Com. v. Young, K.

J-A19015-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEENAN YOUNG :
:
Appellant : No. 131 MDA 2022
Appeal from the Judgment of Sentence Entered October 26, 2021
In the Court of Common Pleas of Huntingdon County Criminal Division at
No(s): CP-31-CR-0000256-2020
BEFORE: BOWES, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED: SEPTEMBER 2, 2022
Keenan Young appeals nunc pro tunc from the judgment of sentence
imposed after he pled guilty to conspiracy and criminal use of a communication
facility. We affirm.
In January of 2020, officers from the Department of Corrections (“DOC”)
intercepted telephone communications between Appellant, an inmate at State
Correctional Institution (“SCI”) Smithfield, and Nicole M. Pena (“the civilian”).
By listening to the recorded conversations, officers learned that Appellant and
the civilian were planning to introduce two hundred strips of buprenorphine
(“suboxone”), a Schedule III controlled substance, into SCI Smithfield during
a contact visit. Officers obtained and executed a search warrant upon the
civilian’s residence. The civilian was present for the execution of the warrant
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* Former Justice specially assigned to the Superior Court.
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and directed officers to the suboxone that she had acquired for Appellant. 1
Appellant later confessed to his role in the plot and was charged with criminal
use of a communications facility, conspiracy, and related charges.
On April 9, 2021, Appellant entered an open guilty plea to conspiracy to
possess contraband and criminal use of a communications facility. In
exchange, the Commonwealth withdrew the remaining charges. The trial
court deferred sentencing and ordered the Department of Corrections to
produce Appellant’s disciplinary record.
On October 19, 2021, Appellant proceeded to sentencing. During his
allocution, Appellant advocated for leniency, explaining the efforts he had
made to fight his drug addictions and rehabilitate himself since the conspiracy
was uncovered. Trial counsel also requested a mitigated range sentence
based on Appellant’s efforts at self-improvement. After reviewing the
sentencing guidelines and Appellant’s disciplinary report, the court sentenced
Appellant to standard ranges sentences of two to four years of incarceration
for the conspiracy and a consecutive one to two years for the criminal use of
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1 At the time of the seizure, the civilian had not yet procured the full amount
of suboxone for Appellant. The certified record does not reveal the exact
amount of suboxone recovered. However, one box containing twenty-six foil
packets of suboxone was submitted to the Harrisburg Regional Laboratory for
drug identification testing. See Lab Report H20-01416-1, 4/8/20, at 1.
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a communications facility.2 The court also granted Appellant’s request for a
drug treatment program recommendation and ordered the sentences to run
consecutive to any sentence Appellant was already serving.3 On October 26,
2021, the court amended its sentencing order, restructuring the two
sentences so that they would run concurrently to each other, but consecutive
to the prior sentence Appellant was still serving.
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2 While the sentencing guidelines form prepared for the hearing listed
Appellant as having a repeat felon (“RFEL”) prior record score (“PRS”), the
court agreed with the parties that Appellant’s actual prior record score was
five and imposed a standard range sentence in accordance with the adjusted
prior record score. See N.T. Sentencing Hearing, 2/4/22, at 5-6 (indicating
that a standard range sentence for conspiracy would be twenty-four to thirty
months and twelve to eighteen months for the communication charge); see
also 204 Pa.Code. § 303.16(a). In its opinion, the trial court repeated that
Appellant possessed a PRS of five and received a standard range sentence.
See Trial Court Opinion, 3/2/22, at unnumbered 1. However, the court also
provided the standard range sentences for a PRS of RFEL, which, if applicable,
would mean that Appellant received a sentence below the sentencing
guidelines. Id. (summarizing the applicable standard range as thirty-five to
forty-five months and twenty-four to thirty-six months, respectfully). This
discrepancy appears to be a clerical error, perhaps influenced by the
erroneous sentencing guideline form. Regardless, we cannot consider the
potential impact of this typographical error since Appellant has not challenged
the calculation of his PRS or the applicable sentencing guidelines. See
Commonwealth v. Shreffler, 249 A.3d 575, 583 (Pa.Super. 2021) (finding
that a challenge to the calculation of a PRS goes to the discretionary aspects,
not legality of sentence); see also Commonwealth v. Mont, 266 A.3d 646(Pa.Super. 2021) (non-precedential memorandum) (citing Commonwealth
v. Archer, 722 A.2d 203, 211 (Pa.Super. 1998) (explaining that even where
a defendant alleges that the trial court’s sentence was affected by a
miscalculation of guidelines, the claim involves the discretionary aspects of a
sentence and must be properly preserved.)).
3 At the time of sentencing Appellant was serving a six-to-twelve-year
sentence of incarceration on an unrelated conviction. See N.T. Sentencing
Hearing, 10/19/21, at 8.
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Appellant filed a timely post-sentence motion requesting that the court
reconsider running his sentence concurrently to the prior sentence he was also
serving due to his efforts at self-improvement, the minor impact of his crime,
and his rehabilitation needs. However, the court denied the motion. After a
brief remand so that Appellant’s direct appeal rights could be reinstated nunc
pro tunc, this appeal followed. Both Appellant and the trial court complied
with the mandates of Pa.R.A.P. 1925.
Appellant presents the following issue for our review: “Was the
sentence imposed by the trial court manifestly excessive, when it imposed a
consecutive sentence and failed to adequately consider [Appellant’s] efforts
at self-improvement and self-rehabilitation, the lack of personal harm caused
by his actions, and his rehabilitative needs?” Appellant’s brief at 5.
Specifically, Appellant contends that he received a manifestly excessive
sentence due to the trial court’s failure to consider mitigating factors before
running his sentences consecutively to a prior sentence Appellant was already
serving. See Appellant’s brief at 11. The law is well-settled that sentencing
is within the discretion of the trial court and should not be disturbed absent a
clear abuse of discretion. See Commonwealth v. Antidormi, 84 A.3d 736,
760 (Pa.Super. 2014). Furthermore, challenges to the discretionary aspects
of a sentence do not automatically entitle an appellant to appellate review.
See Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa.Super. 2018).
Rather, an appellant must meet certain procedural prerequisites before an
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appellate court can entertain such a challenge. Specifically, we engage in a
four-part analysis to determine whether: (1) the appeal is timely; (2) the
issue has been preserved; (3) Appellant’s brief includes a concise statement
of the reasons relied upon for allowance of appeal with respect to discretionary
aspects of sentence pursuant to Pa.R.A.P. 2119(f); and (4) the concise
statement raises a substantial question that the sentence is inappropriate
under the sentencing code. See Commonwealth v. Austin, 66 A.3d 798,
807-08 (Pa.Super. 2013). If each of these requirements is met, we will
proceed to a determination on the merits. Id.Appellant filed a timely appeal and post-sentence motion, as well as a
concise statement challenging the court’s decision to run his sentences
consecutively and inadequate consideration of mitigating factors. While
Appellant failed to include a Pa.R.A.P. 2119(f) statement in his brief, the
Commonwealth has not objected to its omission and its absence does not
significantly hamper our review. Accordingly, we overlook the procedural
defect and consider whether Appellant has raised a substantial question. See
Commonwealth v. Gambal, 561 A.2d 710 (Pa. 1988) (holding that if the
Commonwealth does not file an objection, this Court may either enforce the
procedural requirement or ignore the procedural defect if the failure to file a
Rule 2119(f) statement does not significantly hamper the Court’s ability to
determine whether a substantial question exists).
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Appellant contends that he has raised a substantial question because
the trial court imposed a consecutive sentence of incarceration without
adequately considering the efforts Appellant made at self-improvement, the
lack of personal harm caused by his actions, and his rehabilitative needs. See
Appellant’s brief at 5. “[T]he imposition of consecutive, rather than
concurrent, sentences may raise a substantial question in only the most
extreme circumstances[.]” Commonwealth v. Austin, 66 A.3d 798, 808
(Pa. Super. 2013) (citation omitted). Nevertheless, this Court has held that
“an excessive sentence claim – in conjunction with an assertion that the court
failed to consider mitigating factors – raises a substantial question.”
Commonwealth v. White, 193 A.3d 977, 983 (Pa.Super. 2018). Therefore,
viewing Appellant’s challenge to the imposition of consecutive sentences as
manifestly excessive, together with his claim that the court failed to consider
certain mitigating factors and his rehabilitative needs, we conclude that
Appellant has presented a substantial question. Accordingly, we will proceed
to the merits of his sentencing claim.
The following principles apply to our substantive review of Appellant’s
claim. “When reviewing sentencing matters, this Court must accord the
sentencing court great weight as it is in the best position to view the
defendant’s character, displays of remorse, defiance or indifference, and the
overall effect and nature of the crime.” Commonwealth v. Ventura, 975
A.2d 1128, 1134 (Pa.Super. 2009). “We cannot re-weigh the sentencing
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factors and impose our judgment in the place of the sentencing court.”
Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009). Instead,
we review the trial court’s determination for an 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.
Antidormi, supra at 760.
A trial court’s sentence “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.” 42 Pa.C.S. § 9721(b). “When imposing sentence, a
court is required to consider the particular circumstances of the offense and
the character of the defendant. In considering these factors, the court should
refer to the defendant’s prior criminal record, age, personal characteristics
and potential for rehabilitation.” Antidormi, supra at 761 (citations and
quotation marks omitted). Long-standing precedent of this Court recognizes
that § 9721(a) affords the sentencing court discretion to impose its sentence
concurrently or consecutively to other sentences being imposed at the same
time or to sentences already imposed. See Commonwealth v. Marts, 889
A.2d 608, 612 (Pa. Super. 2005).
Pursuant to 42 Pa.C.S. § 9781(c), we can vacate and remand only if we
find that (1) the court intended to sentence within the guidelines, but “applied
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the guidelines erroneously;” (2) a sentence was imposed within the 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.” 42
Pa.C.S. § 9781(c). Appellant concedes that his sentence fell within the
guidelines. See Appellant’s brief at 12. Therefore, it must be affirmed unless
it is clearly unreasonable. While reasonableness is not defined in the statute,
it “commonly connotes a decision that is ‘irrational’ or ‘not guided by sound
judgment.’” Commonwealth v. Walls, 926 A.2d 957, 963 (Pa. 2007).
Appellant argues that the court relied too heavily on the amount of
contraband that he was planning on bringing into the prison, rather than the
lesser amount that was found and the fact that his plan was thwarted before
completion. See Appellant’s brief at 11. Additionally, Appellant alleges that
the court placed improper emphasis on his disciplinary record, ignoring
Appellant’s prompt confession, lack of harm Appellant’s actions caused, and
the efforts Appellant has taken to rehabilitate himself since his arrest on these
charges. Id. at 13.
Our review of the sentencing transcript and the court’s Rule 1925(a)
opinion reveals that the court thoroughly reviewed the sentencing guidelines,
Appellant’s disciplinary record, Appellant’s allocution, and the attorney
arguments before imposing Appellant’s sentence. See N.T. Sentencing,
2/4/22, at 2-6 (trial counsel explaining Appellant’s inmate misconduct report
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and detailing Appellant’s efforts to participate in drug counseling and other
rehabilitation programming); id. at 6-7 (the Commonwealth requesting a
standard range sentence because, but for the intervention of the DOC
Appellant would have brought a substantial amount of drugs into the prison);
id. at 8-9 (Appellant accepting responsibility for his actions and describing the
efforts he had undertaken to overcome his drug addiction and difficult
upbringing); see also Trial Court Opinion, 3/2/22, at 1-2. Indeed, when
imposing sentence, the court acknowledged that it was “impressed by
[Appellant’s] presentation” and, as a result, recommended Appellant for the
internal drug and alcohol program. Id. at 9-10.
Contrary to Appellant’s arguments, the record reflects that the trial court
was fully informed of all the mitigating factors at play herein. The sentencing
court merely chose not to give the mitigating factors as much weight as
Appellant requested. We cannot re-weigh the sentencing factors and impose
our judgment in the place of the sentencing court. Macias, supra at 778.
Appellant has failed to convince us that the court abused its discretion in
imposing Appellant’s sentence consecutively to a prior sentence he was
already serving. Accordingly, we affirm.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/02/2022
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