Commonwealth v. Johnson-Daniels

J. S01022/17
2017 Pa. Super. 209
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BARRY G. JOHNSON-DANIELS, :
:
Appellant : No. 919 MDA 2016
Appeal from the Judgment of Sentence February 8, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0004222-2014
BEFORE: GANTMAN, P.J., DUBOW, J., and MUSMANNO, J.
OPINION BY DUBOW, J.: FILED JULY 05, 2017
Appellant Barry G. Johnson-Daniels seeks review of the Judgment of
Sentence entered by the Court of Common Pleas after the entry of
Appellant’s guilty plea. He challenges the court’s refusal to grant his pre-
sentence Motion to withdraw his guilty plea, and the discretionary aspects of
his sentence. After careful review, we affirm.
The facts, as gleaned from the certified record, are as follows. Police
officers in Harrisburg received a tip from Crime Stoppers that Appellant was
selling drugs on a street in an area known for drug trafficking. On December
24, 2013, a confidential informant (“CI”) working with the Harrisburg Police
Department purchased crack cocaine from Appellant at a carwash on Derry
Street at a planned meeting. Police officers immediately arrested Appellant
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after a struggle.1 Police officers recovered a bag containing 35 grams of
cocaine laying under Appellant’s body once they subdued him. They also
found cash from Appellant’s person and, pursuant to a search warrant for
Appellant’s vehicle, found heroin packaged in 59 individual packets, $4,000
in cash, and five cell phones, including one with the phone number the CI
used to set up the drug purchase.
Appellant was charged with two counts of Possession with Intent to
Deliver a controlled substance (“PWID”) and related drug offenses, as well
as Escape, Flight to Avoid Apprehension, Resisting Arrest, and two summary
driving offenses, for a total of 11 counts. Appellant remained free on bail.
See Notes of Testimony (“N.T.”) Plea, 12/8/15, at 15-18.
On December 8, 2015, just prior to picking a jury, Appellant entered
an open guilty plea to all charges. At that hearing, Appellant underwent an
extensive waiver colloquy. Appellant’s attorney stated that he had apprised
Appellant of the elements of the crimes charged. Appellant agreed that he
“is aware of the elements of the crimes charged, the burden of production
and persuasion that the Government has the duty of if it were to come to
trial, and then also what the statutory maximums are of each one of the
1
The struggle ensued after police officers boxed in Appellant’s car. When he
refused to exit the vehicle, police officers smashed a window and removed
him from the car. He broke free and ran approximately 15 feet until he was
tackled by police. He refused demands to provide his hands to police so
they could cuff him. Ultimately, police officers struck Appellant several
times and used pepper spray. Trial Court Op., dated 5/9/16, at 2
(unpaginated).
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offenses.” Id. at 7-8. In addition, the prosecutor provided a detailed
recitation of the facts underlying the charged crimes, the elements of each
of the crimes, and the possible sentence for each crime. Appellant
unequivocally responded that he understood each crime and agreed that he
was pleading guilty because he was “in fact, guilty of them.” Id. at 9-22,
29. The trial court accepted the guilty pleas, ordered a pre-sentence
investigation, and scheduled sentencing for January 26, 2016. Id. at 22,
29. Appellant remained free on bail, and on January 21, 2016, filed a Pre-
Sentence Memorandum in Mitigation.
On January 26, 2016, at the sentencing hearing, the Commonwealth
requested a sentence of at least four years’ incarceration.2 Relevant to this
appeal, the following exchange occurred during the prosecutor’s argument:
[Prosecutor]: The defendant is an individual who profits from
the drug trade and he profits from addiction. As a prosecutor
who’s been doing this for a long time, we look at these cases,
and you see a name and you see a deal and you see an amount
of weight that was sold and you really don’t think much further
than that.
However, it is important to note that all these drug indications
[sic] involve numerous victims, when you think about it: people
who are addicted to cocaine, people who are addicted to heroin.
These individuals lose their jobs. They go out on the street, and
they need money to support their habit. In order to support
their habit, they rob. They steal. They steal from friends. They
steal from family. They commit burglaries. They commit
robberies out on the street. And the entire public is affected by
this.
2
The Commonwealth withdrew the Flight to Avoid Apprehension charge at
count 8.
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The defendant profits from that. He makes money off of that to
buy things, to go on trips.
And I noticed in his presentence investigation, that – his
[mitigation] memorandum that he sent, I believe there was a
picture of him and his five children and pictures of him when he
was in kindergarten and school, growing up. But as recently as
September, if you go on the defendant’s Facebook page, he’s in
Las Vegas, having a good time.
[Appellant’s Attorney]: You know what? I’m going to have to
object to a large part of – I understand that there’s allocution,
and the Commonwealth has a right of it, but a couple of different
things. I was gonna let it go.
Number one, the relevance of the trail of tears type of
information when there’s been absolutely nothing linked to this
particular defendant. That is wild speculation, and I’d ask the
Court to acknowledge the fact that drugs are something that
destroys our community, but specific effects have not been
traced back to [Appellant].
Number two is, as far as being in Las Vegas or anything on his
Facebook, I note that there’s nothing here that’s presented as
far as anything that’s authenticated, nothing here in terms of the
evidence. And so I’d ask the Court to strike that, also, from its
consideration as well. There’s a way to prove these things up,
and they were not done.
[Prosecutor]: And I’m not worried about, necessarily, the Las
Vegas thing.
However, it is apparent that the defendant is someone who
profits from the drug trade, makes money. He is not a person
who uses and sells to support his habit. He profits from this,
and he makes money to buy things. And with that – and that is
the reason I am requesting a sentence of no less than four years
in State prison.
He’s had numerous PWIs. He’s gotten Intermediate Punishment.
He went to County prison. It is time to send [Appellant] to State
prison.
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[Appellant’s Attorney]: If I may, Your Honor, very quickly.
At this time, Your Honor, based upon not only the comments
that we had sidebar[3] and also with respect to the prosecutor’s
allocution, we’d like to withdraw our guilty plea.
The Court: I don’t know on what grounds that would be. I
already have the presentence. I have your [Mitigation]
[M]emorandum.
[Appellant’s Attorney]: It’s –
The Court: The sentence is based on his plea, the background,
and the information that I have pertaining to the case. [The
prosecutor] gave his comments. Regardless of his comment, I
am going to proceed with sentencing.
[Appellant’s Attorney]: Just so we are clear here, this is prior
to sentencing. He’s asking to withdraw his guilty plea, which is
liberally allowed under the Pennsylvania Supreme Court rulings,
and that the Court needs to show a manifest abuse of justice in
order for it to be able to do that. And I don’t see that on this
record.
I just want to be clear to the Court that our intention here is to
withdraw his guilty plea prior to sentencing, and I think that if
the Court goes forward and sentences him when he asserts that
he’s factually innocent – which he’s prepare to do – then it’s
going to be a very difficult burden for the court to overcome.
The Court: This is the second time that [Appellant] has gone
down this lane.
[Appellant’s Attorney]: And you know what happened on the
second one? He got found not guilty.
The Court: That’s correct.
[Appellant’s Attorney]: Okay. So –
3
Appellant did not provide any transcriptions of sidebar and in-chambers
meetings that occurred in this case.
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The Court: All right. I’ll tell you what we’re going to do. We’re
going to allow him to withdraw his plea.
I will raise bail to $150,000. We will set this for February 8 th for
trial.
[Discussion occurred between the Court and Appellant’s
Attorney regarding the increase in bail and Appellant’s
intention to appeal the increase of bail.]
[Prosecutor]: And it’s the Commonwealth’s position that bail
should – he shouldn’t even have bail. While he was out on bail
on two other cases, he violated this act.
So for him to be in jail at this time is not only proper; it is the
correct thing to do at this point. . . . what he’s doing right now
is playing games with the system.
***
This case has been around since at least, the first listing, August
of 2014. The Commonwealth was prepared to try this case in
early December. Our witnesses were ready, willing, and able. I
was prepared as well.
Now we come here at sentencing after Christmas, after the
holidays, and he comes in here, because the prosecutor doesn’t
say what he likes and doesn’t appreciate what I say about him –
which is the truth – and now he wants to withdraw his plea.
He’s playing games with the system. That’s what he’s doin’.
N.T. Sentencing, 1/26/16, at 7-11 (some paragraph breaks omitted).
The next day, on January 27, 2016, the Commonwealth filed a “Motion
for Reconsideration of Defendant Being Permitted to Withdraw Guilty Plea,”
requesting the court to rescind its Order granting Appellant’s Motion to
Withdraw Guilty Plea based on Commonwealth v. Carrasquillo, 115 A.3d
1284 (Pa. 2015), and hold an immediate sentencing hearing.
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The court held a hearing on the Commonwealth’s Motion, during which
Appellant’s counsel made the following statement:
Okay. And Your Honor, with respect to the Commonwealth’s
position in their petition to not allow him to withdraw his guilty
plea, I think that there is an argument to be made in this
particular case that differentiates the case before that’s binding
precedent.
I admit that it’s fully binding precedent from the Superior
Court[4] that the Court must follow; however, factually different
in this case is, the Court did allow [Appellant] to withdraw his
plea. Is that a distinction without a difference? I don’t know.
***
… If the binding precedent weren’t there and the old law existed
then the blanket assertion of innocence would be enough to
allow him to withdraw his guilty plea. But with this new – with
this new Superior Court ruling, that changes the game, for lack
of a better way of putting it.
So I acknowledge that case law. And in terms of my argument,
my argument remains that which the Court can consider, which
is his blanket innocence claims.
N.T. Hearing, 2/8/16, at 3-5.
The court granted the Commonwealth’s Motion and informed Appellant
that his “plea is still valid and … on the record and we’re going to proceed to
4
The only case raised in the Commonwealth’s Motion for Reconsideration,
which defense counsel refers to as a “petition”, was the Pennsylvania
Supreme Court’s case of Commonwealth v. Carrasquillo, 115 A.3d 1284
(Pa. 2015). Accordingly, it appears that counsel misspoke when he referred
to a Superior Court case.
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sentencing.” Id. at 6.5 The court then sentenced Appellant to an aggregate
term of four-and-a-half to nine years’ incarceration,6 and instructed
Appellant’s attorney to submit a memorandum with respect to credit for time
served.
On February 16, 2016, Appellant filed a Post-Sentence Motion seeking
credit for time served, RRRI eligibility, and a modification of his sentence
based on a claim of excessiveness. On May 9, 2016, in a written Opinion,
the court denied the Motion for downward modification, but granted
Appellant’s request for RRRI eligibility at 5/6’s of his sentence (i.e., at 45
months) and gave him credit for time served.
Appellant timely appealed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant presents the following issues for review:
5
The Commonwealth withdrew the Resisting Arrest and Escape charges
(counts 7 and 9).
6
Appellant was sentenced as follows: Count 1, Unlawful Delivery of a
Controlled Substance - one to two years; Count 2, Possession With Intent to
Deliver a Controlled Substance (“PWID”) - two and a half to five years;
Count 3, PWID - two to four years; Count 4, Unlawful Possession of Drug
Paraphernalia, and Count 5, Unlawful Delivery of Drug Paraphernalia -
twelve months of state supervision; Count 6, Criminal Use of a
Communication Facility - one to two years. Count 1 and count 6 were
ordered to run concurrent to one another, and concurrent to Counts 2 and 3,
2 and 3 to run consecutive to one another; Counts 4 and 5 consecutive to
each other and consecutive to Counts 2 and 3, for an aggregate of four-and-
a-half to nine years in state incarceration with a consecutive term of 24
months’ state supervision.
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1. Whether the trial court erred in re-instating [Appellant’s]
guilty plea when the trial court found a fair and just reason
for the withdrawal of the guilty plea at the time the court
granted his request to withdraw his plea?
2. Whether the trial court excessively sentenced [Appellant] to
4½ to 9 years in a state correctional institute when
[Appellant’s] individual circumstances suggest a mitigated
range sentence would appropriately protect the public and
meet the goals of rehabilitation.
Appellant’s Brief at 5.
Appellant first avers that the trial court should have allowed him to
withdraw his guilty plea because he “provided a fair and just reason for the
withdrawal: the irrelevant and prejudicial comments by the Commonwealth
and his factual innocence.” Appellant’s Brief at 10.7
The standard of review that we employ in challenges to a trial court's
decision regarding a presentence motion to withdraw a guilty plea is well-
settled. “A trial court's decision regarding whether to permit a guilty plea to
be withdrawn should not be upset absent an abuse of discretion.”
Commonwealth v. Elia, 83 A.3d 254, 261-62 (Pa. Super. 2010).
Pa.R.Crim.P. 591(A) provides that, in its discretion, a trial court may
grant a motion for the withdrawal of a nolo contendere or guilty plea at any
7
Appellant also argues that the trial court’s “‘clawing back’ the guilty plea
cannot be allowed based upon this particular record.” Appellant’s Brief at
16. Appellant has not provided any argument or case law to support his
implication that the trial court was prohibited from reconsidering its prior
day’s ruling on motion from the Commonwealth.
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time before the imposition of sentence. The Pennsylvania Supreme Court
has interpreted the rule as follows:
There is no absolute right to withdraw a guilty plea; trial courts
have discretion in determining whether a withdrawal request will
be granted; such discretion is to be administered liberally in
favor of the accused; and any demonstration by a defendant of a
fair-and-just reason will suffice to support a grant, unless
withdrawal would work substantial prejudice to the
Commonwealth.
Carrasquillo, 115 A.3d at 1291-92 (citing Commonwealth v. Forbes, 299
A.2d 268 (Pa. 1973)).
Although “discretion is to be administered liberally in favor of the
accused,” our Supreme Court has rejected the application of a bright-line
rule that “prohibited, as a matter of law, trial courts from assessing the
credibility of an assertion of innocence made in the context of a presentence
motion to withdraw a guilty plea.” Carrasquillo, supra at 1293 (Stevens,
J., concurring). In affirming the trial court’s refusal to allow the defendant
to withdraw his plea, the Carrasquillo majority observed,
[T]he proper inquiry on consideration of such a withdrawal
motion is whether the accused has made some colorable
demonstration, under the circumstances, such that permitting
withdrawal of the plea would promote fairness and justice. The
policy of liberality remains extant but has its limits, consistent
with the affordance of a degree of discretion to the common
pleas courts.
Id. at 1292.
In Carrasquillo, the Court noted that the determination of whether
there is a “fair and just reason” to permit the pre-sentence withdrawal
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request should be based on the totality of the circumstances attendant at
the time of the request, including the timing of the assertion of innocence,
the statements made by the defendant in association with his declaration of
innocence, and the plausibility of the defendant’s statements in light of the
evidentiary proffer made by the Commonwealth at the plea hearing. See id.
at 1286, 1292-93.
In Commonwealth v. Blango, 150 A.3d 45 (Pa.Super. 2016), this
Court applied Carrasquillo and concluded that the trial court had not
abused its discretion in declining to permit the defendant to withdraw his
guilty plea. We noted that, in light of the defendant’s trial testimony against
his co-defendants admitting his role in the offense and the timing of his
motion, which was made immediately after learning of the Commonwealth’s
sentencing recommendation, the defendant’s assertion of innocence was
“implausible” and “instead was ‘an attempt to manipulate the system.”
Blango, 150 A.3d at 48, 52.
Most recently, in Commonwealth v. Islas, __ A.3d __, 2017 PA
Super 43, 2017 WL 727254 (Pa. Super. filed Feb. 24, 2017), this Court
applied Carrasquillo and concluded that the trial court had erred in denying
the defendant’s pre-sentence motion to withdraw his guilty plea. We
concluded that, unlike the defendants in Carrasquillo and Blango, Islas’
assertion of innocence was “not ‘mere, bare, or non-colorable,’ but instead
was ‘at least plausible.’” Id. at *5. We noted that Islas had entered his
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plea three days before trial was set to begin and before a jury had been
selected. He had moved to withdraw his plea over one month after its entry,
when new counsel entered his appearance, and almost two months before
sentencing. Id. We also observed that Islas had maintained his innocence
from the beginning, even though we noted further that a conclusion that a
claim of innocence is likely or unlikely to succeed at trial is “irrelevant” to the
consideration of whether the trial court properly denied the motion to
withdraw. Id.
Although each case presents its own unique set of facts, the instant
case is more akin to Blango and Carrasquillo than to Islas. Unlike Islas,
the timing of Appellant’s plea and of his request to withdraw his plea support
a conclusion that the trial court did not abuse its discretion in denying
Appellant’s motion.
Despite the case being initially listed in 2014, Appellant entered his
guilty plea on the day trial was set to begin in December 2015. Seven
weeks after the entry of the guilty plea, on the day of sentencing, the
Commonwealth made a passionate argument regarding Appellant’s crimes
before informing the court the sentence it was recommending. It was only
after hearing the recommended sentence that Appellant’s counsel requested
the withdrawal of the plea. See N.T., 12/26/16, at 7-8. Thus, unlike Islas,
the timing of Appellant’s request to withdraw his plea, i.e., the day of
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sentencing after hearing the recommended sentence, lends support to the
trial court’s decision to deny the withdrawal motion.
We also note that Appellant pled guilty right before the parties were to
select the jurors and begin the trial, and then withdrew the plea seven
weeks later when the threat of an imminent trial had passed. It is
reasonable to assume that he was pleading guilty and withdrawing the plea
as a means to manipulate the court proceedings.
In addition, Appellant’s assertion of innocence is lacking in plausibility.
Appellant’s discomfort with hearing the prosecutor speak about the general
negative effects of drug dealing on the public does not equate to a fair and
just reason for the pre-sentence withdrawal of a guilty plea. Moreover,
Appellant’s observation that he had been allowed to withdraw a plea in a
prior case that then resulted in a jury finding him not guilty does not provide
a “colorable demonstration, under the circumstances, such that permitting
withdrawal of the plea would promote fairness and justice” in this case.
Carrasquillo, supra at 1292.
The evidentiary proffer made by the Commonwealth at the plea
hearing was extensive and undisputed. We, thus, conclude that in light of
the timing, implausibility and evidentiary proffer, the trial court properly
“assess[ed] the credibility of [Appellant’s] assertion of innocence,” and did
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not abuse its discretion in refusing to allow Appellant to withdraw his guilty
plea.8 Id. at 1293.
Appellant next challenges the length of the term of his incarceration,
averring that it is excessive in light of the mitigating factors he presented to
the court and his rehabilitative needs. He also avers that the trial court
failed to put its reasons for the sentence on the record at the time of
sentencing, as required by 42 Pa.C.S. § 9721(b).
Our standard of review in assessing whether a trial court has erred in
fashioning a sentence is well settled.
[T]he proper standard of review when considering whether to
affirm the sentencing court's determination is an abuse of
discretion. [A]n abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not have abused its
discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias, or ill-will. ... An abuse of discretion
may not be found merely because an appellate court might have
reached a different conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or
such lack of support so as to be clearly erroneous.
Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012),
quoting Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007).
8
Appellant avers that the Commonwealth has not shown “substantial
prejudice” so as to support the court’s decision to deny the withdrawal
request. In light of Appellant’s failure to demonstrate a fair and just reason
to support the withdrawal of his plea, we need not examine the prejudice
suffered by the Commonwealth. See Carrasquillo, supra at 1291-92
(noting that “any demonstration by a defendant of a fair and just reason will
suffice to support a grant, unless withdrawal would work substantial
prejudice to the Commonwealth”).
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42 Pa.C.S. § 9721 provides, in relevant part:
(a) General rule.--In determining the sentence to be imposed
the court shall, except as provided in subsection (a.1),
consider and select one or more of the following
alternatives, and may impose them consecutively or
concurrently:
(1) An order of probation.
(2) A determination of guilt without further penalty.
(3) Partial confinement.
(4) Total confinement.
(5) A fine.
(6) County intermediate punishment.
(7) State intermediate punishment.
***
(b) General standards.--In selecting from the alternatives set
forth in subsection (a), the court shall 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. The court shall also consider any guidelines for
sentencing and resentencing adopted by the Pennsylvania
Commission on Sentencing and taking effect under section 2155
(relating to publication of guidelines for sentencing, resentencing
and parole and recommitment ranges following revocation).1 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.
****
42 Pa. C.S. § 9721(a), (b).
The court “is not required to parrot the words of the Sentencing Code,
stating every factor that must be considered under Section 9721(b),
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[however,] the record as a whole must reflect due consideration by the court
of the statutory considerations” at the time of sentencing. Commonwealth
v. Coulverson, 34 A.3d 135, 145 (Pa. Super. 2011) (citation omitted). A
sentencing court’s indication that it has been informed by a presentence
report can satisfy the requirement of placing reasons for imposing the
sentence on the record. Commonwealth v. Burns, 765 A.2d 1144 (Pa.
Super. 2000).
In addition, “[o]ur 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), citing Commonwealth v. Devers, 546 A.2d 12, 18-19 (Pa. 1988).
In the instant case, the court acknowledged on January 26, 2016, at
the sentencing hearing that it had the PSI report. Thirteen days later, after
the reinstatement of Appellant’s guilty plea, the court continued the
sentencing proceeding that had begun on January 26, 2016, with Appellant’s
counsel requesting that the PSI be “incorporated” and acknowledging that
the judge had read both the PSI report and Appellant’s presentence
mitigation memorandum. See N.T., 2/8/16, at 8. We conclude that
because the trial court acknowledged the PSI report at the time of
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sentencing, the court satisfied the requirement for placing the reasons on
the record in accordance with Burns, Ventura, and Devers, supra.
Appellant next avers that his aggregate sentence of 4½ to 9 years’
incarceration is excessive. Appellant concedes that his sentence for each
conviction falls within the guidelines provided for the individual crimes, but
baldly avers that “his sentence violates several specific goals of the
Sentencing Code, specifically, that his sentence does not comport with the
protection of the public, gravity of the offense, and his rehabilitative needs.”
Appellant’s Brief at 14, 28. He argues that a “sentence within the highest
standard range (27-33 months), with all other sentences running
concurrent, would protect the public, equate with the gravity of the offense
in relation to the impact on the community, and provide for [Appellant’s]
rehabilitative needs.” Id. at 30-31.9
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Griffin, 65 A.3d 932,
935 (Pa. Super. 2013) (citation omitted). Rather, Appellant must first meet
9
As noted above in footnote 6, the sentences imposed on Count 1 and count
6 were ordered to run concurrent to one another, and concurrent to Counts
2 and 3, and sentences on Courts 2 and 3 were to run consecutive to one
another; sentences imposed on Counts 4 and 5 were to run consecutive to
each other and consecutive to Counts 2 and 3, for an aggregate of 4½ to 9
years in state incarceration, with a consecutive term of 24 months’ state
supervision. Appellant is RRRI eligible after serving 45 months’
incarceration.
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his burden of satisfying the following four elements before we will review the
discretionary aspect of a sentence:
(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. 720; (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.[] § 9781(b).
Id. (quoting Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006)).
Here, Appellant met each of the above elements by filing a timely
Notice of Appeal, properly preserving the issue, and including in his Brief a
Statement of Reasons Relied Upon for Allowance of Appeal pursuant to
Pa.R.A.P. 2119(f) (“Rule 2119(f) Statement”). Appellant’s assertion in his
Rule 2119(f) statement that his aggregate sentence “does not comport with
the protection of the public, gravity of the offense, and his rehabilitative
needs,” raises a substantial question. Appellant’s Brief at 14. See
Provenzano, supra, at 154 (stating “we cannot look beyond the statement
of questions presented and the prefatory 2119(f) statement to determine
whether a substantial question exists.”); Commonwealth v. Raven, 97
A.3d 1244, 1253 (Pa. Super. 2014) (holding that “an excessive sentence
claim—in conjunction with an assertion that the court failed to consider
mitigating factors—raises a substantial question.” (citing Commonwealth v.
Mouzon, 812 A.2d 617, 627 (Pa. 2002)); Commonwealth v. Caldwell,
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117 A.3d 763, 770 (Pa. Super. 2015), appeal denied, 126 A.3d 1282 (Pa.
2015) (concluding that an “[a]ppellant's challenge to the imposition of his
consecutive sentences as unduly excessive, together with his claim that the
court failed to consider his rehabilitative needs upon fashioning its sentence,
presents a substantial question.”).10
Accordingly, we will address the discretionary aspects of the sentence
raised in this appeal.
In reviewing the discretionary aspects of a sentence, we are guided by
the following standard:
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.
Caldwell, supra, at 770 (citation omitted).
With respect to the imposition of consecutive versus concurrent
sentences, “[l]ong standing precedent of this Court recognizes that 42
Pa.C.S. section 9721 affords the sentencing court discretion to impose its
10
Cf. Commonwealth v. Williams, 562 A.2d 1385, 1387-88 (Pa. Super.
1989) (concluding that where an appellant “has failed to include in [the Rule
2119(f)] statement any specific, articulable reasons why her sentence raises
doubts that the sentencing scheme as a whole has been compromised, ...
and, in effect, [the] appellant asks this Court to substitute its judgment
regarding an appropriate sentence for that of [the sentencing judge], such a
statement does not raise a substantial question that the sentence imposed
was in fact inappropriate.”)
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sentence concurrently or consecutively to other sentences being imposed at
the same time or to sentences already imposed.” Commonwealth v.
Gonzalez-Dejusus, 994 A.2d 595, 598 (Pa. Super. 2010) (citation
omitted). See also Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa.
Super. 1995) (explaining that a defendant is not entitled to a “volume
discount” for his or her crimes).
Here, the sentencing court made the following observations in support
of its sentence:
. . . Defendant has seen firsthand what crack cocaine can do to
families. Defendant’s father began using crack cocaine when
Defendant was 8 years old and he became abusive toward the
family. Starting at age 14, Defendant began accumulating
adjudications and convictions for possessing with intent to
deliver various drugs.[11]
On the day he was arrested, Defendant had close to $8500 in
drugs and cash. As the Commonwealth indicated, he profits
from the drug trade. . . . Defendant is a victim of a
multigenerational cycle of growing up without a father, a mother
in and out of jail[,] and drugs present in his life. Somehow, in
spite of it all, it appears he has managed to not become a drug
addict himself so his children as least do not have to bear the
burden of a drug addicted, abusive father.
However, Defendant’s choices have led him to drug dealing and
for this he must be punished. His sentence reflects the crimes
he committed and the sentence on each count is within the
standard guidelines. In fact, the statutory limit on possession
with intent to deliver is 120-240 months. Defendant was
sentenced to 30 to 60 months on Count 2 and 24 to 48 months
11
Appellant was born 11/10/82, and was 31 years old when charged with
the instant offenses.
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on Count 3, both of which are well below the statutory maximum
and within the standard range guideline.
***
The Court considered the statements from both the
Commonwealth and Defense Counsel. We reviewed the pre-
sentence investigation. All of the evidence indicates that while
Defendant has not been convicted of violent crimes, he has been
a source of hard drugs in this community which he knows all too
well, wreak havoc upon those addicted to drugs and their
families who suffer the consequences of drug addiction.
Trial Ct. Op., dated 5/9/16, at 3-4 (unpaginated).12
Although Appellant avers that “his sentence does not comport with the
protection of the public, gravity of the offense, and his rehabilitative needs,”
he has not provided any reference to the record or to the guidelines to
support his assertion that the court abused its discretion. As noted,
Appellant had been selling drugs since he was 14 years old, and despite five
prior convictions for PWID, he continued to disregard the law by selling
cocaine and heroin. His contention that his aggregate sentence is excessive
because “there were no specific victims identified or alleged in this case,
indicating no need to protect any specific individual,” demonstrates that
Appellant fails to comprehend the gravity of his offenses and the impact that
his vocation as a drug dealer has on communities and families. His
reasoning does not support his averment that the court abused its discretion
in imposing consecutive rather than concurrent sentences. Appellant
12
The court denied Appellant’s request for a reduction in sentence; however,
it granted his request for RRRI eligibility and credit for time served.
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committed numerous crimes of a serious nature for which he is not entitled
to a “volume discount.” Hoag, supra, at 1114.
Moreover, as indicated in its Memorandum Opinion, the sentencing
court did consider Appellant’s circumstances before imposing sentences that
fall, as Appellant concedes, within the standard range of the guidelines. We
conclude that the trial court did not ignore or misapply the law, and did not
exercise its judgment for reasons of partiality, prejudice, bias or ill will, or
arrive at a manifestly unreasonable decision. Accordingly, the trial court did
not abuse its discretion in imposing Appellant’s aggregate sentence of 4½ to
9 years’ incarceration.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/5/2017
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