Com. v. Love, C.

J-S69036-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CARL DENNIS LOVE, JR.,
Appellant No. 560 EDA 2015
Appeal from the Judgment of Sentence of January 26, 2015
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0004785-2006
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and OLSON, J.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 29, 2015
Appellant, Carl Dennis Love, Jr., appeals from the judgment of
sentence entered on January 26, 2015. We affirm.
We quote the relevant facts as follows:
On July 17, 2007, Appellant pled guilty to possession of a
controlled substance with the intent to deliver and was
sentenced to three (3) years [of] probation. [Appellant] violated
his probation by incurring new charges. Specifically, on March
14, 2013, he was charged in Delaware County with
[m]anufacture, [d]elivery or [p]ossession with [i]ntent to
[m]anufacture or [d]eliver, [i]ntent to [p]ossess [c]ontrolled
[s]ubstance by [p]erson not [r]egistered, [p]ossession of
[m]arijuana, [u]se/[p]ossession of [d]rug [p]araphernalia, and
[c]onspiracy. [Appellant] was sentenced to seven (7) to twenty
(20) years incarceration by the Delaware County Court of
Common Pleas for these charges. On January 26, 2015, th[e
trial] court sentenced [Appellant] to one (1) to two (2) years
incarceration consecutive to the Delaware County [s]entence for
his probation violation.
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[Appellant] filed a [m]otion to [m]odify [s]entence on February
5, 2015[,] which was denied on February 9, 2015. [Appellant]
thereafter appealed his judgment of sentence. [The parties and
the trial court complied with Pa.R.A.P. 1925.]
Trial Court Opinion, 7/2/15, at 1-2.
On appeal, Appellant asks us to review a single question:
Did the sentencing court manifestly abuse its discretion when
the court sentenced [Appellant] to one to two years on a
probation revocation, to be served consecutively to [Appellant’s]
new sentence of seven to 20 years, and violate 42 Pa.C.S.A.
§ 9757 by failing to state the minimum sentence to be served for
all offenses?
Appellant’s Brief at 3.
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
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appropriate under the Sentencing Code, 42 [Pa.C.S.A.] §
9781(b).
Id.
The record reflects that Appellant filed a timely post-sentence motion
and a timely notice of appeal. He also included a Rule 2119(f) statement in
his brief. See Appellant’s Brief at 5. 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(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, “did not justify making [Appellant’s revocation] sentence
consecutive to the very harsh sentence of seven to 20 years imposed by the
Delaware County Court.” Appellant’s Brief at 5. Appellant supports this
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claim by suggesting that, “[t]he sentencing court’s failure to state the
minimum sentence to be served for [all of Appellant’s] offenses, as required
by 42 Pa.C.S.A. § 9757, illustrates the court’s failure to consider the
reasonableness of imposing a consecutive sentence.” Id. at 15. It is well
settled that the imposition of consecutive sentences falls within the
discretionary authority of the sentencing court and that challenges to the
imposition of consecutive sentences do not raise a substantial question.
Commonwealth v. Lloyd, 878 A.2d 867, 873 (Pa. Super. 2005).
However, Appellant alleges an inconsistency with a specific provision of the
Sentencing Code to the extent he asserts noncompliance with 42 Pa.C.S.A.
§ 9757. Thus, we conclude that Appellant has raised a substantial question.
Although Appellant 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
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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 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).
Appellant claims that the court abused its discretion when it imposed a
one- to two-year sentence consecutive to the seven to 20-year sentence
imposed by the Delaware County Court. Appellant suggests that his
punishment is too harsh because of the nature of his offenses and because a
substantial period elapsed between the original offense and the probation
violation for which he was recently sentenced. Appellant repeatedly
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references the length of his Delaware County prison term in leveling his
attack on his revocation sentence.
We have carefully reviewed the submissions of the parties, the opinion
of the trial court, and the certified record. Based upon our review, we are
satisfied that the trial court correctly exercised its discretion in imposing
consecutive sentences given its undisputed finding that Appellant had a long
history of offenses involving the sale and distribution of controlled
substances. See Trial Court Opinion, 7/2/15, at 2. We also conclude that
Appellant’s passing contention with respect to 42 Pa.C.S.A. § 9757 is
unavailing. This Court has previously held that, “Although [42 Pa.C.S.A.
§ 9757] requires the sentencing court, when it imposes consecutive
sentences, to inform the defendant of his total minimum sentence, [the
court’s] failure to do so does not require resentencing.” Commonwealth v.
Bell, 476 A.2d 439, 452 (Pa. Super. 1984).
For each of these reasons, we hold that Appellant is not entitled to
relief. Accordingly, we affirm.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2015
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