June 18, 2013
COMMONWEALTH OF PENNSYLVANIA, Appellee
SILLIS WELLS, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
SILLIS WELLS, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
SILLIS WELLS, Appellant
Appeal from the Judgment of Sentence September 14, 2011 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005639-2011, CP-51-CR-0005393-2011, CP-51-CR-0005391-2011
BEFORE: STEVENS, P.J., WECHT, J., and COLVILLE, J. [*]
This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County after Appellant pled guilty to four counts of Robbery, one count of Aggravated Assault, one count of Criminal Conspiracy, and several firearms offenses. Sentenced to an aggregate term of 50 to 100 years' incarceration, Appellant charges the court with abusing its sentencing discretion in imposing upward departure sentences given what he describes as the non-violent crimes involved, his rehabilitative needs, and his expression of remorse at the time of sentencing. Because the record lacks a transcript necessary for meaningful appellate review of the sentencing claim, we remand for a proceeding to determine accountability for the missing transcript, and retain panel jurisdiction.
The trial court has authored an opinion aptly setting forth the facts and procedural history relevant to our disposition:
[T]here cases [were] adjudicated before th[e trial] court. The first case, , arose from a gunpoint robbery taking place of February 15, 2011 at the 67th Street Café in Philadelphia. Defendant [hereinafter "Appellant"] and Dominic Ivy were squatting in a house roughly half a block from the bar. Scouting the location, Ivy entered the bar with a ten-dollar bill and asked for change. Within ten minutes, Ivy reentered the bar, this time accompanied by Appellant. Appellant and Ivy proceeded to rob the bar's occupants—two patrons and a 70-year-old bartender—at gunpoint. The gun used was taken from another house during a previous burglary.
On March 9, 2011, Appellant was charged with two counts of Robbery—Threat of Immediate Serious Injury (18 Pa.C.S. § 6105(A))1)) stemming from the February 15, 2011 incident. On July 6, 2011, Appellant entered a non-negotiated guilty plea to all charges. On September 14, 2011, Appellant was sentenced to 10-20 years' imprisonment for each of the Robbery convictions and 10 years' probation for the Possession of Firearm Prohibited conviction.
The second case, , arose from an incident which occurred on March 9, 2011. Appellant conducted a robbery virtually identical to the one he participated in on February 15, 2011. As the same bartender from the February 15, 2011 incident opened the bar, Appellant entered the bar, using the same gun from the previous robbery, and again robbed both the bartender and the one patron at gunpoint. This time, Appellant put the gun in the bartender's face and took five hundred dollars.
On March 9, 2011, Appellant was charged with two counts of Robbery—Threat of Immediate Serious Injury (18 Pa.C.S. § 3701(A)(1)(ii)), and one count of Conspiracy (18 Pa.C.S. § 903), one count of Possession of Firearm Prohibited (18 Pa.C.S. § 6105(A)(1)) from the March 9, 2011 incident. On July 6, 2011, Appellant entered a non-negotiated guilty plea to all charges. On September 14, 2011, Appellant was sentenced to 10-20 years' imprisonment for each of the Robbery convictions, 20 years' probation for the Conspiracy conviction, and 7 years' probation for the Possession of Firearm Prohibited conviction.
The third case, , resulted from a March 8, 2011 incident. While outside Danny D's Bar on 67th and Buist Streets in Philadelphia, Appellant got in a fight with two other males and pulled out and discharged a gun at them. Both men were then transported to a hospital, where they received treatment for hand injuries, which appeared not to be the result of gunshot wounds.
On April 6, 2011, Appellant was charged with one count of Aggravated Assault (18 Pa.C.S. § 2702(A)), one count of Possession of Firearm Prohibited (18 Pa.C.S. § 6105(A)(1)), and one count of Firearms Not to be Carried Without a License (18 Pa.C.S. § 6106(A)(1)), from the incident on March 8, 2011. On July 6, 2011, Appellant entered a non-negotiated guilty plea to all charges. On September 14, 2011, Appellant was sentenced to 10-20 years' imprisonment for the Aggravated Assault conviction, 10 years' probation for the Possession of Firearm Prohibited conviction, and 7 years' probation for the Firearms Not to be Carried Without a License conviction.
On September 21, 2011, Appellant filed a Motion for Reconsideration with [the trial] court, which was denied on November 17, 2011. On December 16, 2011, Appellant filed a timely Notice of Appeal with the Superior Court of Pennsylvania.
Trial Court Opinion dated August 23, 2012 at 1-3.
[DID] THE LOWER COURT ABUSE ITS DISCRETION IN IMPOSING MAXIMUM AGGREGATE SENTENCE OF FORTY (40) TO EIGHTY (80) YEARS, FOR FOUR COUNTS OF ROBBERY, 18 Pa.C.S.A. SECTION 3701, TEN (10) TO TWENTY (20) YEARS FOUR [SIC] ONE COUNT OF AGGRAVATED ASSAULT, 18 PA.C.S.A SECTION 2702, FOLLOWED BY FIFTY-FOUR (54) YEARS' PROBATION WHICH WAS SIGNIFICANTLY HIGHER THAN THE STANDARD SENTENCING RANGE OF SIXTY (60) TO (72) MONTHS, PLUS OR MINUS TWELVE MONTHS, YIELDED BY APPELLANT'S PRIOR RECORD SCORE OF FIVE (5) AND THE OFFENSE GRAVITY SCORE OF ELEVEN (11) FOR BOTH ROBBERY (F1) AND AGGRAVATED ASSAULT (F1), THEREBY RENDERING THE SENTENCE MANIFESTLY EXCESSIVE IN LIGHT OF CRIMINAL CONDUCT AT ISSUE IN THE CASE, AND INCONSISTENT WITH THE PROTECTION OF THE PUBLIC OR THE REHABILITATIVE NEEDS OF APPELLANT, WHO ACCEPTED RESPONSIBILITY BY PLEADING GUILTY AND ARTICULATED REMORSE AT HIS SENTENCING HEARING?
Brief for Appellant at 5.
Initially, we note Appellant is challenging the discretionary aspects of his sentence. "It is well settled that, with regard to the discretionary aspects of sentencing, there is no automatic right to appeal." Commonwealth v. Mastromarino, 2 A.3d 581, 585 (Pa. Super. 2010) (citation omitted).
Before we reach the merits of this [issue], we must engage in a four part analysis to 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. The third and fourth of these requirements arise because Appellant's attack on his sentence is not an appeal as of right. Rather, he must petition this Court, in his concise statement of reasons, to grant consideration of his appeal on the grounds that there is a substantial question. Finally, if the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case.
Commonwealth v. Austin, 2013 WL 1943994, 8 (Pa. Super. filed May 13, 2013).
Here, the Commonwealth objects to the adequacy of both Appellant's motion to reconsider sentence and 2119(f) statement and calls for waiver of this appeal on either ground. Regarding the motion to reconsider sentence, the Commonwealth contends it was vague and unspecific, "merely noting that [Appellant's] sentence was higher than the aggravated range of the guidelines and asking the court to impose a mitigated sentence." Our review of Appellant's motion confirms that it states only that he received an upward departure sentence and asks for a mitigated sentence since he pled guilty and expressed remorse. Motion for Reconsideration of Sentence, dated 9/21/11. We decline to find waiver on this record, however, as the excessive sentence claim he raises on appeal may reasonably be inferred from the motion.
As for Appellant's 2119(f) statement failing to raise a substantial question, our jurisprudence provides the following guidance:
We examine an appellant's Pa.R.A.P. 2119(f) statement to determine whether a substantial question exists. Our inquiry must focus on the reasons for which the appeal is sought, in contrast to the facts underlying the appeal, which are necessary only to decide the appeal on the merits. Commonwealth v. Ahmad, 961 A.2d 884, 886–87 (Pa. Super. 2008) (citations, quotation marks and footnote omitted).
Commonwealth v. Brooks, 2013 WL 66474, at * 3 (Pa. Super. Jan.7, 2013) (italics in original). In addition, in Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617, 627–28 (Pa. 2002) (plurality), our Supreme Court stated that a claim a sentence which is within the statutory limits is excessive can raise a substantial question.
This does not mean, however, that the Superior Court must accept bald allegations of excessiveness. Rather, only where the appellant's Rule 2119(f) statement sufficiently articulates the manner in which the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process, will such a statement be deemed adequate to raise a substantial question so as to permit a grant of allowance of appeal of the discretionary aspects of the sentence.
Id. at 627; see also Commonwealth v. Reynolds, 835 A.2d 720, 733 (Pa. Super. 2003) (concluding that bald allegations presented in Appellant's Rule 2119(f) statement do not present a substantial question).
Commonwealth v. Hill, WL 1450503, 2 -3 (Pa. Super. filed April 10, 2013). Here, Appellant's 2119(f) statement states as follows:
Appellant's sentence is contrary to the fundamental norms of sentencing and inconsistent with the objectives of the sentencing code, because 1) the sentencing court sentenced Appellant outside the sentencing guidelines and the sentence is unreasonable, 2) the sentence was manifestly excessive in light of the criminal conduct at issue in the case, 3) the sentence was not consistent with the protection of the public, and 4) the sentence was not consistent with the rehabilitative needs of Appellant.
Brief for Appellant at 10. Raising such claims as he does places Appellant in technical compliance with the requirements to challenge the discretionary aspects of a sentence. Id. at 3. (citing Commonwealth v. Rhoades, 8 A.3d 912, 916 (Pa. Super. 2010), appeal denied, 611 Pa. 651, 25 A.3d 328 (2011), cert. denied, Rhoades v. Pennsylvania ––– U.S. ––––, 132 S.Ct. 1746, 182 L.Ed.2d 536, 80 USLW 3526 (2012)).
"In reviewing [an appellant's] sentencing issues, we are mindful that 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. Moreover, the sentencing court has broad discretion in choosing the range of permissible confinements which best suits a particular defendant and the circumstances surrounding his crime." Commonwealth v. Brooks, 2013 WL 66474, at *4 (Pa. Super. Jan.7, 2013) (citations and internal quotation marks omitted). In addition, "[i]n imposing a sentence, the trial judge may determine whether, given the facts of a particular case, a sentence should run consecutive to or concurrent with another sentence being imposed." Commonwealth v. Perry, 883 A.2d 599, 603 (Pa.Super.2005) (citations omitted).
Where an excessive sentence claim is based on deviation from the sentencing guidelines, we look for an indication that the sentencing court understood the suggested sentencing range. See Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa.Super.2003). When there is such an indication, the sentencing court may deviate from the sentencing guidelines to fashion a sentence which takes into account the protection of the public, the rehabilitative needs of the defendant, and the gravity of the particular offenses as it relates to the impact on the life of the victim and the community, so long as the court also states of record the factual basis and specific reasons which compelled him to deviate from the guideline range.
Id. (internal quotation marks and citation omitted). Thus, simply stated, the sentencing guidelines are merely advisory and the sentencing court may sentence a defendant outside the guidelines as long as the sentencing court places its reasons for doing so on the record. Id.
Hill, supra at 4.
The record demonstrates that given both Appellant's prior record score of five and offense gravity score of ten and deadly weapons enhancement of an additional 18 months, the guidelines allowed for an aggravated range upper limit of one hundred and two months' incarceration for each Aggravated Assault and Robbery offense. As the court imposed a 120 month sentence for each of four robbery convictions and the one aggravated assault conviction, it exceeded the guideline range by eighteen months for each offense.
This sentence is manifestly excessive, Appellant argues, given his difficult youth where he was raised in foster care, began recreational drug use at the age of 15, dropped out of high school, and has struggled with drug dependency, homelessness, and unemployment for the last ten years. Though he possessed a prior criminal record at the time he committed the offenses at bar, Appellant asserts that none of the prior crimes, including criminal trespass, possession and distribution of marijuana, and resisting arrest, were violent in nature. Finally, Appellant points to his willingness to plead guilty and his expression of remorse at sentencing.
Unfortunately, absent from the certified record is a sentencing hearing transcript, the review of which is necessary to meaningful appellate review of Appellant's sentencing claim. While a transcript of the hearing on Appellant's motion for reconsideration is part of the record, and that transcript contains the court's reasons for the upward departure it imposed, this Court requires an expression of reasons made contemporaneously with the court's imposition of sentence.
We note further that the certified record contains no document in which Appellant made a request that the clerk of courts include in the certified record the transcript of the September 21, 2011 sentencing hearing. Additionally, the certified record's docket sheet includes an entry that the Court filed the transcript for the November 17, 2011 Motion for reconsideration hearing, but no such entry exists for the September 21, 2011 sentencing hearing.
Our law is unequivocal that the responsibility rests upon the appellant to ensure that the record certified on appeal is complete in the sense that it contains all of the materials necessary for the reviewing court to perform its duty. Commonwealth v. Kleinicke, 895 A.2d 562, 575 (Pa. Super. 2006) (en banc ). In Commonwealth v. Preston, 2006 PA Super 170, ¶ 7, 904 A.2d 1 (en banc ), we explained that to facilitate an appellant's ability to comply with this requirement, our Supreme Court adopted the following procedural rule effective June 1, 2004:
The clerk of the lower court shall, at the time of the transmittal of the record to the appellate court, mail a copy of the list of record documents to all counsel of record, or if unrepresented by counsel, to the parties at the address they have provided to the clerk. The clerk shall note on the docket the giving of such notice.
Pa.R.A.P. 1931(d). As the explanatory comment to Rule 1931 indicates, if counsel (or a party) discovers that anything material has been omitted from the certified record, the omission can be corrected pursuant to the provisions of Rule of Appellate Procedure 1926. Under Rule 1926, an appellate court may direct that an omission or misstatement shall be corrected through the filing of a supplemental certified record. However, this does not alter the fact that the ultimate responsibility of ensuring that the transmitted record is complete rests squarely upon the appellant and not upon the appellate courts. Preston, 2006 PA Super 170, at ¶ 7.
An appellant should not be denied appellate review if the failure to transmit the entire record was caused by an "extraordinary breakdown in the judicial process." Commonwealth v. Williams, 552 Pa. 451, 715 A.2d 1101, 1106 (1998). However, if the appellant caused a delay or other problems in transmitting the certified record, then he or she is not entitled to relief and the judgment of the court below should be affirmed. Id. See Commonwealth v. Barge, 560 Pa. 179, 743 A.2d 429, 429–30 (1999) (directing that if documents are missing from the certified record because of a default by court personnel, an appellant is entitled to have his claims resolved on the merits, but if the absence of the evidence is attributable to the appellant's failure to comply with the relevant procedural rules, the claims will be deemed to have been waived).
Nevertheless, the existence of Rule 1931(d) does not supplant the legal mandate that places responsibility on the appellant to ensure that a complete record reaches the appellate court. The purpose of Rule 1931(d) is to assist appellants by providing notice as to what was transmitted so that remedial action can be taken if necessary. Rule 1931(d) does not absolve the appellant from the duty to see that this Court receives all documentation necessary to substantively address the claims raised on appeal. We caution the bench and bar that if the clerk of court fails to satisfy the requirements of Rule 1931(d) by providing a list of record documents, it behooves the appellant to investigate the matter. The failure of counsel or of an unrepresented appellant to make inquiry does not constitute an "extraordinary breakdown in the processes of the court." Whether a default with regard to the contents of the certified record warrants a finding of waiver is a question that must be evaluated under the particular facts and circumstances of a specific appeal.
Commonwealth v. Bongiorno, 905 A.2d 998, 1000 -1001 (Pa. Super. 2006) (emphasis in original).
Accordingly, in light of this jurisprudence, we direct the trial court to determine if the September 21, 2011 sentencing transcript missing from the certified record occurred through default by court personnel, in which case an appellant is entitled to have his claims resolved on the merits, or if the absence is attributable instead to Appellant's failure to comply with the relevant procedural rules, in which case this Court will deem Appellant to have waived his discretionary aspects claim.
Case remanded for proceedings consistent with this decision. Panel jurisdiction is retained.