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[U] Commonwealth v. Carry

Superior Court of Pennsylvania

October 18, 2013



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




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 ...

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