Com. v. Butler, S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
SUKORI BUTLER
Appellant No. 3425 EDA 2013
Appeal from the Judgment of Sentence entered November 12, 2013
In the Court of Common Pleas of Monroe County
Criminal Division at No: CP-45-CR-0001002-2013
BEFORE: FORD ELLIOTT, P.J.E., OLSON, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 25, 2014
Appellant, Sukori Butler, appeals from the judgment of sentence the
Court of Common Pleas of Monroe County entered November 12, 2013. On
appeal, Appellant challenges the discretionary aspects of his sentence. Upon
review, we affirm.
The trial court summarized the factual and procedural history of this
case as follows:
On August 8, 2013, [Appellant] pled guilty to [t]erroristic
[t]hreats, acknowledging and accepting responsibility for
punching his girlfriend and fracturing her jaw. At the time
of the guilty plea, [Appellant] was advised that he would
be sentenced on October 29, 2013. [Appellant] failed to
appear for sentencing and a bench warrant was issued on
November 1, 2013. After [Appellant] was picked up on the
warrant, he was sentenced on November 12, 2013 to a
period of incarceration of twelve to twenty-four month[s]
and required [Appellant] to make restitution to the victim.
[Appellant] filed a [m]otion for [r]econsideration of
[s]entence on November 15, 2013, which was denied by
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[o]rder dated November 20, 2013. Subsequently, on
December 5, 2013, [Appellant] filed a [n]otice of [a]ppeal
and we ordered [Appellant] to file a concise statement of
issues on appeal. . . .
In his 1925(b) statement, [Appellant] appeals from the
discretionary aspects of his sentence. Specifically,
[Appellant] contends that we abused our discretion in
sentencing [Appellant] to an aggravated range sentence
and we did not explain the reasons for the sentence.
Trial Court Opinion, 1/30/14, at 1-2. This appeal followed.
discretion in sentencing [] Appellant to a term of incarceration at a state
correctional facility, and said sentence was clearly unreaso
improperly focused on the nature of the crime, and did not consider the
current character of Appellant or his rehabilitative needs. Additionally,
icate that it was in fact sentencing Appellant
outside of the guidelines and provide a contemporaneous statement of its
Id.
preserve a challenge to the discretionary aspects of a sentence, an appellant
must file a timely notice of appeal, preserve the argument in a timely post-
sentence motion or orally at sentencing, include a Pa.R.A.P. 2119(f)
statement in the appellate brief, and raise a substantial question.
Commonwealth v. Dewey, 57 A.3d 1267, 1269 (Pa. Super. 2012).
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Here, it is undisputed that Appellant timely filed a notice of appeal,
timely filed a post-sentence motion raising the discretionary issues, and
included a Pa.R.A.P.2119(f) statement in his brief. The only issue is whether
he raised a substantial question for our review.
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. See
Commonwealth v. Paul,
substantial question exi[sts] only when the appellant advances a
either: (1) inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental norms
Commonwealth v.
Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quotation and
quotation marks omitted).
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013).
Our standard of review of a sentencing claim is as follows:
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. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)
(citation omitted). In reviewing a sentence on appeal, the appellate court
shall vacate the sentence and remand the case to the sentencing
court with instructions if it finds:
(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines
erroneously;
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(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly
unreasonable; or
(3) the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.
In all other cases[,] the appellate court shall affirm the sentence
imposed by the sentencing court.
42 Pa.C.S.A. § 9781(c).1
character and his rehabilitative needs and (ii) provide a contemporaneous
statement for deviating from sentencing guidelines. These claims raise a
substantial question for our review. See Commonwealth v. Downing, 990
A.2d 788, 793 (Pa. Super. 2010); Commonwealth v. Monahan, 860 A.2d
180, 182 (Pa. Super. 2004). While Appellant raises substantial questions for
our review, the issues are, nonetheless, without merit.
____________________________________________
1
In Commonwealth v. Coulverson, 34 A.3d 135 (Pa. Super. 2011), we
noted:
In determining whether a particular sentence is
as the particular circumstances of the offense involved, the trial
nce
investigation report, if any, the Sentencing Guidelines as
upon which the trial court based its sentence.
Id. at 147 (citation omitted); see also 42 Pa.C.S.A. § 9781(d).
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With regard to the first issue, the claim is meritless because the trial
court had, and reviewed, a pre-sentence investigation report, which included
all pertinent informatio
Our Supreme Court has determined that where the trial court is
informed by a pre-sentence report, it is presumed that the court is aware of
all appropriate sentencing factors and considerations, and that where the
court has been so informed, its discretion should not be disturbed
Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009)
(citation omitted). Regarding the rehabilitative needs, Appellant himself
testified at the hearing about the importance of being close to his family and
accountability. The trial court took into account both matters, but declined
to sentence Appellant to a county sentence. See N.T. Sentencing,
11/12/13, at 3-
the trial court failed to consider either his current character or rehabilitative
needs. Additionally, Appellant failed to provide any authority for the
proposition the trial court abused its sentencing discretion simply because it
disagreed with Appellant regarding the assessment of his character or
rehabilitative needs.
The second issue is similarly without merit, for two reasons. First,
Appellant was not sentenced outside the sentencing guidelines; rather, his
sentence fell within the aggravated range. Second, the trial court clearly
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imposed a sentence in the aggravated range (i.e., Appellant tested positive
for marijuana at the time of the presentence investigation). See N.T.
Sentencing, 11/12/13, at 10; see also 42 Pa.C.S.A. § 9721(b).2 The trial
court also considered, but rejected, Appellant
circumstance (he punched victim only once). The trial court explained that
victim suffered a significant amount of damage (broken jaw). N.T.
Sentencing, 11/12/13, 9-10; see also Trial Court Opinion, 1/30/14, at 2-3.
The claim is, therefore, without merit.
____________________________________________
2
Section 9721(b) provides:
In every case in which the court imposes a sentence for a felony
or misdemeanor, modifies a sentence, resentences an offender
following revocation of probation, county intermediate
punishment or State intermediate punishment or resentences
following remand, the court shall make as a part of the record,
and disclose in open court at the time of sentencing, a statement
of the reason or reasons for the sentence imposed. In every
case where the court imposes a sentence or resentence outside
the guidelines adopted by the Pennsylvania Commission on
Sentencing under sections 2154 (relating to adoption of
guidelines for sentencing), 2154.1 (relating to adoption of
guidelines for county intermediate punishment), 2154.2 (relating
to adoption of guidelines for State intermediate punishment),
2154.3 (relating to adoption of guidelines for fines), 2154.4
(relating to adoption of guidelines for resentencing) and 2154.5
(relating to adoption of guidelines for parole) and made effective
under section 2155, the court shall provide a contemporaneous
written statement of the reason or reasons for the deviation
from the guidelines to the commission, as established under
section 2153(a)(14) (relating to powers and duties).
42 Pa.C.S.A. § 9721(b).
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Accordingly, we conclude the trial court did not abuse its discretion in
sentencing Appellant in the aggravated guidelines range.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2014
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