Com. v. Woodall, T.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
THEODORE WOODALL, : No. 1460 EDA 2018
:
Appellant :
Appeal from the Judgment of Sentence, December 11, 2017,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-1208311-2003
BEFORE: STABILE, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 11, 2019
Theodore Woodall appeals from the December 11, 2017 judgment of
sentence entered by the Court of Common Pleas of Philadelphia County
following appellant’s convictions of two counts of aggravated assault and one
count each of carrying firearms on public streets or public property without a
license in Philadelphia and possessing instruments of crime.1
A jury convicted appellant of the aforementioned crimes on
September 23, 2004. On November 22, 2004, the trial court sentenced
appellant to an aggregate term of 21 to 42 years’ imprisonment. Appellant
did not file any post-sentence motions. On December 29, 2004, appellant
filed a pro se notice of appeal to this court, which we quashed as untimely
1 18 Pa.C.S.A. §§ 2702(a), 6108, and 907(a), respectively.
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filed. See Commonwealth v. Woodall, No. 148 EDA 2005, unpublished
memorandum (Pa.Super. filed December 29, 2004).
Appellant filed a pro se petition pursuant to the Post Conviction Relief
Act (“PCRA”)2 on October 24, 2005. The trial court ultimately dismissed
appellant’s petition without a hearing on September 22, 2006. Appellant
appealed the dismissal of his petition to this court on October 23, 2006. We
vacated the PCRA court’s dismissal and remanded so that counsel could be
appointed. See Commonwealth v. Woodall, No. 3298 EDA 2006,
unpublished memorandum (Pa.Super. filed November 16, 2010). On remand,
the trial court reinstated appellant’s direct appeal rights nunc pro tunc on
February 20, 2013. Appellant filed a direct appeal of his judgment of sentence
on February 21, 2013. We affirmed appellant’s judgment of sentence on
July 2, 2014. See Commonwealth v. Woodall, 105 A.3d 781 (Pa.Super.
2014) (unpublished memorandum). Our supreme court denied appellant’s
petition for allowance of appeal on November 13, 2014. See Commonwealth
v. Woodall, 104 A.3d 4 (Pa. 2014).
Appellant filed a petition pursuant to the PCRA on February 12, 2015,
which the trial court dismissed. Appellant appealed the dismissal of his PCRA
petition to this court. We vacated appellant’s judgment of sentence and
remanded so that appellant could be resentenced without consideration of the
mandatory minimum sentencing provision of 42 Pa.C.S.A. § 9712 pursuant to
2 42 Pa.C.S.A. §§ 9541-9546.
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Alleyne v. United States, 570 U.S. 99 (2013), and its progeny. See
Commonwealth v. Woodall, 168 A.3d 363 (Pa.Super. 2017) (unpublished
memorandum). The trial court held a re-sentencing hearing on December 11,
2017, during which it sentenced appellant to an aggregate term of 21 to
42 years’ imprisonment.
Appellant filed a timely post-sentence motion on December 21, 2017,
which the trial court denied by operation of law on April 20, 2018. On May 17,
2018, appellant filed a timely notice of appeal to this court. The trial court did
not order appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b), nor did it file an opinion pursuant to
Pa.R.A.P. 1925(a).
Appellant presents the following issue for our review:
Did the [trial court] err in failing to state on the record
any reasons for deviating from the sentencing
guidelines other than to say that it was re-imposing
the sentence of the previous judge?
Appellant’s brief at 9.
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.
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Commonwealth v. Hoch, 936 A.2d 515, 517-18
(Pa.Super. 2007) (citation omitted).
The right to appellate review of the discretionary
aspects of a sentence is not absolute, and must be
considered a petition for permission to appeal. See
Hoch, 936 A.2d at 518 (citation omitted). An
appellant must satisfy a four-part test to invoke this
Court's jurisdiction when challenging the discretionary
aspects of a sentence.
[W]e conduct a four-part analysis to
determine: (1) whether appellant has
filed a timely notice of appeal;
(2) whether the issue was properly
preserved at sentencing or in a motion to
reconsider and modify sentence;
(3) whether appellant's brief has a fatal
defect; and (4) whether there is a
substantial question that the sentence
appealed from is not appropriate under
the Sentencing Code.
Commonwealth v. Moury, 992 A.2d 162, 170
(Pa.Super. 2010) (citations omitted).
Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014), appeal
denied, 117 A.3d 297 (Pa. 2015), quoting Commonwealth v. Buterbaugh,
91 A.3d 1247, 1265-1266 (Pa.Super. 2014), appeal denied, 104 A.3d 1 (Pa.
2014).
Here, appellant timely filed a notice of appeal, preserved his issues in a
post-sentence motion, and included a Pa.R.A.P. 2119(f) statement in his brief.
We must now determine whether appellant raised a substantial question. “A
defendant presents a substantial question when he sets forth a plausible
argument that the sentence violates a provision of the sentencing code or is
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contrary to the fundamental norms of the sentencing process.”
Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa.Super. 2013), appeal
denied, 91 A.3d 161 (Pa. 2014), quoting Commonwealth v. Naranjo, 53
A.3d 66, 72 (Pa.Super. 2012) (citations and internal quotation marks
omitted). Here, appellant avers that the trial court deviated substantially from
the sentencing guidelines. (Appellant’s brief at 15.) We find that appellant
has raised a substantial question, and we will proceed to consider appellant’s
issue on its merits.
The sentencing court is permitted to deviate from the
sentencing guidelines; however, the court must place
on the record its reasons for the deviation.
42 Pa.C.S.A. § 9721(b); Commonwealth v. Byrd, []
657 A.2d 961 ([Pa.Super.] 1995). In sentencing
outside of the guidelines, the court must demonstrate
that it understands the sentencing guidelines ranges.
Id.; Commonwealth v. Johnson, [], 666 A.2d 690([Pa.Super.] 1995); Commonwealth v. Frazier, [],
500 A.2d 158 ([Pa.Super.] 1985); Commonwealth
v. Royer, [] 476 A.2d 453 ([Pa.Super.] 1984). Where
the trial judge deviates from the sentencing guidelines
. . . he must set forth on the record, at sentencing, in
the defendant’s presence, the permissible range of
sentences under the guidelines and, at least in
summary form, the factual basis and specific reasons
which compelled the court to deviate from the
sentencing range. Commonwealth v. Royer, [] 476
A.2d [453,] 457 [(Pa.Super. 1984)].
Commonwealth v. Garcia-Rivera, 983 A.2d 777, 780 (Pa.Super. 2009).
Here, the trial court imposed the following sentence: 7½ to 15 years’
incarceration for two counts of aggravated assault, 3½ to 7 years’
incarceration for carrying firearms on public streets or public property in
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Philadelphia, and 2½ to 5 years’ incarceration for the possessing an
instrument of crime conviction. (Notes of testimony, 12/11/17 at 70.) The
trial court ordered appellant’s sentences to run consecutively, thereby
imposing an aggregate sentence of 13½ to 27 years’ imprisonment. (Id.)
Appellant specifically contends that the trial court abused its discretion
because it “did not consider the guidelines and did not state any reasons for
the deviation.” (Appellant’s brief at 18.) Appellant, however, failed to include
any discussion as to how appellant’s sentence compares to the sentencing
guidelines or how the trial court deviated from the guidelines. The
Commonwealth argues that the trial court sentenced appellant to a term
consistent with the aggravated range of the sentencing guidelines.
(Commonwealth’s brief at 15-16.)
The record reflects that appellant’s prior record score was 4 and his
aggravated assault conviction carries an offense gravity score of 11. The
sentencing guidelines in effect at the time the crimes were committed for
aggravated assault established an aggravated sentencing range of 72 to
90 months’ imprisonment. See 204 Pa.Code § 303.16 (repealed June 3,
2005). Here, the trial court sentenced appellant to a minimum sentence of
90 months, or 7½ years’ imprisonment, for each of his two aggravated assault
convictions, to be served consecutively. Because the trial court’s sentence did
not deviate from the sentencing guidelines, we find that appellant’s claim is
without merit.
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In its brief, the Commonwealth raises an additional issue for our review.
The Commonwealth contends that the trial court imposed an illegal sentence
for appellant’s conviction of carrying a firearm in public in Philadelphia
(“Section 6108”). (Commonwealth’s brief at 16.) As noted above, the trial
court sentenced appellant on this conviction to 3½ to 7 years’ imprisonment.
The Commonwealth avers that this sentence exceeds the statutory maximum.
(Id.)
Preliminarily, we note that appellant did not raise this issue on appeal.
Because this issue addresses the legality of appellant’s sentence, we shall
nonetheless proceed to consider the issue on its merits, as issues pertaining
to the legality of sentence cannot be waived. See Commonwealth v. Succi,
173 A.3d 269, 284 (Pa.Super. 2017), appeal denied, 188 A.3d 1121 (Pa.
2018), citing Commonwealth v. Schutzues, 54 A.3d 86, 91 (Pa.Super.
2012), appeal denied, 67 A.3d 796 (Pa. 2013).
Section 6108 is a first-degree misdemeanor. 18 Pa.C.S.A. § 6119. The
statutory maximum sentence for a conviction of a first-degree misdemeanor
is five years’ imprisonment. 18 Pa.C.S.A. § 1104(1). Accordingly, the trial
court imposed an illegal sentence upon appellant for his conviction of Section
6108. Therefore, we vacate the judgment of sentence only as it pertains to
appellant’s conviction for Section 6108.
The Commonwealth requests that this court vacate appellant’s sentence
for Section 6108 and modify the trial court’s sentence to reflect the applicable
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statutory maximum. (Commonwealth’s brief at 16.) In support of its request,
the Commonwealth cites a litany of cases supporting its contention that we
need not remand for resentencing because we can amend the illegal sentence.
(Commonwealth’s brief at 17, citing Commonwealth v. Huckleberry, 631
A.2d 1329, 1334 (Pa.Super. 1993); Commonwealth v. Kozrad, 499 A.2d
1096, 1099 (Pa.Super. 1985); Commonwealth v. Alarie, 547 A.2d 1252,
1256 (Pa.Super. 1989).)
An appellate court may affirm, modify, vacate, set
aside or reverse any order brought before it and may
remand the matter. 42 Pa.C.S.A. § 706. If our
disposition upsets the overall sentencing scheme of
the trial court, we must remand so that the court can
restructure its sentence plan. Commonwealth v.
Williams, 871 A.2d 254, 266, 267 (Pa.Super. 2005).
By contrast, if our decision does not alter the overall
scheme, there is no need for a remand.
Commonwealth v. Robinson, 817 A.2d 1153, 1163
n.14 (Pa.Super. 2003).
Commonwealth v. Thur, 906 A.2d 552, 569-570 (Pa.Super. 2006)
(emphasis added), appeal denied, 946 A.2d 687 (Pa. 2008).
Here, because we are vacating appellant’s judgment of sentence with
regards to the Section 6108 conviction, our decision upsets the overall
sentencing scheme of the trial court, as our action affects the length of
appellant’s aggregate sentence. In the cases cited by the Commonwealth, the
judgments of sentence that were vacated were part of concurrent sentencing
schemes; therefore, our decisions in those cases did not alter the overall
sentencing scheme and remand was not required.
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Judgments of sentence vacated. Case remanded for resentencing
consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/11/19
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