Com. v. Bradshaw, S.

J-A05045-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEPHEN BRADSHAW :
:
Appellant : No. 813 MDA 2021
Appeal from the Judgment of Sentence Entered December 23, 2019
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0000004-2019
BEFORE: OLSON, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: MARCH 16, 2022
Appellant Stephen Bradshaw appeals from the judgment of sentence
entered in the Court of Common Pleas of Lycoming County on December 23,
2019, following his guilty plea.1 We affirm.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 The trial court docket indicates that Appellant was sentenced on December
23, 2019. Appellant filed a timely post-sentence motion on January 2, 2020,
which was denied on April 7, 2020. On October 16, 2020, Appellant filed a
timely pro se PCRA petition. Counsel was appointed, and an amended petition
was filed on March 29, 2021. On June 2, 2021, the trial court granted
Appellant’s PCRA petition and reinstated Appellant’s direct appeal rights nunc
pro tunc. Counsel for Appellant filed a notice of appeal on June 23, 2021, in
which counsel erroneously had stated that the appeal was from the “Order
entered on May 25, 2021,” granting nunc pro tunc relief, rather than from the
December 23, 2021, judgment of sentence.
By order of July 13, 2021, Appellant was directed to show cause as to why
the appeal should not be quashed as Appellant is not an aggrieved party.
Counsel for Appellant filed a motion to amend the notice of appeal in the trial
court on July 14, 2021. The trial court granted the motion on July 20, 2021,
and the amended notice of appeal was forwarded to this Court. The amended
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The trial court set forth the relevant facts and procedural history herein
as follows:
By way of background, Appellant was charged with twenty
counts related to the possession and delivery of controlled
substances and the criminal use of communication facilities.1 On
October 4, 2019, Appellant entered an open guilty plea to four
counts of delivery of heroin, two counts of delivery of cocaine, and
four counts of criminal use of a communication facility, arising out
of incidents that occurred on November 14, 2018; November 20,
2018; December 3, 2018; and December 10, 2018.2 Appellant
admitted that on November 14, 2018 and November 20, 2018 he
delivered heroin to a third party and utilized a cellular telephone
to arrange the transactions. Appellant also admitted that on
December 3, 2018 and December 10, 2018, he delivered heroin
and cocaine to a third person utilizing a cellular telephone to
arrange the transactions.
On December 23, 2019, the court sentenced Appellant to
undergo incarceration in a state correctional institution for an
aggregate term of eight (8) to twenty (20) years, which consisted
of two (2) to four (4) years for each delivery of heroin to be served
consecutively to each other.3
Appellant filed a motion for reconsideration of sentence. He
alleged that his sentence was excessive because: the
Commonwealth never made an offer; the court failed to provide
sufficient weight to Appellant's good behavior while incarcerated;
despite Appellant's minimization of his mental health and
substance use disorders, Appellant actually suffers from such; the
court did not accord sufficient weight to the fact that Appellant
was never convicted of any crimes of violence or of a sexual
nature; and Appellant pled guilty and did not proceed to trial. In
____________________________________________
notice of appeal states that the appeal is “from the Judgment of Sentence on
December 23, 2019, whereby his direct appeal rights were reinstated nunc
pro tunc by order entered on May 25, 2021 [sic].” See Pa.R.A.P. 1701(b)(1)
(The trial court may take such action to preserve the status quo including
“correct formal errors in papers relating to the matter”). Counsel filed a copy
of the amended notice of appeal with this Court on July 22, 2021, and a
response to the show-cause order on July 23, 2021, documenting the steps
taken in the trial court.
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an Opinion and Order entered on April 7, 2020, the court denied
Appellant's motion for reconsideration of sentence.
Although Appellant wished to appeal his sentence, no appeal
was filed within thirty (30) days due to a breakdown in
communication between Appellant and his plea counsel due at
least in part to the pandemic. Through PCRA proceedings,
however, the court reinstated Appellant's direct appeal rights nunc
pro tunc in an order dated May 25, 2021 and docketed on June 2,
2021.
____
1 35 P.S.A. § 780-113(a)(16),(30); 18 Pa. C.S.A. § 7512.
2 In a prior Opinion and Order, the court incorrectly stated that
the dates were November 3, 10, 14 and 20.
3 On each of the remaining counts of delivery of cocaine and
criminal use of a communication facility, the court imposed a
concurrent sentence of one (1) to three (3) years’ incarceration.
Trial Court’s Opinion in Support of Order in Compliance with Rule 1925(a) of
the Rules of Appellate Procedure, filed September 21, 2021, at 1-2.
Following the reinstatement of his direct appeal rights, Appellant filed a
timely notice of appeal on June 23, 2021. On June 29, 2021, the trial court
entered its Order directing Appellant to file a concise statement of errors
complained of on appeal, and Appellant filed his Concise Statement of Matters
Complained of on Appeal on July 20, 2021. The trial court filed its Opinion
pursuant to Pa.R.A.P. 1925(a) on September 21, 2021.
In his brief, Appellant presents the following Statement of Questions
Involved:
1. Whether the consecutive application of the sentences
renders the total sentence excessive?
2. Whether court erred in considering the national impact of
drug addiction and overdose when imposing sentence,
and speculating that individuals may have died as a
result of defendant's conduct?
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3. Whether [the] court erred in concluding that [Appellant]
needs to be warehoused and that he is incapable of
rehabilitation, essentially disregarding the mitigating
factors in the case?
Brief for Appellant at 4.2
It is well-settled that a guilty plea amounts to a waiver of all non-
jurisdictional defects and defenses; therefore, a defendant generally may
appeal only matters concerning the jurisdiction of the court, the validity of the
guilty plea, and the legality of the sentence. Commonwealth v. Morrison,
173 A.3d 286, 290 (Pa.Super. 2017). However, when a defendant pleads
guilty without an agreement as to the sentence, he or she may challenge the
discretionary aspects of the sentence imposed. Commonwealth v. Brown,
240 A.3d 970, 972 (Pa.Super. 2020).
The aforementioned issues implicate the discretionary aspects of
Appellant’s sentence. See Commonwealth v. Moury, 992 A.2d 162, 169
(Pa.Super. 2010) (stating challenge to imposition of consecutive sentences for
multiple counts of same crime and failure to consider mitigating factors
implicate the discretionary aspects of one’s sentence). Notwithstanding, such
a challenge is not appealable as of right. See 42 Pa.C.S.A. § 9781(b). Instead,
an appellant challenging the sentencing court's discretion must
invoke this Court's jurisdiction by (1) filing a timely notice of
appeal; (2) properly preserving the issue at sentencing or in a
motion to reconsider and modify the sentence; (3) complying with
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2In a letter filed with this Court’s Prothonotary on November 29, 2021, the
Commonwealth indicated that it would not be filing an appellate brief.
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Pa.R.A.P. 2119(f), which requires a separate section of the brief
setting forth “a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of a
sentence[;]” and (4) presenting a substantial question that the
sentence appealed from is not appropriate under the Sentencing
Code[.]
Commonwealth v. Akhmedov, 216 A.3d 307, 328 (Pa.Super. 2019)
(citation omitted). Following satisfaction of all four elements, this Court then
reviews the underlying discretionary aspects of sentencing issues pursuant to
an abuse of discretion standard. See id., at 328-29.
Herein, Appellant has satisfied the first three prongs by filing a timely
notice of appeal nunc pro tunc, filing a post-sentence motion seeking
reconsideration of his sentence, and including within his brief a statement
pursuant to Rule 2119(f). See Brief for Appellant at 10-11. As such, we
review Appellant’s Rule 2119(f) statement to ascertain whether he has
presented a substantial question that evinces an incongruency between the
sentence he received and the Sentencing Code as written.
Appellant argues in his Rule 2119(f) statement that his appeal presents
a substantial question because the consecutive nature of his sentences
resulted in an unreasonable, excessive minimum and maximum sentence for
nonviolent offenses. Appellant further contends the trial court considered an
impermissible factor, specifically expressing wonder about the number of drug
overdoses in 2017 nationwide, and failed to properly consider significant
mitigating factors in Appellant’s personal background when imposing its
sentence. Brief for Appellant at 10-11.
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While “[a]n allegation that the sentencing court failed to consider
mitigating factors generally does not necessarily raise a substantial question,”
see Moury, supra at 171 (citation omitted), “[a] claim that a sentencing
court ... sentenced a defendant without taking into account his ... character
and background ... raises a substantial question that the sentence is
inappropriate under the Sentencing Code.” Commonwealth v. Luketic, 162
A.3d 1149, 1162 (Pa.Super. 2017); see also Commonwealth v. Gonzalez,
109 A.3d 711, 731 n.38 (Pa.Super. 2015) (“[A] substantial question exists
when the defendant asserts both a claim of excessiveness and the trial court's
failure to take mitigating circumstances into account.”).
In light of the foregoing, we conclude that Appellant'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 and mitigating
factors and considered inappropriate factors upon fashioning its sentence,
raises a substantial question. Thus, we proceed to address the merits of his
sentencing claims. Commonwealth v. Swope, 123 A.3d 333, 340
(Pa.Super. 2015). 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).
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Notably, the trial court had the benefit of a pre-sentence investigation
(PSI) report prior to sentencing. “[W]here 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). In
addition, we can assume the court was aware of the relevant information
regarding Appellant’s character and weighed those considerations along with
mitigating statutory factors. Commonwealth v. Hill, 210 A.3d 1104, 1117
(Pa.Super. 2019) (internal quotation marks and citation omitted).
Moreover, Appellant’s sentence was within the standard range of the
Sentencing Guidelines. Such sentences are considered appropriate under the
Sentencing Code. See Moury, supra at 171. If both conditions exist
concurrently, a PSI report and standard range sentence cannot be considered
excessive or unreasonable absent some indicia clearly evidencing the
contrary. See id.
When considering the claims Appellant raises herein, the trial court
stated the following:
Appellant first contends that the sentence of the court was
excessive due to the consecutive application of the sentences. The
court cannot agree.
A sentencing judge has discretion to impose consecutive
sentences. 42 Pa. C.S.A. §9721(a)(in determining the sentence to
be imposed the court shall consider and select one or more of the
listed sentencing alternatives, and may impose them
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consecutively or concurrently.); Commonwealth v. Brown, 249
A.3d 1206, 1212 (Pa. Super. 2021)( the court has the discretion
to impose its sentences concurrently or consecutively);
Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super.
2014)(imposition of consecutive rather than concurrent sentences
lies within the discretion of the sentencing court). The appellate
court will not disturb consecutive sentences unless the aggregate
sentence is “grossly disparate” to the defendant's conduct, or
viscerally appears as patently unreasonable. Brown, supra.
“[W]here a sentence is within the standard range of the
guidelines, Pennsylvania law views the sentence as appropriate
under the Sentencing Code.” Commonwealth v. Griffin, 65 A.3d
932, 938 (Pa.Super. 2013). Furthermore, a defendant is not
entitled to a volume discount for his crimes by having all
sentences run concurrently. Zirkle, 107 A.3d at 134;
Commonwealth v. Haag, 665 A.2d 1212, 1214 (Pa.Super. 1995).
The court reviewed a Pre-Sentence Investigation (PSI)
report, a risk/needs assessment, a supervision report from prior
supervision, a social assessment prepared at the request of
defense counsel, and a report from the Lycoming County Prison.
The court also heard arguments from counsel and a statement
from Appellant.
Appellant’s prior criminal record consisted of five separate
prior convictions for the manufacture, delivery or possession with
intent to deliver (PWID) a controlled substance, ungraded
felonies; a conviction for identity theft, a felony of the third
degree; a conviction for possession of a controlled substance, an
ungraded misdemeanor; and a conviction for possession of a small
amount of marijuana, an ungraded misdemeanor. Appellant was
sentenced to probation, county prison and state sentences for his
prior convictions. Sentencing Transcript, 12/23/2019, at 3.
Nothing deterred Appellant's criminal activities or changed his
ways. He just served his sentences and then continued to traffic
controlled substances. Most, if not all, of Appellant's crime free
periods were explainable by his incarceration. Id. at 9. Moreover,
Appellant admitted that he did not need the money; he simply
wanted to “live comfortably.” Id. at 4.
Although Appellant does not consider himself an addict, he
admitted that he has used drugs for 28 years and he has no desire
to stop. Sentencing Transcript, at 4, 6.
Appellant's Prior Record Score (PRS) was five but if the
guidelines did not cap the point-score at five,4 his true score would
have been 12. The Offense Gravity Score was six for the deliveries
of heroin; it was five for the remaining offenses. Therefore, the
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standard minimum sentencing guideline ranges were 21 to 27
months for each delivery of heroin, and 12 to 18 months for each
of the remaining offenses.
The court imposed consecutive sentences of 2 to 5 years’
incarceration for each delivery of heroin, but imposed concurrent
sentences of 1 to 3 years’ incarceration for delivery of cocaine,
PWID cocaine, and the four counts of criminal use of a
communications facility. All of these sentences were in the middle
to bottom end of the standard guideline
ranges.
The court did not impose consecutive sentences due to
partiality, bias or ill will. Rather, given Appellant's prior criminal
history and opportunities for rehabilitation, it was now time to
protect the public. Enough was enough. Under the facts and
circumstances of this case, a lengthy prison sentence was
appropriate.
As the court noted in its sentencing order:
[Appellant] wrote a relatively heartfelt and very
articulate letter to the [c]ourt setting forth his regret for
what he did, his insight into the nature of his behaviors,
and how he has learned from his mistakes. The [c]ourt
can only question, however, the ability of [Appellant] to
make changes. [Appellant] has spent a significant
amount of time in jail prior to this, and the [c]ourt is left
wanting as to why [Appellant] did not reach such
conclusions about his behaviors and his future when he
spent years in prison previously. He had available
programming, and had certainly enough time to think
about where he did not want to be.
[Appellant] does present a significant danger to
the public. For over half of his life he has been involved
in distributing controlled substances. Despite escalating
sanctions[,] [Appellant] has not changed his behaviors.
[Appellant] admitted that he became addicted to the
lifestyle, and did not sell controlled substances for any
other reasons but to be more comfortable with his
financial situation. He indicated he did not need the
money, but wanted it.
The cost to the community as a result of
[Appellant's] conduct cannot be accurately measured.
To say that the community, families, mothers, children,
siblings, and even innocent individuals is significant
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would be an understatement. In 2017 alone[,] over
70,000 people died of drug overdoses in the United
States. The [c]ourt can only wonder how many
individuals, if any, died as a result of [Appellant's]
conduct. The [c]ourt can only wonder, but does not
really have to guess how many families and individuals
were destroyed as a result of [Appellant's] conduct.
The impact of the offense on the community is
significant and cannot really be put in words. Protecting
the public under these circumstances is a very high
need. [Appellant's] rehabilitation is questionable. While
[Appellant] speaks very well in connection with his
intentions, his conduct over the past twenty (20) years
belies such intentions.
This is a sad day. While many [c]ourts and
[j]udges hesitate in being entirely candid, this [c]ourt
tries to be as candid as possible. [Appellant] needs to be
warehoused. Society needs to be protected. [Appellant]
appears to this [c]ourt to be institutionalized and
incapable of changing his behaviors despite his insight.
In weighing all relevant factors, the [c]ourt has to place
the most emphasis on protecting the public.
Yes, drug dealing will be prevalent and continue to
exist, and yes others may take [Appellant's] place, but
this does not mean that [Appellant] should not be
accountable, or that the public should not be protected
from [Appellant's] conduct. In the past nineteen (19)
years [Appellant] has had eight (8) drug[-]related
convictions, and five (5) delivery or possession with
intent to deliver convictions. The [c]ourt takes no
pleasure in warehousing [Appellant]. The [c]ourt takes
no pleasure in impacting his family's life. The [c]ourt
takes no pleasure in seeing another young man become
a statistic versus an exception. Yet, as [Appellant]
properly noted, these were his choices. He did have
choices available to him[,] and he chose this route. As
defense counsel aptly notes, and unfortunately notes,
this is the price of doing business and [Appellant] was
well aware of such.[3]
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3 See Sentencing Order, filed December 30, 2019, at 2-3
(unnumbered).
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For the foregoing reasons, the court does not believe that the
imposition of some consecutive sentences in this case resulted in
an excessive sentence.
Appellant next contends that the court erred in considering
the national impact of drug addiction and overdose when imposing
sentence, and speculating that individuals may have died due to
Appellant's conduct. Again, the court cannot agree.
The court's statements in this regard were in response to the
minimization of Appellant's drug crimes. The writer of the social
assessment indicated that Appellant did not want to further the
problem of addiction in our society by continuing to sell drugs
because he knows the damage that they cause, but a lengthy state
sentence would only warehouse Appellant and perpetuate the
vicious cycle prominent in his life. Furthermore, the writer
indicated whether Appellant continues to sell drugs or not, the
replacement effect will occur and someone else will take his place.
Sentencing Transcript, at 5. Additionally, during the sentencing
hearing and in the motion for reconsideration of sentence, defense
counsel argued that a lengthy state sentence was not appropriate
because Appellant did not have a history of violent crimes or
sexual offenses; he just had a history of repeat drug offenses.
Sentencing Transcript, at 13-14; Motion for Reconsideration,
¶6(d).
While delivery of heroin is not a “crime of violence” as defined
in 42 Pa. C.S.A. §9714(g), it is a crime which negatively affects
society greatly and carries a risk of death. At the reconsideration
hearing, both defense counsel and the district attorney
acknowledged that fact. Defense counsel stated, “Yes this is a
problem. This is a horrible problem. Yes many people do die from
opiate use.” Reconsideration Transcript, 3/16/2020, at 6. The
district attorney stated:
This is an individual that has prior drug delivery
convictions, he had a prior protracted state sentence,
none of this was a deterrence leading up to the most
recent set of charges for which he's subsequently been
sentenced. The only thing devoid in this young man's
record with respect to drug crimes is a drug delivery
resulting in death, and that's fortunate for both him and
society.
Id. at 8. Moreover, appellate case law recognizes the dangers
inherent with the delivery of opiods [sic]. As the Superior Court
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noted in Minn. Fire and Cas. Co. v. Greenfield, 805 A.2d 622,
(Pa.Super. 2002), aff'd 855 A.2d 854 (Pa. 2004):
[I]t is certain that frequently harm will occur to the
buyer if one sells heroin. Not only is it criminalized
because of the great risk of harm, but in this day and
age, everyone realizes the danger of heroin use.
805 A.2d at 624; see also Commonwealth v. Burton, 234 A.3d
824, 833 (Pa.Super. 2020); Commonwealth v. Kakhankham, 132
A.3d 986, 995-96 (Pa. Super. 2015). By repeatedly selling heroin,
Appellant was playing Russian roulette with the lives of his
purchasers. See Minn. Fire and Cas. Co. v. Greenfield, 855 A.2d
854, 870-71 (Pa. 2004)(Castille, J., concurring)(the use of
illegally-purchased heroin is a modern form of Russian roulette).
No one died from his current sales because Appellant sold to
undercover officers who never were going to use the substances,
but that does not diminish the seriousness of Appellant's offenses
or the pervasive nature of Appellant's drug dealing since
approximately 1999.
Appellant asserts that the court erred in determining that
Appellant needs to be warehoused and he is incapable of
rehabilitation. He also asserts that the court erred in discounting
the effect of Appellant's mental health problems. The court found
that Appellant needs to be warehoused and his rehabilitative
needs should be accorded little weight compared to the protection
of the public because this was the sixth time that Appellant had
been convicted of delivery of controlled substances, and he
engaged in four separate deliveries of heroin. Although Appellant
wrote a heartfelt letter setting forth his regret for what he did, his
insight into the nature of his behaviors, and how he has learned
from his mistakes, his words rang hollow in light of his behaviors
and failure to change during his previous sentences of probation,
county incarceration and state incarceration. Actions speak louder
than words. Through his actions, Appellant has shown that he
cannot or will not stop dealing drugs.
Although Appellant has used controlled substances for 28
years, he has no desire to stop and does not consider himself an
addict. Appellant acknowledged that he is like a moth drawn to a
flame. What he fails to recognize is that as long as he continues
to use controlled substances and have contact with the individuals
providing those substances to him, he likely will continue to be
drawn to his lifestyle of dealing drugs.
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With respect to his mental health problems, the defense
provided little or no information regarding those problems. There
was a reference in the social assessment that as long as Appellant
can remember he has been on disability, he had vision and hearing
issues, and a mental health diagnosis but he doesn't know what
that diagnosis was. Sentencing Transcript, 12/23/2019, at 4.
Appellant also made statements at the reconsideration hearing
about his rough home life growing up with drug-addicted relatives
in Philadelphia and how due to various difficulties (including
abuse), at one point he wanted to take himself off this planet.
Reconsideration Transcript, 3/16/2020, at 10. From these
statements, one could infer that at least at one point in his life
Appellant had issues with depression and thoughts of suicide.
However, without knowing Appellant's mental health diagnoses or
the treatment he needs, if any, the court could not find that
Appellant's mental health problems outweighed the need to
protect the public in this case.
____
4204 Pa. Code §303.4(a)(3)("Offenders who do not fall into the
REVOC or RFEL categories shall be classified in a Point-Score
Category. The Prior Record Score shall be the sum of the points
accrued based on previous convictions and adjudications, up to a
maximum of five points.").
Trial Court Opinion in Support of Order in Compliance with Rule 1925(a) of
the Rules of Appellate Procedure, filed 9/21/21, at 4-10.
Following our review, we find the record unambiguously reflects the
trial court's knowledge and consideration at sentencing of the information it
highlights in its Rule 1925(a) Opinion. Appellant’s arguments to the contrary,
the consecutive nature of Appellant’s sentence did not result in an
unreasonable application of the Sentencing Guidelines.
The trial court had the benefit of a PSI and numerous other assessments
when fashioning its sentence. While it opined as to the number of drug related
deaths to which Appellant may have contributed, this musing was merely a
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small part of the trial court’s detailed explanation for the sentence it imposed
and was in response to the statements made in the social assessment which
Appellant’s counsel had provided.
In addition, the trial court considered Appellant's PSI during sentencing,
and noted, on the record, Appellant’s extensive history of drug-related
convictions. See N.T. Sentencing, 2/23/19, at 2-7. Clearly, the court was
cognizant of Appellant’s troubled background as is evident by both its
statements on the record at the sentencing hearing and its possession of a
PSI. However, it properly determined that Appellant’s admitted refusal to stop
using and selling drugs outweighed any mitigating factors for purposes of
sentencing.
Mindful that sentencing is a matter vested in the sound discretion of the
trial court, and finding no showing of manifest abuse, we conclude the trial
court did not abuse its discretion in rendering Appellant’s sentence. See
Moury, 992 A.2d at 169–70. As such, we find the trial court was within its
discretion to impose the consecutive sentence of eight (8) to twenty (20)
years’ incarceration.
Judgment of Sentence Affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/16/2022
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