Commonwealth v. Andrews

ORIE MELVIN, Judge:

This is a challenge to the discretionary aspects of sentencing. Appellant, Danny Andrews, was found guilty of five counts of robbery,¹ two counts of conspiracy,² and two counts of possession of an instrument of crime.³ He was initially sentenced to sixty-five to one hundred thirty years in prison. After a direct appeal to the Superior Court of Pennsylvania, we remanded for re-sentencing based on the sentencing court’s failure, on the record, to indicate an awareness of the applicable guideline ranges, and to provide a statement of reasons supporting deviation from the guidelines.⁴ On remand, the sentencing court created a record that included the recitation of the applicable ranges of sentence and again imposed a sentence of sixty-five to one hundred thirty years in prison. This appeal follows. We affirm.

Mr. Andrews’ issues on appeal are all related to the contention that the sentence imposed on his conviction was an abuse of discretion because the sentencing court allegedly exceeded the applicable guideline range and failed to state its reasons for imposing-such a sentence. Mr. Andrews’ brief correctly includes a separate statement, as required by the Pennsylvania Rules of Appellate Procedure, by which he attempts to demonstrate that a substantial question exists regarding the appropriateness of the sentence imposed. See 42 Pa.C.S.A. § 9781(b); Pa.R.A.P., Rule 2119(f), 42 Pa.C.S.A.; Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).

The determination of whether a particular issue constitutes a substantial question must be evaluated on a case by ease basis. Commonwealth v. Losch, 369 Pa.Super. 192, 535 A.2d 115, 119 n. 7 (1987). “However, we will be inclined to allow an appeal where an appellant advances a color-able argument that the trial judge’s actions were: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.” Id. We find that Mr. Andrews’ averments advance a colorable argument that the fundamental norms underlying the sentencing process have been compromised in his case. We may therefore consider the merits of his claim.

First, Mr. Andrews claims that the trial court erred in not granting his request for a new pre-sentence report to be prepared and considered prior to re-sentencing. Mr. Andrews accurately notes that sentencing is a matter vested in the sound discretion of the sentencing court whose judgment will not be disturbed on appeal absent an abuse of discretion. Commonwealth v. Campion, 449 Pa.Super. 9, 672 A.2d 1328, 1333 (1996). Further, as we stated in Losch, supra, on remand: “the judge at a second sentencing hearing should reassess the penalty to be imposed on the defendant — especially where defense counsel comes forward with relevant evidence which was not previously available.” 535 A.2d at 122.⁵ However, Mr. Andrews’ favorable adjustment to life in the penitentiary is only one of several variables upon which the trial judge should focus; there is no right to have this one factor take precedence over all others. Losch, 535 A.2d at 123.

In the case presently before us, we note that the sentencing court had available to it the pre-sentence report issued in 1992 at the time of the original sentencing. A new pre-sentence report would have advised the sentencing court of Mr. Andrews’ activities while incarcerated. However, Mr. Andrews’ counsel provided this information to the sentencing court. The Commonwealth conceded that Mr. Andrews had no institutional citation during his incarceration. The sentencing court indicated his willingness to accept this as a fact and to be mindful of the information about Mr. Andrews’ behavior while incarcerated. An updated pre-sentence report presumably would have provided the same information. We see no reason that an updated report would be required under the circumstances. The sentencing court took the additional information into consideration. There was no need to seek an updated pre-sentence report. Furthermore, as stated above, the fact that Mr. Andrews adjusted favorably to life in prison is only one of several variables considered by the sentencing court and there is no right to have this one factor take precedence over all others. Id.

Mr. Andrews’ second issue is a conglomeration of allegations that the sentencing court abused its discretion and violated the sentencing code. These bases include the allegations that the sentencing court: (a) imposed sentences which were manifestly excessive; (b) unjustifiably and unreasonably deviated above the aggravated range of the Sentencing Guidelines without a sufficient identification of individualized aggravating factors, or sufficient explanation of reasons for the departure; (c) relied upon factors already considered and incorporated into the Sentencing Guideline ranges; (d) erred in imposing upon Mr. Andrews the same lengthy sentence as imposed upon his co-defendant, without distinguishing the disparity in their criminal histories; and (e) gave insufficient consideration to Mr. Andrews’ potential for rehabilitation, and to the other factors required to be fully considered and balanced in the sentencing decision. These bases are interrelated and where possible, will be considered together.

In selecting an appropriate sentence, a court is required to consider the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant. 42 Pa.C.S.A. § 9721(b). When imposing a sentence of total confinement, the court must consider the history, character and condition of the defendant as well as the nature and circumstances of the crime. Id. at § 9725.

Mr. Andrews claims that the sentence imposed is manifestly excessive. In determining whether a sentence is manifestly excessive, “the appellate court must give great weight to the sentencing judge’s discretion, as he or she is in the best position to measure factors such as the nature of the crime, the defendant’s character, and the defendant’s display of remorse, defiance, or indifference.” Commonwealth v. Ellis, 700 A.2d 948, 958 (Pa.Super.1997), citing Commonwealth v. Anderson, 381 Pa.Super. 1, 552 A.2d 1064 (1988). In light of the fact that the trial court is in the best position to determine an appropriate sentence, we find that the trial court did not abuse its discretion and impose a manifestly excessive sentence.

Mr. Andrews next claims that the sentencing court failed to explain sufficiently it’s deviation from the sentencing guidelines and gave insufficient consideration to his potential for rehabilitation. A review of the sentencing hearing transcript belies these contentions. The sentencing court specifically noted that it took into consideration the sentencing guidelines, the previous pre-sentence evaluations, the psychiatric reports, and prior record reports as well as counsel’s report that Mi'. Andrews had not experienced any problems while incarcerated. The sentencing court further stated its reasons for sentencing him outside the sentencing guidelines. The sentencing judge specifically opined that the Mr. Aidrews was a distinct threat to the community, had not been deterred by his prior convictions and commitments, and had a long history of crimes of violence. We find that the sentencing court complied with the appropriate requirements and did not abuse its discretion in sentencing Mr. Andrews in this case.

Mr. Andrews also claims that the sentencing court relied on factors that were already considered and incorporated into the sentencing guidelines. Specifically, he argues that the existence of a prior record has already been factored into the sentencing guidelines and cannot serve to justify a sentence above the guidelines. In making this argument, Mr. Andrews again is attempting to single out and attack just one of many factors considered by the sentencing court. We do not find that the sentencing court put undue weight on this one factor or any other. Instead, it is apparent from our review of the transcript of the sentencing hearing that the judge, as noted above, took a number of factors into consideration, not just Mr. Andrews’ prior record.

Further, we note that a defendant’s criminal history is not entirely reflected in his prior record score. Commonwealth v. Darden 366 Pa.Super. 597, 531 A.2d 1144 (1987). Specifically, in the case presently before us, the pre-sentence report⁶ indicates that Mr. Andrews is a career offender beginning with being arrested ten times as a juvenile, resulting in two delinquency adjudications, both for robbery and related charges. As an adult, Mr. Andrews has been arrested seventeen times, resulting in six convictions for robbery, burglary or receiving stolen goods. In addition, Mr. Andrews was on parole for only one month at the time of the robberies at issue in this case, and he pleaded guilty to two other robberies committed after the offenses at issue in this case. The prior record score does not reflect either the juvenile adjudications or the robberies he committed after the instant crimes. As stated by the court in Darden:

When relevant sentencing factors have not been incorporated into the computation of the standard minimum range, it necessarily follows that such factors may be considered as factors to justify a sentence in the mitigated minimum range, the aggravated minimum range, or outside the guideline ranges.

Id. 531 A.2d at 1149. Thus, we find that the sentencing court was justified in considering these factors to sentence outside the guideline ranges.

Mr. Andrews next contends that the sentencing court erred in imposing on him the same sentence as his co-defendant without distinguishing the disparity of their criminal histories. While it is true that the co-defendant’s prior record score was greater, Mi\ Andrews can cite no authority that this factor alone requires the sentencing court to proportionately adjust its sentence as between the co-defendants. As mentioned above, the sentencing court has wide discretion in imposing sentence. Campion, supra. The disparity in prior record scores is but one factor that the sentencing court may consider. It is not dispositive.

Mr. Andrews’ final issue on appeal is that principles of double jeopardy and statutory analysis require that his multiple consecutive sentences for conspiracy and possession of instruments of a crime must be vacated.⁷ In making this argument, he reasons that if the three robbery incidents constituted a continuous, overlapping common scheme, then the inchoate crimes of conspiracy and possession of instruments of crime constitute a single, continuing offense such that only one sentence can be imposed. We disagree. The three robbery incidents do not constitute an overlapping common scheme. They were separate incidents that were consolidated for trial. This is why Mr. Andrews was charged with three counts of criminal conspiracy and three counts of possession of an instrument of crime. Mr. Andrews is apparently confusing two separate legal concepts: consolidation and merger. Consolidation refers to when different crimes may be tried at one proceeding. Specifically, where: “the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion.” Pa. R.Crim.P. 1127A (l)(a), 42 Pa.C.S.A. The doctrine of merger, though, is a rule of statutory construction designed to determine whether the legislature intended for the punishment of one offense to encompass that for another offense arising from the same criminal act or transaction. Commonwealth v. Anderson, 538 Pa. 574, 650 A.2d 20 (1994)

In the case presently before this court, the criminal information reveals that the charges against Mr. Andrews involved three different robberies, of different individuals, at three different apartment buildings, over a two-day period. Mr. Andrews was charged with six counts of robbery. However, the Commonwealth charged Mr. Andrews with three counts of criminal conspiracy and three counts of possession of an instrument of a crime. Therefore, Mr. Andrews was charged with one count of conspiracy and one count of possession of an instrument of crime for each apartment building robbed. However, the charges were consolidated for the purpose of trial. This was proper because the crimes are so similar. The jury convicted Mr. Andrews on five counts of robbery, two counts of conspiracy and two counts of possession of an instrument of crime. Because robbery, conspiracy and possession of an instrument of crime do not merge for purposes of sentencing, the court was entitled to impose separate sentences on each count.

There is nothing about the concept of consolidation that invokes the concept of merger. Mr. Andrews does not describe any basis for merger or violation of double jeopardy except for the reference to the court permitting consolidation. He cites no case law, and we can find none that would support this argument. Consolidation of the offenses for the purposes of trial did not require merger of the offenses for the purposes of sentencing. There was no need to merge the offenses for the purposes of sentencing. Furthermore, there was no violation of double jeopardy because both the convictions for conspiracy and the convictions for possession of an instrument of crime were for two different offenses.⁸

Judgment of sentence affirmed.

TAMILIA, J., joins the Opinion and files a Concurring Statement.

BROSKY, J. files a dissenting opinion.

1 . 18 Pa.C.S.A. § 3701.

2 . 18 Pa.C.S.A. § 903.

3 . 18 Pa.C.S.A. § 907(a).

4 . For the sake of completing the procedural history, we note that we denied appellant’s motion for reconsideration of portions of our decision. Commonwealth v. Andrews, 434 Pa.Super. 682, 641 A.2d 1218 (1993) (unpublished memorandum). In addition, our Supreme Court denied appellant's petition for allowance of appeal. Finally, the Supreme Court of United States denied appellant’s subsequent petition for certiorari.

5 . The sentencing court incorrectly stated that he was required to take a retrospective view of sentencing, i.e. sentence on remand as if no time had passed. However, as discussed more fully below, the sentencing court did not disregard the information supplied by Mr. Andrews’ counsel. Instead, he accepted it as true and indicated a willingness to be mindful of the information.

6 . The pre-sentence report was not provided in the certified record. Although we requested the original report from the Philadelphia Probation Office, that office has failed to comply with our request. However, both parties have referred to the pre-sentence report and there is no dispute as to its contents.

7 . While Mr. Andrews did not raise this issue before the trial court, it questions the legality of the sentence. The legality of a sentence is a nonwaivable issue and may be raised at any time or sua sponte by the court. Commonwealth v. Moran, 450 Pa.Super. 283, 675 A.2d 1269 (1996).

8 . We are aware of the recently decided case of Commonwealth v. Woods (No. 3238 Philadelphia 1996) cited by the dissent. However, these two cases are distinguishable. In Woods, the defendant was convicted of two counts of carrying a firearm on a public street (18 Pa.C.S.A. § 6108) because there were two assaults involved. We reversed recognizing that there was not a break in possession of the weapon between the two assaults. In fact, Mr. Woods remained in his car, fleeing from a hit and run accident and assaulted each victim to facilitate his flight. The entire incident was one continuing event. In the instant case, Mr. Andrews was convicted of two separate counts of robbery, in two separate apartment complexes, albeit on the same day. In each of these robberies, he employed a handgun to facilitate the crimes. Therefore, the Commonwealth sought convictions for possession of an instrument of crime associated with each of these incidents. 18 Pa.C.S.A. § 907(a). We find it possible for the trial court to conclude that these two robberies were two separate unrelated events that each began when Mr. Andrews entered the different apartments and ended when he left.