)(1). In the event of a
second PWID conviction involving heroin, the court may sentence the
defendant up to twice the term for a first offense, or a maximum of thirty
years’ imprisonment. See 35 P.S. § 780-115(a).
The record establishes that Appellant’s sentence was not affected by
the fact that it was his second PWID offense. During sentencing, the
following exchange took place:
THE COURT: Now I’ve got to do some math. Mr. Baker, in
looking at this case, number one, this is a second PWID?
MR. STRAUB [Appellant’s counsel]: Your Honor, as part of
the plea agreement, it was to be sentenced as a first.
THE COURT: But technically it is a second.
MR. STRAUB: Yes, Your Honor.
THE COURT: I won’t go beyond that. You’ve got some
substantial family issues.
N.T., 1/27/17, at 9 (emphasis added). Thus, the court made clear that it
gave no weight to the fact that this was Appellant’s second PWID conviction.
Moreover, the court sentenced Appellant to a minimum below the standard
guideline range for a first PWID offense, see n.1, supra, and his maximum
was far below fifteen years (the maximum for a first PWID offense) and
thirty years (the maximum for a second PWID offense). For these reasons,
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Appellant has no basis for arguing that the court disregarded the terms of
his guilty plea agreement in the course of imposing sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/30/2017
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