Com. v. Woods, B.

J-S35041-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRUCE KENNETH WOODS :
:
Appellant : No. 792 MDA 2021
Appeal from the Judgment of Sentence Entered September 10, 2020
In the Court of Common Pleas of Huntingdon County Criminal Division at
No(s): CP-31-CR-0000454-2019
BEFORE: OLSON, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED DECEMBER 13, 2021
Bruce Kenneth Woods (Woods) appeals nunc pro tunc from the
judgment of sentence imposed in the Court of Common Pleas of Huntingdon
County (trial court) following his guilty plea to possession of contraband by an
inmate, 18 Pa.C.S. § 5123(a.2), a second-degree felony. He challenges the
discretionary aspects of sentence. We affirm.
The following background facts and procedural history from our
independent review of the record and the trial court’s August 4, 2021 opinion
are not in dispute.
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* Retired Senior Judge assigned to the Superior Court.
J-S35041-21
I.
Woods is an inmate at SCI-Smithfield where he is serving a sentence of
not less than 25 nor more than 50 years’ incarceration pursuant to his
negotiated guilty plea to third-degree murder, robbery and solicitation to
commit perjury. On December 16, 2018, Woods met with a female visitor and
surveilling law enforcement officers observed the woman hand Woods three
balloons containing suspected controlled substances. Woods swallowed the
balloons and defecated them days later. Forensic testing confirmed that the
balloons contained heroin and buprenorphine, a Schedule I and Schedule II
substance, respectively.
On September 10, 2020, Woods pleaded guilty to possession of a
controlled substance by an inmate. Prior to Woods entering the plea, the
prosecutor stated on the record that he was offering a sentence of not less
than 18 nor more than 36 months’ imprisonment. During his colloquy, Woods
stated that he accepted the sentencing offer. The trial court sentenced Woods
pursuant to the agreement, consecutive to any sentences he already was
serving. Woods did not raise any objections to the sentence at that time.
On September 21, 2020, Woods filed a timely post-sentence motion to
withdraw the plea on the sole basis that he was no longer interested in it and
that he instead wanted to go to trial. He did not challenge the discretionary
aspects of his sentence. The court denied the motion on November 20, 2020.
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On June 11, 2021, Woods filed a motion to appeal nunc pro tunc that
the trial court granted on June 14, 2021. That same day, Woods filed his
notice of appeal. He filed a timely statement of errors complained of on
appeal. See Pa.R.A.P. 1925(b).
II.
Woods raises one issue for our review which concerns the discretionary
aspects of his sentence.1 He states the issue as: “Is the sentence imposed
on [him] manifestly excessive, given the lack of harm caused to any other
person and his acceptance of responsibility and rehabilitative needs?” (Woods’
Brief, at 4). However, as observed by both the trial court and the
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1 See Commonwealth v. Ventura, 975 A.2d 1128, 1133 (Pa. Super. 2009),
appeal denied, 987 A.2d 161 (Pa. 2009) (claim that court did not consider
mitigating circumstances and all sentencing factors raises discretionary
aspects of sentence claim); Commonwealth v. Lutes, 793 A.2d 949, 964
(Pa. Super. 2002) (claim that sentence is manifestly excessive challenges
discretionary aspects of sentencing). It is well-settled that “[c]hallenges to
the discretionary aspects of sentencing do not entitle an appellant to review
as of right.” Commonwealth v. Derry, 150 A.3d 987, 991 (Pa. Super. 2016)
(citation omitted). Rather, before reaching the merits of such claims, we must
determine: (1) whether the appeal is timely; (2) whether appellant preserved
his issue; (3) whether appellant’s brief includes a concise statement of the
reasons relied upon for allowance of appeal with respect to the discretionary
aspects of sentence; and (4) whether the concise statement raises a
substantial question that the sentence is appropriate under the sentencing
code. Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super.
2013), appeal denied, 71 A.3d 323 (Pa. 2013) (citation omitted). “To preserve
issues concerning the discretionary aspects of sentencing, a defendant must
raise them during sentencing or in a timely post-sentence motion.”
Commonwealth v. Feucht, 955 A.2d 377, 383 (Pa. Super. 2008), appeal
denied, 963 A.2d 467 (Pa. 2008) (citations omitted).
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Commonwealth, he failed to preserve his issue in the trial court by raising the
discretionary aspects of sentence issue either at sentencing or in his post-
sentence motion, thus denying the trial court the opportunity to reconsider or
modify his sentence. (See Trial Court Opinion, at 2); (Commonwealth’s Brief,
at 8-9). Hence, the claim is waived. See Commonwealth v. Griffiths, 65
A.3d 932, 936 (Pa. Super. 2013), appeal denied, 76 A.3d 538 (Pa. 2013)
(discretionary aspects of sentence claim waived where appellant fails to raise
claim during sentencing proceedings or in post-sentence motion);
Commonwealth v. Reeves, 778 A.2d 691, 692-93 (Pa. Super. 2001) (failure
to raise specific claim regarding imposition of sentence in post-sentence
motion deprived trial court opportunity to consider it and, thus, claim waived
on appeal).
Moreover, even if he had not waived the issue, Woods would be due no
relief, even though he raises a substantial question. See Commonwealth v.
Derrickson, 242 A.3d 667, 680 (Pa. Super. 2020), appeal denied, 253 A.3d
213 (Pa. 2020) (“claim that the trial court failed to consider relevant
sentencing criteria, including the protection of the public, the gravity of the
underlying offense and the rehabilitative needs of Appellant, as 42 Pa.C.S.A.
§ 9721(b) requires, presents a substantial question for our review.”) (citation,
brackets and internal quotation marks omitted).2
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2 Our standard of review of this matter is well-settled:
(Footnote Continued Next Page)
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Woods argues that although he was sentenced pursuant to a plea
agreement, the trial court was not required to accept and impose the
manifestly excessive sentence. (See Woods’ Brief, at 6). He maintains that
he thought he was entering an open plea and that the court would consider
that the sentencing factors do not support the agreed-upon term. (See id. at
7-10).
Traditionally, the trial court is afforded broad discretion in
sentencing criminal defendants because of the perception that the
trial court is in the best position to determine the proper penalty
for a particular offense based upon an evaluation of the individual
circumstances before it. Under Pennsylvania’s Sentencing Code,
42 Pa.C.S. § 9701 et seq., a trial court must follow the general
principle that the 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.
Id. § 9721(b). …
Commonwealth v. Mouzon, 812 A.2d 617, 620 (Pa. 2002) (case citations,
quotation marks and footnote omitted).
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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. Antidormi, 84 A.3d 736, 760 (Pa. Super. 2014), appeal
denied, 95 A.3d 275 (Pa. 2014) (citation omitted).
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First, as Woods concedes, the court sentenced him pursuant to the
agreed-upon sentence of not less than 18 nor more than 36 months of
incarceration. (See Woods’ Brief, at 4); (see also Commonwealth’s Brief, at
11); (Trial Ct. Op., at 1-2). It is well-established that “where the plea
agreement provides … for specific penalties, an appeal from a negotiated
sentence will not stand.” See Commonwealth v. Dalberto, 648 A.2d 16,
20 (Pa. Super. 1994), appeal denied, 655 A.2d 983 (Pa. 1995), cert. denied,
516 U.S. 818 (1995).
Second, as the trial court noted, “Even assuming, arguendo, that
[Woods] had properly preserved his issue, the court submits that a sentence
of eighteen to thirty-six months for attempting to smuggle multiple balloons
of Suboxone and heroin into SCI-Smithfield is not excessive in light of both
the gravity of the offense and [Woods’] prior record[.]” (Trial Ct. Op., at 2).
We agree.
Woods is a repeat violent felon with two or more first-degree felony
convictions, with a prior record score of six. See 204 Pa. Code §§ 303.4,
303.7. He pleaded guilty to the second-degree felony of possession of a
controlled substance by an inmate, which carries an offense gravity score of
seven. See 204 Pa. Code § 303.15. Based on the foregoing, the mitigated
sentencing range for his conviction was 29 to 35 months. See 204 Pa. Code
§§ 303.13(b), 303.16(a).
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Even taking into consideration the lack of harm caused to any other
person and Woods’ acceptance of responsibility and rehabilitative needs, we
discern no abuse of the trial court’s broad discretion in accepting an agreed-
upon sentence well below the mitigated range and sentencing Woods
consistent therewith. See Antidormi, supra at 760. For all these reasons,
Woods’ issue on appeal, even if properly preserved, would fail.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/2021
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