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[U] Commonwealth v. Carry

Superior Court of Pennsylvania

October 18, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
GERODE MOTT CARRY, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence November 1, 2012, in the Court of Common Pleas, Monroe County, Criminal Division, at No. CP-45-SA-0001118-2012

BEFORE: GANTMAN, DONOHUE, and PLATT [*], JJ.

MEMORANDUM

PLATT, J.

Appellant, Gerode Mott Carry, appeals from the judgment of sentence imposed following his conviction of possession with intent to deliver (PWID), 35 P.S. § 780-113(a)(30). Specifically, he challenges the discretionary aspects of his sentence. After careful review, we affirm.

On May 11, 2012, a Pennsylvania State Trooper stopped Appellant after he observed him speeding on Interstate 80. This traffic stop led to the discovery of a small amount of marijuana and 330 grams of cocaine in Appellant's vehicle. On September 5, 2012, Appellant entered an open guilty plea to PWID. On November 1, 2012, the trial court sentenced Appellant to not less than sixty nor more than 120 months' incarceration. Appellant filed a post-sentence motion seeking modification of his sentence, which the trial court denied. This timely appeal followed.[1]

Appellant presents one question for our review:

1. Did the [t]rial [c]ourt err and abuse its discretion by imposing a manifestly excessive sentencing, which was not only the maximum allowable at law, but, also, fell within the aggravated sentence range of the Pennsylvania Sentencing Guidelines, by failing to consider the rehabilitative needs of [Appellant] and actual need for protection of the public pursuant to the Pennsylvania Sentencing Code, the presence of mitigating circumstances and failing to state sufficient reasons on the record for the sentence imposed?

(Appellant's Brief, at 5).

Appellant challenges the discretionary aspects of sentencing for which there is no automatic right to appeal. This appeal is, therefore, more appropriately considered a petition for allowance of appeal. Two requirements must be met before a challenge to the judgment of sentence will be heard on the merits. First, the appellant must set forth in his [or her] brief a concise statement of matters relied upon for allowance of appeal with respect to the discretionary aspects of his [or her] sentence. Pa.R.A.P. 2119(f). Second, he or she must show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. 42 Pa.C.S.A. §9781(b)[.]
The determination of whether a particular case raises a substantial question is to be evaluated on a case-by-case basis. Generally, however, in order to establish that there is a substantial question, the appellant must show actions by the sentencing court inconsistent with the Sentencing Code or contrary to the fundamental norms underlying the sentencing process.

Commonwealth v. Yeomans, 24 A.3d 1044, 1049 (Pa.Super. 2011) (case citation omitted).

In the present case, Appellant has included in his brief a statement pursuant to Rule 2119(f). (See Appellant's Brief, at 9-10). Appellant argues that the trial court imposed a "sentence in the nature of the maximum allowable at law and characteristic of an aggravated range sentence, " and failed to state its reasons for imposing the sentence on the record. (Id. at 9; see id. at 10). Appellant further asserts that the trial court incorrectly disregarded mitigating evidence when it found him to be insincere, and ignored the facts that Appellant had a drug problem, the offense was non-violent, and that he "has accepted responsibility for his actions from the time of his arrest, thereby increasing his potential for rehabilitation." (Id. at 9).

"[A]n excessive sentence claim, in conjunction with an assertion that the court did not consider mitigating factors, raise[s] a substantial question." Commonwealth v. Dodge, 2013 Pa.Super. Lexis 2662, at *21 (Pa.Super. 2013) (citing Commonwealth v. Perry, 883 A.2d 599, 602 (Pa.Super. 2005). Thus, we proceed to examine the merits of his sentencing challenges. "In reviewing a challenge to the discretionary aspects of sentencing, we evaluate the court's decision under an abuse of discretion standard." Commonwealth v. Stokes, 38 A.3d 846, 858 (Pa.Super. 2011) (citation omitted). Additionally, "this Court's review of the discretionary aspects of a sentence is confined by the statutory mandates of 42 Pa.C.S. § 9781(c) and (d)." Commonwealth v. Macias, 968 A.2d 773, 776 (Pa.Super. 2009). Section 9781(c) provides:

(c) Determination on appeal.—The appellate court shall vacate the sentence and remand the case to the sentencing court with instructions if it finds:
(1) the sentencing court purported to sentence within the sentencing guidelines but applied the guidelines erroneously;
(2) the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable; or
(3) the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable.
In all other cases the appellate court shall affirm the sentence imposed by the sentencing court.

42 Pa.C.S.A. § 9781(c).

In reviewing the record, we consider:
(1) The nature and circumstances of the offense and the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4)The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(d).

Appellant alleges that the trial court imposed an aggravated sentence without stating its reasons or considering mitigating evidence. (See Appellant's Brief, at 14). Appellant claims that "[a]lthough the [t]rial [c]ourt attempts to characterize the present sentence as a standard range sentence, it is, for all intents and purposes, an aggravated range sentence." (Id.). We disagree.

First, a review of the record indicates that the sentencing guidelines generated for Appellant based on his offense gravity score, and prior record score, indicates that the standard guideline range was forty-two to sixty months, and the statutory limits delineated a minimum of sixty months and a maximum of 120 months. (See Guideline Sentence Form, 11/15/12, at 1). Accordingly, the trial court properly characterized the sentence of not less than sixty nor more than 120 months as "within the standard range, albeit one that was at the top end of the standard range and also constituted the statutory maximum." (Trial Court Opinion, 2/13/13, at 4); see also 42 Pa.C.S.A. § 9781(d)(4). Appellant's claim that he was sentenced in the aggravated range does not merit relief.

Second, "[w]here the sentencing court had the benefit of a presentence investigation report (PSI), we can assume the sentencing court was aware of relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors." Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa.Super. 2013), appeal denied, 2013 Pa. Lexis 2231 (Pa. 2013) (citations and quotation marks omitted). Here, Appellant concedes that he "appeared for and cooperated in a presentence investigation, " and that the trial court had a PSI which outlined his prior record score and offense gravity score. (Appellant's Brief, at 6). Accordingly, his assertion that the trial court failed to consider mitigating circumstances and incorrectly found him to be insincere lacks merit.

Third, Appellant's claim that the trial court did not state its reasons for his sentence is also belied by the record. At sentencing, the trial court heard Appellant's counsel and Appellant argue that he "has a long-standing serious drug addiction that needs to be addressed and will be addressed." (N.T. Sentencing, 11/01/12, at 4). Considering these statements and the PSI, the court stated:

All right. It also indicates in here that there [have] been no other attempts at rehabilitation, treatment or therapy with respect to this issue despite the fact that somehow you were on ARD [accelerated rehabilitative disposition], were revoked and put back on ARD for a second offense. You had the recklessly endangering when you were on probation for two years. You had a prior PWID when you were on probation, and you are on probation now.
So I have to assume that at that point if there was going to be any sincerity that somewhere along the line you would have actually had some type of treatment, counseling or therapy at least in the criminal or penal justice system. But apparently that didn't happen. So the sincerity of this now I'm not really sure of.
I can tell you that the severity of the situation and since you've been through the system, knowing that you were on probation or parole or whatever it was in Beaver County and knowing that you were going to come in for a PSI and testing hot for cocaine, whether you have a problem or not, are not good things. They are aggravating factors. I recognize them. I think they're very legitimate.
I'm glad you've done your research because you're going to get a chance to undergo and use those things that are available.

(Id. at 7-8). Accordingly, Appellant's claim that the trial court failed to state its reasoning on the record is specious. The trial court considered the nature and circumstances of Appellant's offense, availed itself of the opportunity to observe and speak with Appellant, considered Appellant's PSI and sentenced him within the guidelines. See 42 Pa.C.S.A. § 9781(d). Therefore, Appellant's challenge to the discretionary aspects of his sentence lacks merit, and we affirm the judgment of sentence imposed by the trial court. See 42 Pa.C.S.A. § 9781(c); Stokes, supra at 858.

Judgment of sentence affirmed.

DISSENTING MEMORANDUM BY DONOHUE, J.

I disagree with the Majority's determination that Carry's sentence is a standard-range sentence. For the reasons expressed below, I believe that Carry's sentence is property characterized as one that exceeds the sentencing guidelines. I further conclude that the trial court failed to fulfill the statutory obligations attendant to imposing a sentence that falls beyond the sentencing guidelines.

I begin with the framework established by our Legislature for sentencing procedure. The Sentencing Code sets forth the considerations a trial court must take into account when formulating a sentence:

[T]he 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.

42 Pa.C.S.A. § 9721(b). It also provides:

In every case in which the court imposes a sentence for a felony or misdemeanor, modifies a sentence, resentences an offender following revocation of probation, county intermediate punishment or State intermediate punishment or resentences following remand, the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed.

Id. Furthermore, when sentencing a defendant beyond the ranges recommended by the sentencing guidelines, the trial court must state its reasons for departing from the guidelines on the record. Bowen, 55 A.3d at 1263-64. When doing so,

a trial judge … [must] demonstrate on the record, as a proper starting point, [its] awareness of the sentencing guidelines. Having done so, the sentencing court may deviate from the guidelines, if necessary, 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 offense as it relates to the impact on the life of the victim and the community, so long as [it] also states of record the factual basis and specific reasons which compelled [it] to deviate from the guideline range.

Id. at 1264 (emphasis added).

The record reveals that the sentencing guidelines in this case provided that a standard sentence would be in the range of 42 to 60 months of incarceration, with 30 months as a mitigated sentence and 60 months as an aggravated sentence. See Guideline Sentencing Form, 11/5/12. The statutory maximum was 120 months of incarceration. Id. Of note – and what the Majority ignores – the Sentencing Guideline Form did not provide an aggravated range. The Sentencing Guideline Form provided only that an aggravated sentence was 60 months. Id. Carry's sentence of 60 to 120 months therefore exceeds the aggravated sentence.

Because the sentence imposed exceeded the aggravated sentence of 60 months, the trial court was required to state its awareness of the guideline ranges and its reasons for departing therefrom on the record. My review of the record reveals that it did not fulfill either of these requirements. At sentencing, Carry's counsel addressed the trial court and spoke about Carry's desire to seek help for his drug addiction. Carry also addressed the trial court and said the following:

Your Honor, I just would like – I'm trying to stop my own, and it's been years, and it hasn't worked out. So I will just beg of you in a sense, Judge, to give me the help that I need because I'm tired of doing and living that life. I just want to get myself together and come out on the other side, on the clean side of life.

N.T., 11/1/12, at 6. Prior to imposing sentence, the trial court stated only the following:

All right. It also indicates in here that there has been no other attempts at rehabilitation, treatment or therapy with respect to this issue despite the fact that somehow you were on ARD, were revoked and put back on ARD for a second offense. You had the recklessly endangering when you were on probation for two years. You had a prior PWID when you were on probation, and you are on probation now.
So I have to assume that at that point if there was going to be any sincerity that somewhere along the line you would have actually had some type of treatment, counseling or therapy at least in the criminal or penal justice system. But apparently that didn't happen. So the sincerity of this now I'm not really sure of.
I can tell you that the severity of the situation and since you've been through the system, knowing that you were on probation or parole or whatever it was in Beaver County and knowing that you were going to come in for a PSI and testing hot for cocaine, whether you have a problem or not, are not good things. They are aggravating factors. I recognize them. I think they are very legitimate.
I'm glad you've done your research because you're going to get a chance to undergo and use those things that are available. I will issue this order[.] Id. at 7-8.

In my view, these remarks by the trial court do not evince an awareness of the sentencing guidelines or explain the trial court's decision to deviate therefrom, as was required. See Bowen, 55 A.3d at 1264. Rather, they read only as a response to Carry's claim that he wants help to fight his addition to drugs. Moreover, I am not satisfied that the trial court's statement meets the fundamental requirement that "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.A. § 9721(b).[1] [2]

Because the trial court failed to meet these requirements, I believe that it erred in imposing Carry's sentence. Accordingly, I would vacate the judgment of sentence and remand this matter for resentencing. While upon resentencing the trial court could impose precisely the same sentence, this Court is required to enforce the sentencing protocols which provide the basis for our sentencing review function.


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