Com. v. Elam, S.

J-S24028-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STANLEY ELAM, :
:
Appellant : No. 1555 MDA 2017
Appeal from the Judgment of Sentence, August 10, 2017,
in the Court of Common Pleas of Lancaster County,
Criminal Division at No(s): CP-36-CR-0003940-2016,
CP-36-CR-0003941-2016,
CP-36-CR-0004386-2016.
BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY KUNSELMAN, J.: FILED JUNE 28, 2018
Stanley Elam appeals from the judgment of sentence imposed after a
jury convicted him of with one count of delivery of a controlled substance at
three different dockets.1 After careful review, we affirm.
Elam’s convictions stem from his delivery of heroin to a confidential
informant on three different occasions at three separate locations from
January 2016 to February 2016. On May 3, 2017, a jury convicted him on
these charges. Sentencing was deferred pending the completion of a pre-
sentence investigation ordered by the trial court. On August 10, 2017, Elam
was sentenced to consecutive terms of imprisonment of 15 months to 5 years
on each count, for an aggregate sentence of not less than 45 months nor more
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1 35 Pa. C.S.A. § 780-113(a)(30)
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than 15 years. On August 22, 2017, Elam filed a post sentence motion to
modify sentence which the court denied on September 7, 2017. Elam filed his
notice of appeal on October 6, 2017.
Elam’s appeal challenges the discretionary aspect of his sentence.
“There is no absolute right to appeal when challenging the discretionary aspect
of a sentence.” Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super.
2010). Rather, an appellant must petition for allowance of appeal pursuant
to 42 Pa.C.S.A. § 9781. Commonwealth v. Hanson, 856 A.2d 1254 (Pa.
Super. 2004). When an appellant challenges a discretionary aspect of
sentencing, we must conduct a four-part analysis before we reach the merits
of the Appellant's claim. Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.
Super. 2011). In this analysis, we must determine: (1) whether the present
appeal is timely; (2) whether the issue raised on appeal was properly
preserved; (3) whether Elam filed a statement pursuant to Pa.R.A.P. 2119(f);
and (4) whether Elam has raised a substantial question that his sentence is
not appropriate under the Sentencing Code. Id.Elam filed a timely notice of appeal, and properly preserved his claim in
a post-sentence motion. Additionally, Elam has complied with Pa.R.A.P.
2119(f). See Elam's Brief at 13. We must therefore determine whether Elam
has raised a substantial question for our review.
A substantial question will be found where the defendant advances a
colorable argument that the sentence imposed is either inconsistent with a
specific provision of the Sentencing Code or is contrary to the fundamental
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norms underlying the sentencing process. Commonwealth v. Ventura, 975
A.2d 1128, 1133 (Pa. Super. 2009) (citations omitted). A fundamental norm
in the sentencing process is an individualized sentence for each defendant.
Commonwealth v. Devers, 546 A.2d 12, 13(Pa. 1988). Individualized
sentencing is authorized by the Sentencing Code which requires the
sentencing court to consider public safety, the gravity of the offense in relation
to the impact on the victim and community, and the defendant’s rehabilitative
needs. Commonwealth v. Swope, 123 A.3d 333, 338 (Pa. Super. 2015)
(citing Pa. C.S.A. § 9721). Here, within his 2119(f) statement Elam asserts:
Mr. Elam contends that the trial court’s aggregate
sentence of forty-five (45) [months] to fifteen (15) years of
incarceration constituted a manifest abuse of discretion
because the court impermissibly relied on the seriousness
of the offense and the ongoing heroin crisis in the county in
imposing consecutive sentences.
Elam’s Brief at 13.
Essentially, Elam argues that in sentencing him, the trial court failed to
fashion an individualized sentence, and considered improper factors.
Accordingly, Elam’s claim raises a substantial question. See Commonwealth
v. King, __A.3d__ (Pa. Super. 2018) (finding that appellant’s assertion that
the sentencing court considered improper factors by admitting a potentially
erroneous victim impact statement raised a substantial question).
Our standard of review when analyzing the discretionary aspects of
sentencing is well established:
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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. Booze, 953 A.2d 1263, 1278-79 (Pa. Super. 2008).
Elam contends that the sentencing court “failed to comply with statutory
sentencing norms requiring individualized sentence and [that imposing
consecutive sentences] was a manifest abuse of discretion.” Elam’s Brief at
12. He further argues that the court impermissibly relied on the serious nature
of the crime and the present heroin crisis while ignoring Elam’s unique
characteristics, thereby running afoul of the basic premises of Pennsylvania’s
individualized sentencing. Id. 13-14.
In determining whether the trial court made the proper considerations
during sentencing, we must review the sentencing judge’s comments to
ensure that he afforded “individualized consideration to the character of the
defendant.” Commonwealth v. Ritchey, 779 A.2d 1183, 1187 (Pa. Super.
2001). Before issuing Elam’s sentence, the trial judge commented as follows:
I've gone over the presentence report in detail. I note by
way of summary you're 57 years of age. You're single. You
went through the 11th grade in South Philadelphia High
School.
You report having one son, but you provided no details
to the Probation Department.
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These involve three - these offenses involve three heroin
deliveries on January 19th, 21st and February 16th all in
2016.
You have no reported juvenile record.
You have an adult record for several offenses of receiving
stolen property, conspiracy, criminal intent, is a
misdemeanor in the third degree; violation of the Controlled
Substance Act is a felony, and then there is the subsequent
DUI and drug paraphernalia charge.
You were born in Philadelphia. You have six brothers and
two sisters. Four of your brothers and one sister are now
deceased.
As I noted, you left South Philadelphia High School due
to having to repeat 11th grade, so you went to South
Carolina and you worked on a farm for a year before you
came back to Philadelphia.
Back in Philadelphia you had employment as a carpenter
and as a truck driver. You then came to Lancaster in about
2000.
You were living with a girlfriend prior to your
incarceration in Lancaster County Prison on these charges.
You did not obtain your GED after leaving high school,
nor is there any vocational or further education training.
(At this point the Defendant interrupts to note that he has
sprinkler training)
You report being in good overall general heath. You
report some alcohol and crack cocaine use at 17, as well as
some marijuana use, and describe yourself as a social
drinker.
You have had recent employment as a truck driver and
as a forklift operator, and as Ms. Low indicated this
afternoon, you also had employment installing sprinklers.
You have a fines and costs balance of about $725. It's
a little less than that, but that's approximately what it is.
I've also gone over the charging documents that are
attached to the presentence report. And we have revised
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the sentencing guidelines to accurately reflect your prior
record score.
I've also reviewed the letter that you submitted, and in
addition I did sit through the jury trial.
In addition to the presentence report and the
attachments, I have considered the provisions of the
sentencing code and the sentencing guidelines.
I've considered the circumstances of these offenses, in
that these are three deliveries in a relatively short period of
time.
I've considered the authorized penalties for these
offenses. I've considered the need to protect the
community.
As both your attorney and the prosecuting officer
indicated, and the district attorney referenced, heroin abuse
is a crisis at this point, not only in this country, but in this
county.
I've considered your rehabilitative needs. I have
considered what Ms. Low said on your behalf, the positions
expressed by the Commonwealth, and I've considered what
you have said.
It's obvious that you are an intelligent individual. It's
obvious that you have been able to maintain periods where
you've had productive employment.
It's equally obvious that you have a longstanding criminal
history.
You have been involved in a number of offense, including
one that resulted in incarceration in the state correction
institution.
Anything you say about it being entrapment or not
entrapment, that ship has sailed at this point. As I told you,
that's the final conviction.
There has to be some type of deterrence to make clear
to people that this type of activity is simply not something
that's worthwhile to engage in.
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And for that reason I concur fully with the Commonwealth's
request that these sentences should be consecutive.
This is not a one time situation. In addition, it is clear
looking over your work history that you do not sell to
support your habit out of desperation, nor is there any
indication what you've reported to the Probation
Department that you have any type of active addiction that
you would be at least wiling to disclose.
N.T. 8/10/17 at 11-15.
Elam takes issue with the following two statements made by the trial
court:
As both your attorney and the prosecuting officer indicated,
and the district attorney referenced, heroin abuse is a crisis
at this point, not only in this country, but in this county. Id.
at 17.
There has to be some type of deterrence to make clear to
people that this type of activity is simply not something
that’s worthwhile to engage in. And for that reason I concur
fully with the Commonwealth’s request these sentences
should be consecutive. Id.
Elam claims that these statements demonstrate that the judge imposed
consecutive sentences not based on his personal circumstances, but rather on
“the seriousness of the offense as it relates to the purported heroin and opioid
crisis . . .” Id. at 16. However, Elam ignores all of the other reasons the court
articulated for imposing consecutive sentences.
Here, the sentencing court set forth multiple reasons for imposing
consecutive sentences. The court noted that Elam was convicted of three
separate heroin deliveries; he had a prior record beginning in 1989 which
included drug offenses; he served time in state prison; he demonstrated
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failure to rehabilitate. Further, the record indicated that Elam was involved in
drug dealings of a larger capacity.
Elam relies on this Court’s decision in Commonwealth v. Mola, 838
A.2d 791 (Pa. Super. 2003), where we found the trial court abused its
discretion when it imposed a statutory maximum sentence as a means of
general deterrence to prevent future drug dealing. Elam’s Brief at 18. The
present case, however, is easily distinguishable from Mola. First, unlike in
Mola, the trial court did not impose the statutory maximum sentence, but
instead, set Elam’s sentence at the lowest end of the standard range of the
sentencing guidelines. Elam faced a potential sentence of 90 years’
incarceration under the maximum legal penalty. He had a prior record score
of 4 during his current sentencing, and he had a prior felony drug offense in
2012. Despite these facts, the trial court decided to set the individual
sentences at the lowest end of the standard range of the sentencing
guidelines.
More importantly, in Mola, the sentencing court announced a blanket
policy, whereby it would impose a maximum sentence on all drug delivery
cases to discourage illegal drug trafficking, which this Court found to be a
manifest abuse of discretion. Id. at 794. In Elam’s case, there is no such
indication that the trial court was issuing a predetermined sentence on all drug
related crimes. Instead, the court demonstrated that it considered multiple
factors that were personal to Elam as well as deterrence considerations.
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Elam also relies on our decision in Commonwealth v. Luketic, 162
A.3d 1149 (Pa. Super. 2017) to support his argument. In that case, this Court
vacated the judgment of sentence, finding that the sentencing court failed to
consider individualized factors regarding Luketic. Id. at 1149. In Luketic,
the sentencing court referred to the heroin epidemic as the “modern day
plague.” Elam’s Brief at 19. However, the lynchpin in Luketic, was not the
court’s reference to the community’s drug problem, but rather its pre-
determination of Luketic’s sentence; the court specifically declared that it
would send Luketic to jail before the sentencing hearing even began and
before it received any individualized information about Luketic from the
testimony at the sentencing hearing.2 Id. at 163.
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2 Luketic’s co-defendant, Buckner, was sentenced immediately before Luketic.
Luketic was present at Buckner’s hearing. The judge, referring to Luketic, told
Buckner during his hearing: “He is going to jail, too. He is not walking out of
here either.” Luketic’s counsel expressed that the court favored sending him
to jail, to which the court responded: “I am going to send Luketic to jail. Let’s
not have any equivocation. He is going to jail, they are both opposite sides
of the same coin. That’s why he is going to jail, because he creates the guy
that is with him.” Without hearing evidence pertaining to Luketic, the court
undoubtedly decided his jail sentence.
Despite probation being the standard range sentence, the court made no
indication that it would even consider another sentence after hearing evidence
pertaining to Luketic. Although the court listened to Luketic’s mitigating
factors, it did not properly take them into account.
The court’s 1925(a) opinion clearly showed that it “afforded [Luketic] an
opportunity to argue not so that it could use [Luketic’s] information to craft
an appropriate individualized sentence, but at most, to see if [Luketic] could
rebut the court’s ‘preconceived notion’ of the sentence the court already had
decided to impose. In these circumstances, the sentence was invalid.”
Luketic, 162 A.3d at 1163-4.
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No such predetermination of sentence occurred Elam’s case. Moreover,
the sentencing court’s mention of the opioid crisis was legally proper. When
fashioning a sentence, the court must follow principles that are consistent with
public protection and the impact the crime has on the community. 42
Pa.C.S.A. § 9721(b). Additionally, our Supreme Court has held that it is
appropriate for sentencing courts to consider the effects on the community
from illegal drug distribution and that the courts are afforded flexibility in
evaluating the real world effects of the offense when crafting the sentence.
Commonwealth v. Ali, 149 A.3d 29, 38 (Pa. 2016).
In addition to accounting for community impact, the court must consider
individualized aspects as well, to ensure a “measured approach” during
sentencing. Id. at 39. There is a presumption that when a presentence report
exists, the sentencing court was aware of its contents and weighed those
considerations, which are relevant to the defendant’s character appropriately.
Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545-46 (Pa. Super. 1997).
Here, the trial court postponed sentencing after Elam’s conviction in order to
procure a pre-sentence report, and noted that it considered the report during
sentencing.
Our careful review of the record convinces us that the trial court did not
abuse its discretion in fashioning Elam’s sentence. The court properly
considered public safety, community impact, and Elam’s individual
characteristics. Most notably, the court made a thorough statement before
imposing Elam’s sentence which included an extensive account of Elam’s
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personal background, such as his age, family history, education, lack of a
juvenile record, work history, productive employment history, vocational
training, limited drug/alcohol use, overall good health, and intelligence. It is
evident to us that the sentencing court engaged in a meaningful weighing of
all the sentencing factors, and that Elam is merely displeased with the weight
the court gave the mitigating factors.
For the foregoing reasons, we affirm Elam’s judgment of sentence.
Judgement of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/28/2018
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