Com. v. Dale, R.

J-A04027-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RANDALL DALE, :
:
Appellant : No. 3938 EDA 2017
Appeal from the Judgment of Sentence, October 20, 2017,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0005693-2016.
BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS*, J.
MEMORANDUM BY KUNSELMAN, J.: FILED MAY 02, 2019
Randall Dale appeals from his judgment of sentence of 5 to 15 years in
prison and 5 years of probation. Dale raises three challenges to the
discretionary aspects of his sentence. However, because Dale failed to
preserve two of his challenges for our review, and the remaining challenge is
meritless, we affirm.
On October 20, 2017, Dale entered an open guilty plea to burglary,
aggravated assault, conspiracy to commit aggravated assault, and possessing
an instrument of a crime. 1 The court imposed the above aggregate sentence.
Dale filed a timely motion to modify sentence, which the trial court denied
without a hearing on November 6, 2017. This timely appeal follows. Both
Dale and the trial court have complied with Pa.R.A.P. 1925.
____________________________________________
1 18 Pa.C.S.A. §§ 3502, 2702, 903, and 907.
* Retired Senior Judge assigned to the Superior Court.
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On appeal, Dale challenges the discretionary aspects of his sentence,
arguing that the trial court imposed an excessive and unreasonable sentence
in 1) failing to consider the sentencing guidelines; 2) improperly focusing on
the nature of his crime and his prior criminal record, factors the guidelines
already account for, resulting in an improper “double counting, and; (3) failing
to give proper consideration to Dale’s rehabilitative needs. See Dale’s Brief
at 3.
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted).
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, 42. Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation
omitted; brackets in original).
The Commonwealth draws our attention to the test’s second prong.
Commonwealth’s Brief at 10. It contends that Dale failed to raise his first two
appellate issues either in the sentencing proceeding or in his motion to modify
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sentence. Our review of the sentencing transcript and Dale’s motion to modify
supports the Commonwealth’s contention.
Dale first presented his claim that the sentencing court failed to consider
the sentencing guidelines in his concise statement of errors. His second claim,
where he argues the trial court “double counted” certain factors, first appears
in his appellate brief. Thus, because Dale failed to preserve these challenges
at sentencing or in his post-sentence motion, we are unable to review these
claims. See Moury, supra; Pa.R.Crim.P. 720.
Regarding his third issue, Dale timely filed a notice of appeal, preserved
his claim in a post-sentence motion, and included in his brief an appropriate
Pa.R.A.P. 2119(f) statement. We must now determine whether Dale raised a
substantial question that the sentence is inappropriate under the sentencing
code and, if so, review the merits.
A substantial question must be evaluated on a case-by-case basis.
Commonwealth v. Anderson, 830 A.2d 1013, 1018 (Pa. Super. 2003). A
substantial question exists only where an appellant advances a colorable
argument that the sentencing judge's actions were either inconsistent with a
specific provision of the Sentencing Code, or contrary to the fundamental
norms which underlie the sentencing process. Commonwealth v. Sierra,
752 A.2d 910, 913 (Pa. Super. 2000). A claim that a sentence is manifestly
excessive may raise a substantial question if an appellant's Pa.R.A.P. 2119(f)
statement sufficiently articulates the manner in which the sentence was
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inconsistent with the Code or contrary to its norms. Commonwealth v.
Mouzon, 812 A.2d 617, 627–28 (Pa. 2002).
This Court has held that “an excessive sentence claim – in conjunction
with an assertion that the court failed to consider mitigating factors- raises a
substantial question.” Commonwealth v. Cardwell, 117 A.3d 763, 770 (Pa.
Super. 2015). We conclude that Dale’s challenge to the imposition of his
sentence as excessive and unreasonable, together with his claim that the court
failed to consider his rehabilitative needs and mitigating factors upon
fashioning its sentence, presents a substantial question. Thus, we grant his
petition for allowance of appeal and address the merits of his claim.
The following principles apply to our substantive review of Dale’s claim.
“When reviewing sentencing matters, this Court must accord the sentencing
court great weight as it is in the best position to view the defendant’s
character, displays of remorse, defiance or indifference, and the overall effect
and nature of the crime.” Commonwealth v. Ventura, 975 A.2d 1128, 1134
(Pa. Super. 2009). “We cannot re-weigh the sentencing factors and impose
our judgment in the place of the sentencing court.” Commonwealth v.
Macias, 968 A.2d 773, 778 (Pa. Super. 2009). Rather, we review the trial
court’s determination for an 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.
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Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa. Super. 2014).
Moreover, upon appellate review, we are guided by the following
principles:
§ 9781. Appellate review of sentence
***
(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
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 guidelines
and the sentence is unreasonable.
In all other cases the appellate court shall affirm the
sentence imposed by the sentencing court.
42 Pa.C.S.A. § 9781(c).
Here, the trial court sentenced Dale to a term of 3 to 10 years of
imprisonment for burglary, a consecutive term of two to five years of
imprisonment for aggravated assault, a concurrent term of two to five years
of imprisonment for conspiracy, and a consecutive five-year probationary term
for possessing an instrument of crime. As the trial court noted at sentencing,
these sentences were within the applicable guideline ranges. See N.T.,
10/20/17, at 56-57. Thus, in order to vacate Dale’s aggregate sentence, we
must conclude that it is clearly unreasonable.
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Dale argues, “the [trial] court seemed to exclusively focus on the nature
of the offenses, [his] prior criminal history, and what the [trial] court believed
was a lack of true remorse, rather than his rehabilitative needs and mitigating
circumstances.” Dale’s Brief at 18.
A trial court’s sentence “should call for confinement that is consistent
with the protection of the public, the gravity of the offense as it relates to the
impact on the life of the victim and on the community, and the rehabilitative
needs of the defendant.” 42 Pa.C.S.A. § 9721(b). “When imposing sentence,
a court is required to consider the particular circumstances of the offense and
the character of the defendant. In considering these factors, the court should
refer to the defendant’s prior criminal record, age, personal characteristics ad
potential for rehabilitation.” Antidormi, 84 A.3d at 761 (citations and
quotation marks omitted).
Dale’s assertion is belied by the record. First, the sentencing hearing
was conducted after a presentence investigation (“PSI”) and the court’s review
of the PSI. We presume that when the sentencing court reviewed a PSI, that
the court properly considered and weighed all relevant factors in crafting a
defendant’s sentence. See Commonwealth v. Baker, 72 A.3d 652, 663 (Pa.
Super. 2013). Hence, we begin our review with the presumption the
sentencing court here weighed all relevant factors, including mitigating
factors, concerning Dale appropriately.
Further, the transcript from the sentencing hearing reveals the
following. During his allocution, Dale apologized to the court for his crimes
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and acknowledged having a drug problem. Dale spoke of his past efforts to
stay clean, indicating he had not used drugs for a year, aside from methadone.
Dale explained that after his brother died, he relapsed and that he wanted a
county sentence so he could have access to a methadone treatment facility
“to take the drugs away.” N.T., 10/20/17 at 49.
The trial court heard additional mitigating evidence. Specifically, that
Dale had the support of both of his parents and that he attended college. Id.
at 8. Dale’s counsel also highlighted that Dale had served in the Army
Reserves, he gained employment after his discharge, had no juvenile record,
and was treated for mental health issues. However, the court observed that
“despite the fact that [Dale] had a college degree, [he had] been arrested five
times resulting in three convictions, [imprisoned] twice, two violations, both
of which resulting in revocation. One violation pending as a result of the
incident [in this] matter.” Id. at 53.
Before imposing Dale’s sentence, the trial court stated that “[it did not]
think [Dale had] remotely come to grips with or recognized in a truly
remorseful way the level of violence that [he] exercised.” Id. at 50.2 As this
Court has observed, the sentencing court is in the best position to make
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2 The “violence” the trial court refers to occurred when Dale and his sister
attacked and robbed a woman who had allowed Dale to temporarily live with
her. Dale beat the victim, punching her several times and causing her eye to
swell and turn black and blue. He then struck her in the mouth with a blunt
object, possibly a broom handle, causing several of her teeth to fall out. Dale’s
sister held the woman down while holding a knife to her throat.
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determination about an offender’s “character, defiance, and indifference”
when determining the length of a sentence of incarceration. Commonwealth
v. Malovich, 903 A.2d 1247, 1254 (Pa. Super. 2006). Therefore, there is no
basis for us to question the sentencing court’s credibility determination of
Dale.
Contrary to Dale’s assertion, the record reflects the trial court carefully
considered his rehabilitative needs when it imposed his sentence. For
instance, although the court ultimately sentenced him to state time
incarceration, it specifically committed him to the county jail before moving
him to the state prison, so that Dale could be weaned off methadone gradually.
N.T., 10/20/17, at 57-58. The court additionally ordered him to complete a
drug and alcohol evaluation upon transfer to state and to comply with any
recommended treatment. Id. at 58.
Further, the trial court summarized in its opinion,
Despite [Dale’s] argument to the contrary, the guidelines
were considered by this [c]ourt and the [c]ourt took into
account the general standards for sentencing as required by
42 Pa.C.S.A. § 9721(b). This [c]ourt clearly considered the
protection of the public as well as the gravity of the offense
as it relates to the impact on the life of the victim and the
community. Furthermore, this [c]ourt factored into its
decision the rehabilitative needs or prospects of
rehabilitation for [Dale]. As previously stated, this [c]ourt
considered all relevant factors in sentencing [Dale].
Trial Court Opinion, 6/12/18, at 9.
Upon review of the record, we agree with the trial court, and conclude
that Dale has failed to demonstrate that any of his sentences, which fell within
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the applicable guideline ranges, were clearly unreasonable. Thus, we discern
no abuse of discretion in the sentencing court’s decision to impose an
aggregate term of incarceration of 5 to 15 years, followed by 5 years of
probation.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/2/19
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