Com. v. Breban, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSUE BREBAN,
Appellant No. 239 MDA 2015
Appeal from the Judgment of Sentence entered December 18, 2014,
in the Court of Common Pleas of Dauphin County,
Criminal Division, at No(s): CP-22-CR-0002014-2014
and CP-22-CR-0004812-2014
BEFORE: BENDER, P.J.E., ALLEN, and OLSON, JJ.
MEMORANDUM BY ALLEN, J.: FILED AUGUST 20, 2015
Josue Breban (“Appellant”) appeals from the judgment of sentence
imposed after he pled guilty to one count of burglary and one count of retail
theft.1
The pertinent facts and procedural history are as follows:
Docket No. 2014 CR 2014: On March 17, 2014, Appellant and two
co-conspirators entered a house located at 2312 Brookwood Street in
Harrisburg, and took numerous items including a 9 mm pistol, jewelry,
passports, birth certificates, a safe, a checkbook and a bankcard. N.T.,
10/7/14, at 4. A subsequent police investigation yielded fingerprints which
were run through the Pennsylvania Automated Fingerprint Identification
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18 Pa.C.S.A. §§ 3502(a)(2) and 3929(a).
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System and found to match Appellant’s. Affidavit of Probable Cause,
3/27/14. Appellant was subsequently arrested, and on October 7, 2014, he
entered an open plea of guilty to burglary.
Docket No. 4812-2014: On June 30, 2014, Appellant and Kelly
Bauman entered Giant Foods, and acting jointly, stole $166.69 worth of
meat, poultry, and seafood. N.T., 12/18/14, at 3. Appellant was
subsequently arrested and charged with retail theft. On December 18,
2014, Appellant entered an open plea of guilty to retail theft.
That same day, on December 18, 2014, a sentencing hearing
commenced at both docket numbers. The trial court sentenced Appellant to
a term of imprisonment of 2½ to 5 years for burglary, and a consecutive 2
years of state supervision for retail theft. Appellant filed a post-sentence
motion on December 23, 2014, which the trial court denied on January 5,
2015. This appeal followed.
On February 5, 2014, the trial court directed Appellant to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). Appellant complied and on March 2, 2015, the trial court filed a
memorandum opinion in which it stated that its January 5, 2015 order
adequately addressed the allegations of error raised by Appellant.
On appeal, Appellant presents one issue for our review:
I. Whether the trial court erred in denying Appellant’s Post-
Sentence Motion for Modification of Sentence where
Appellant’s sentence was excessive and unreasonable in light
of the alleged gravity of the offense, the protection of the
public, and Appellant’s rehabilitative needs and where the
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punitive measures inherent in the sentencing scheme could
have been accomplished by the imposition of a lesser
sentence?
Appellant’s Brief at 5.
Appellant’s sole issue on appeal is that the trial court abused its
sentencing discretion when it imposed a sentence of 2½ to 5 years for
burglary.
To reach the merits of a discretionary sentencing issue, we
conduct a four-part analysis to determine: (1) whether
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. [708]; (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. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).
Appellant has preserved his claim by filing a timely post-sentence
motion and notice of appeal. Additionally Appellant has included in his brief
a concise statement pursuant to Pa.R.A.P. 2119(f). Appellant’s Brief at 9-
12. Therefore, we proceed to determine whether Appellant has raised a
substantial question for our review.
Appellant argues that the trial court abused its discretion when it
imposed a sentence that “was excessive and unreasonable and constitutes
too severe a punishment”, id. at 9, 15, and which was beyond the
aggravated range of the sentencing guidelines, and in so doing, the trial
court failed to give proper consideration to the appropriate sentencing
factors and failed to state on the record the reasons for the sentence. Id.
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at 9-17. Such claims raise a substantial question for our review. See
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014)
quoting Commonwealth v. Dodge, 77 A.3d 1263, 1272, n.8 (Pa. Super.
2013) (“[A]rguments that the sentencing court failed to consider the factors
proffered in 42 Pa.C.S. § 9721 does present a substantial question, whereas
a statement that the court failed to consider facts of record, though
necessarily encompassing the factors of § 9721, has been rejected.”);
Commonwealth v. Eby, 784 A.2d 204, 206 (Pa. Super. 2001) (“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 code or is contrary to the fundamental norms which
underlie the sentencing process. A claim that the sentencing court imposed
an unreasonable sentence by sentencing outside the guideline ranges
presents a ‘substantial question’ for our review.”); Commonwealth v.
Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003) (en banc) (a substantial
question is raised where an appellant alleges that the sentencing court
erred by imposing an aggravated range sentence without consideration of
mitigating circumstances). We therefore proceed to review Appellant’s
claim.
“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.” Commonwealth v. Garcia-Rivera, 983
A.2d 777, 780 (Pa. Super. 2009).
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More specifically, 42 Pa.C.S.A. § 9721(b) offers the following
guidance to the trial court's sentencing determination:
[T]he sentence imposed 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.
***
The ... weighing of factors under 42 Pa.C.S. § 9721(b) [is]
exclusively for the sentencing court, and an appellate court
could not substitute its own weighing of those factors. The
primary consideration, therefore, is whether the court imposed
an individualized sentence, and whether the sentence was
nonetheless unreasonable for sentences falling outside the
guidelines, or clearly unreasonable for sentences falling within
the guidelines, pursuant to 42 Pa.C.S. § 9781(c).
Commonwealth v. Bricker, 41 A.3d 872, 875-876 (Pa. Super. 2012)
(citations omitted).
Section 9781(c) specifically defines three instances in which the
appellate courts should vacate a sentence and remand: (1) the sentencing
court applied the guidelines erroneously; (2) the sentence falls within the
guidelines, but is “clearly unreasonable” based on the circumstances of the
case; and (3) the sentence falls outside of the guidelines and is
“unreasonable.” 42 Pa.C.S. § 9781(c). Id. at 876 .
“[T]he term ‘unreasonable’ generally means a decision that is either
irrational or not guided by sound judgment. [A] sentence can be defined as
unreasonable either upon review of the four elements contained in §
9781(d) or if the sentencing court failed to take into account the factors
outlined in 42 Pa.C.S.A. § 9721(b).” Commonwealth v. Daniel, 30 A.3d
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494, 497 (Pa. Super. 2011), quoting Commonwealth v. Walls, 926 A.2d
957 (Pa. 2007). However, “rejection of a sentencing court's imposition of
sentence on unreasonableness grounds [should] occur infrequently,
whether the sentence is above or below the guidelines ranges.”
Commonwealth v. Macias, 968 A.2d 773, 777 (Pa. Super. 2009) quoting
Walls, 926 A.2d at 964.
Pursuant to 42 Pa.C.S.A. § 9871, an appellate court must have regard
for the following statutory factors in our review of the certified record: (1)
the nature and circumstances of the offense and the history and
characteristics of the defendant, (2) the opportunity of the sentencing court
to observe the defendant, including any presentence investigation, (3) the
findings upon which the sentence was based, and (4) the guidelines
promulgated by the commission. 42 Pa.C.S.A. § 9871(d)(1)-(4).
“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. 42 Pa.C.S.A. § 9721(b).
However, [t]his requirement is satisfied when the judge states his reasons
for the sentence on the record and in the defendant's presence ... in open
court.” Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa. Super.
2014).
[Section 9721(b)] requires a trial judge who intends to sentence
a defendant outside the guidelines to demonstrate on the
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record, as a proper starting point, his awareness of the
sentencing guidelines. Having done so, the sentencing court
may deviate from the guidelines, if necessary, to fashion a
sentence which takes into account the protection of the public,
the rehabilitative needs of the defendant, and the gravity of the
particular offense as it relates to the impact on the life of the
victim and the community, so long as he also states of record
the factual basis and specific reasons which compelled [him] to
deviate from the guideline range.
***
The court's statement of reasons for deviating from the
guidelines serves not only as a record of the court's rationale for
the deviation but also as evidence that the court considered the
guidelines. We cannot analyze whether there are adequate
reasons for the deviation unless it is first apparent that the
court was aware of, and considered the guidelines.
Commonwealth v. Johnson, 666 A.2d 690, 693 (Pa. Super. 1995)
(citations omitted).
Here, for Appellant, who had a prior record score of 3, the guidelines
recommended for burglary a standard range of sentence of 15 to 21
months, an aggravated range sentence of up to 27 months, and a mitigated
range sentence of not less than 9 months. N.T., 8/2/12, at 11. Appellant’s
sentence of 2½ to 5 years (30 to 60 months) fell outside the aggravated
range of the guidelines.
At the sentencing hearing, the trial court heard from the Assistant
District Attorney, who noted that Appellant was 62 years old and “is
regarded as a vulnerable older person”, and recommended a standard
range sentence. N.T., 12/18/14, at 5-6. The trial court then heard from
Appellant’s counsel, Appellant’s mental health coordinator, Michael Keefer,
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and Appellant’s girlfriend, Kelly Bauman. N.T., 12/18/14, at 5-15. The trial
court – without providing any reasons on the record for its sentence – then
imposed a sentence for burglary of 2½ to 5 years, which is above the
aggravated range of the guidelines. Id. at 16-17.
“The general principle underlying the imposition of a sentence calls for
the balancing of public protection, the gravity of the offense and,
particularly, the rehabilitative needs of the defendant. 42 Pa.C.S.A. §
9721(b); The only constraints placed on the court's discretion in sentencing
matters are that the sentence imposed must be within the statutory limits;
the record must show that the court considered the sentencing guidelines in
light of the above balancing standard; and, if the court deviates from the
sentencing guidelines, the record must demonstrate a contemporaneous
statement of reasons for the departure.” Commonwealth v. Jones, 272,
640 A.2d 914, 917 (Pa. Super. 1994) (citations omitted).
The trial court is not bound by the Commonwealth’s sentencing
recommendations, as sentencing is a matter vested in the sound discretion
of the sentencing judge. Garcia-Rivera, 983 A.2d at 780. However, while
sentencing judges have broad discretion, they do not have “unfettered or
unchecked discretion.” Commonwealth v. Monahan, 860 A.2d 180, 182
(Pa. Super. 2004) (citations omitted). Therefore, when a sentence exceeds
the aggravated range of the guidelines and there is an allegation of
excessiveness, this Court must review the record to determine whether
there was an abuse of discretion. Id.
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Upon review, we agree with Appellant that the reasons for the trial
court’s upward deviation were not clearly stated on the record as required
by section 9721(b) of the Sentencing Code. The record is devoid of any
statement by the trial court on the record, or contemporaneous written
statement containing the reasons for its departure from the guidelines.
Although the trial court in its order denying Appellant’s post-sentence
motion did set forth various reasons for its sentence, our Court has
regularly “rejected the argument that the failure to state reasons at the
time of sentencing can be remedied by stating them in a later opinion.”
Commonwealth v. Harris, 457 A.2d 572, 574 (Pa. Super. 1983).
Based on the foregoing, we conclude that the trial court in imposing
its sentence failed to demonstrate that it had adequately considered the
relevant sentencing factors, and failed to state the “factual basis and
specific reasons” which compelled the upward departure from the
guidelines. Johnson, supra. Although the trial court referenced the pre-
sentence investigation report, the trial court did not state that it considered
it in deviating from the guidelines, or how Appellant’s circumstances were
so atypical as to warrant imposition of a sentence in excess of the
guidelines. Also, while the trial court was informed that Appellant had a
prior record, the trial court did not set forth on the record an indication that
it was cognizant of that prior record or the relevant guideline ranges, or
indicate that it was aware of and considered the sentencing guidelines
before electing to depart from them. Nor does the record reflect that, at
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the sentencing hearing, the trial court took into account the relevant
sentencing factors enumerated in § 9721(b) -- including 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 Appellant’s rehabilitative needs.
Accordingly, we are constrained to vacate the judgment of sentence and
remand for re-sentencing.
Judgment of sentence vacated. Case remanded for re-sentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/20/2015
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