Com. v. Guy, K.

J-S69038-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEVIN GUY,
Appellant No. 787 EDA 2015
Appeal from the Judgment of Sentence of March 4, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0003258-2011
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 21, 2015
Appellant, Kevin Guy, appeals from the March 4, 2015 aggregate
judgment of sentence of eight to 20 years of incarceration, imposed after a
jury convicted him of one count of delivery of a controlled substance, one
count of possession of a controlled substance with intent to deliver, and two
counts of possessing drug paraphernalia.1 After careful review, we affirm.
The trial court detailed the factual and procedural background of this
case as follows:
On May 8, 2012, at the conclusion of a two-day trial,
a jury found [Appellant] guilty of delivery of cocaine
(Count 3), possession with intent to deliver cocaine
(Count 4) and two counts of drug paraphernalia
(Counts 7 and 8). The offenses stemmed from a
controlled buy of cocaine [Appellant] made on March
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35 P.S. §§ 780-113(a)(30) and (32).
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21, 2011, as well as cocaine and paraphernalia found
on [Appellant’s] person at the time of his arrest on
April 13, 2011.
At trial, the Commonwealth presented the testimony
of Corporal Edward Kropp, Sr. of the Pottstown
Borough Police Department. Corporal Kropp stated
that a controlled buy was arranged between
[Appellant] and a confidential informant (“CI”) for
the evening of March 21, 2011, which ultimately
occurred in the vicinity of the intersection of Beech
and Evans Streets in Pottstown. The controlled buy
was witnessed by Officer Michael Long. (N.T.
5/7/12, pp. 126-134).
Corporal Kropp and Officer Long testified in detail
about the specifics of the controlled buy, during
which they witnessed [Appellant] meeting and
walking with the CI. Officer Long identified
[Appellant] based upon his prior encounters with
him. Officer Long observed [Appellant] reach into
his pocket and appear to hand a small item to the
CI. The CI returned to Corporal Kropp with a baggie
containing a white substance believed to be cocaine.
At trial, the parties stipulated that the substance
Corporal Kropp retrieved from the CI was .14 grams
of cocaine. (N.T. 5/8/12, pp. 7-18, 22, 94-106).
Corporal Kropp arrested [Appellant] on April 13,
2011, for the above-described delivery of a
controlled substance. In conducting a search
incident to arrest, Corporal Kropp discovered, in the
right pocket of [Appellant’s] cargo pants, a sandwich
bag containing eighteen smaller clear baggies, each
holding a white substance that appeared to be
cocaine. At trial, the parties stipulated that this
substance was cocaine and amounted to 3.45 grams.
(Id. at 23, 27-28).
Detective James Vinter of the Montgomery County
Detectives Bureau, Narcotic Enforcement Team, was
qualified as an expert in the field of narcotics.
Detective Vinter testified, with a reasonable degree
of certainty based on his experience and expertise,
that [Appellant] possessed with the intent to deliver
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the 18 baggies of cocaine seized at the time of his
arrest. (Id. at 169-178).
The conviction on Count 3 had a standard range of
twenty-one to twenty-seven months, with an
aggravated range of thirty-three months. [Under
the then-applicable mandatory minimum sentencing
provision, i]t also carried a two-year mandatory
minimum sentence based on the sale occurring
within 1,000 feet of a school zone. The conviction on
Count 4 had a standard range of twenty-four to
thirty months, with an aggravated range of thirty-six
months. [Again, under the then-applicable
mandatory minimum sentencing provision, i]t carried
a three-year mandatory minimum sentence based on
the weight of the cocaine and [Appellant’s] prior
possession with intent to deliver convictions.
At [Appellant’s] original sentencing hearing on
November 2, 2012, he did not contest application of
the mandatory minimum on Count 4, but evidence
was taken on the issue of the school-zone mandatory
minimum. Officer Michael Breslin of the Pottstown
Borough Police Department testified credibly at the
hearing that the March 21, 2011 drug transaction
with the CI took place less than 1,000 feet from a
Montgomery County Head Start school and the
Begley Hall of Saint Aloysius Parish School.
Th[e trial] court sentenced [Appellant] to five to
fifteen years on Count 3, and three to fifteen years
on Count 4. No penalty was imposed on the
paraphernalia convictions at Counts 7 and 8.
Th[is] Court affirmed [Appellant’s] judgment of
sentence on direct appeal. Commonwealth v. Guy,
3169 EDA 2012 (Pa. Super. Sept. 4, 2013). Our
Supreme Court denied [Appellant’s] petition for
allowance of appeal on March 25, 2014.
Commonwealth v. Guy, 758 MAL 2013 (Pa. Mar.
25, 2014).
On August 26, 2014, [Appellant], through counsel,
filed a motion to modify sentence based on Alleyne,
which had been decided during the pendency of his
direct appeal. Th[e trial] court treated the motion as
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a timely petition under the Post-Conviction Relief Act
and, with no opposition from the Commonwealth,
scheduled the matter for a new sentencing hearing.
On December 2, 2014, th[e trial] court vacated
[Appellant’s] original sentence and, in an exercise of
discretion, imposed the same aggregate term of
incarceration as previously announced. [Appellant]
timely filed a motion for reconsideration/modification
of sentence.
In order to make clear that no mandatory minimum
sentences were being applied, th[e trial] court
convened another hearing on March 4, 2015. Th[e
trial] court ultimately vacated the sentence imposed
on December 2, 2014, and re-sentenced [Appellant]
to five to ten years in prison on Count 3, followed by
a consecutive term of imprisonment of three to ten
years on Count 4.
[Appellant] filed a timely post-sentence motion,
which th[e trial] court denied by Order dated March
11, 2015, and subsequently complied with th[e trial]
court’s directive that he produce a concise statement
of errors in accordance with Pennsylvania Rule of
Appellate Procedure 1925(b).
Trial Court Opinion, 5/15/15, at 1-4 (footnote omitted).
On appeal, Appellant presents a single issue for our review:
WHETHER THE EIGHT[-] TO TWENTY[-]YEAR[]
SENTENCE OF TOTAL CONFINEMENT IMPOSED BY
THE TRIAL COURT … WITH RESPECT TO
[APPELLANT’S] CONVICTIONS FOR VIOLATING THE
DRUG DEVICE AND COSMETIC ACT IS UNDULY
HARSH, TOO SEVERE A PUNISHMENT FOR HIS
PARTICULAR OFFENCE [sic], AND IN EXCESS OF
WHAT IS NECESSARY FOR THE PROTECTION OF THE
PUBLIC AND THEREFORE AN ABUSE OF
DISCRETION[?]
Appellant’s Brief at 8.
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Appellant’s argument pertains to the discretionary aspects of his
sentence. Accordingly, we consider such an argument to be a petition for
permission to appeal. Commonwealth v. Buterbaugh, 91 A.3d 1247,
1265 (Pa. Super. 2014) (en banc) (citation omitted), appeal denied, 104
A.3d 1 (Pa. 2014). Prior to reaching the merits of a discretionary aspects of
sentencing issue, we conduct a four-part analysis to determine whether a
petition for permission to appeal should be granted. Commonwealth v.
Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014) (citation omitted), appeal
denied, 99 A.3d 925 (Pa. 2014). Specifically, we must determine:
(1) [W]hether appellant has filed a timely notice of
appeal, Pa.R.A.P. 902, 903; (2) whether the issue
was properly preserved at sentencing or in a motion
to reconsider and modify sentence, 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).
Id.
As noted above, Appellant filed a timely post-sentence motion and
notice of appeal. He also included a Rule 2119(f) statement in his brief.
See Appellant’s Brief at 13-19. We therefore proceed to determine whether
Appellant raised a substantial question for our review.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Edwards, 71 A.3d
323, 330 (Pa. Super. 2013) (citations omitted), appeal denied, 81 A.3d 75-5-
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(Pa. 2013). “A substantial question exists only when the appellant advances
a colorable argument that the sentencing judge’s actions were either: (1)
inconsistent with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.” Id.(citations omitted). “Additionally, we cannot look beyond the statement of
questions presented and the prefatory 2119(f) statement to determine
whether a substantial question exists.” Commonwealth v. Provenzano,
50 A.3d 148, 154 (Pa. Super. 2012).
Within his petition for allowance of appeal, Appellant contends that the
trial court erred by imposing an excessive sentence “outside the pertinent
Guideline ranges citing reasons already considered, thereby implicating the
discretionary aspects of his sentence in that the trial court sentenced him to
the same sentence he previously received even though the mandatory
minimum sentencing provision of the Drug Device and Cosmetic Act no
longer applied to his case and the Guidelines should therefore have
prevailed.” Appellant’s Brief at 15. Based on this contention, we conclude
that Appellant has raised a substantial question. See Commonwealth v.
Hanson, 856 A.2d 1254, 1257 (Pa. Super. 2004) (Under 42 Pa.C.S.A.
§ 9781(c)(3), a claim that “the sentencing court sentenced outside the
sentencing guidelines,” presents a substantial question.).
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Although Appellant has successfully sought review of the merits of his
sentencing claim, our review of the record as a whole belies Appellant’s
assertion of trial court error.
Our standard of review of a challenge to the discretionary aspects of
sentence is well-settled:
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.
In every case in which the court imposes a sentence
for a felony or a misdemeanor, the court shall make
as a part of the record, and disclose in open court at
the time of sentencing, a statement of the reason or
reasons for the sentence imposed. The sentencing
guidelines are not mandatory, and sentencing courts
retain broad discretion in sentencing matters, and
therefore, may sentence defendants outside the
[g]uidelines. In every case where the court imposes
a sentence ... outside the guidelines adopted by the
Pennsylvania Commission on Sentencing ... the court
shall provide a contemporaneous written statement
of the reason or reasons for the deviation from the
guidelines. However, this requirement is satisfied
when the judge states his reasons for the sentence
on the record and in the defendant's presence.
Consequently, all that a trial court must do to comply
with the above procedural requirements is to state
adequate reasons for the imposition of sentence on
the record in open court.
When imposing sentence, a court is required to
consider the particular circumstances of the offense
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and the character of the defendant. In considering
these factors, the court should refer to the
defendant's prior criminal record, age, personal
characteristics and potential for rehabilitation.
Where pre-sentence reports exist, we shall ...
presume that the sentencing judge was aware of
relevant information regarding the defendant's
character and weighed those considerations along
with mitigating statutory factors. A pre-sentence
report constitutes the record and speaks for itself.
Commonwealth v. Antidormi, 84 A.3d 736, 760-761 (Pa. Super. 2014)
(internal citations and quotations omitted).
At Appellant’s sentencing hearing, the trial court expressly explained,
“And just so there is no confusion and I clarify this once and for all, that the
guidelines are not being applied, I have decided to re-sentence [Appellant]
from the 12/2/14 sentencing.” N.T., 3/4/15, at 2. The trial court continued,
“The [trial c]ourt makes the [pre-sentence report] part of the record. And
once again, I will state the mandatory sentences will not be applied in this
matter.” Id. at 3. The trial court then reviewed letters submitted by
Appellant from his daughter. Id. at 4.
Thereafter, Appellant’s counsel advocated for a sentence within the
guidelines, and the Commonwealth, after summarizing Appellant’s
“substantial prior score” and criminal history, requested “a substantial
sentence, much like one that Your Honor has already handed down in this
case.” Id. at 6, 7-8.
The trial court then explained its sentencing rationale to Appellant, on
the record, as follows:
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[T]he [trial c]ourt has considered the guidelines, PPI,
PSI, and I have considered your age, the information
about yourself that has been presented. I have
considered, as I said, the PSI and the evidence and
circumstances of this offense.
The facts as to your personal background and
circumstances are not in dispute, except as noted.
And this has been established by a verdict of guilty
after a jury trial.
After considering these factors, the [trial c]ourt feels
there is an undue risk that during the period of
probation or partial confinement you will commit
another crime, you are in need of correctional
treatment that can be provided most effectively by
your commitment to an institution. A lesser
sentence would depreciate the seriousness of your
crime.
I, therefore, will sentence you to total confinement,
which the [trial c]ourt feels is proper in this
circumstance.
Id. at 13-14.
The trial court added that it was incorporating the notes of testimony
from the November 12, 2012 sentencing hearing “where the [trial c]ourt
presents the reasons why I have sentenced [Appellant] in the aggravated
range,” and expressed:
The [trial c]ourt further notes that [Appellant] shows
no remorse or appreciation of his conduct in this
matter. The [trial c]ourt also takes note of the fact
that the location where the drugs were found, that
was a school zone; and the fact that when
[Appellant] was arrested only just one month later,
he was found in possession of cocaine.
Id. at 15.
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In addition to the above reasoning, the trial court referenced
applicable legal authority supporting its sentence, stating:
Where, as here, the sentencing court had the benefit
of a presentence investigation report, it is assumed
to have been “aware of relevant information
regarding the defendant’s character and [to have]
weighed those considerations along with mitigating
statutory factors.” [Antidormi, 84 A.3d at 761]
(quoting Commonwealth v. Devers, 536 A.2d 12,
18 (Pa. 1988)). Although the sentencing guidelines
are not mandatory, a court that imposes a sentence
outside the guidelines is required to place its reasons
for doing so on the record. [Antidormi, 84 A.3d at
760]. In addition to sentencing a defendant outside
the guidelines, the court also has the discretion to
impose sentences consecutively.
Trial Court Opinion, 5/15/15, at 6.
Based on the foregoing, we discern no abuse of discretion by the trial
court. Here, the record establishes that the trial court carefully considered
all of the factors relevant to sentencing and imposed an individualized
punishment tailored to the facts of this case, including (in the trial court’s
well-supported view) Appellant’s significant need for rehabilitative
treatment. We therefore affirm the March 4, 2015 judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2015
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