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[U] Commonwealth v. Deberry

Superior Court of Pennsylvania

November 14, 2013



Appeal from the Judgment of Sentence of October 3, 2012 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000201-2012, CP-25-CR-0003432-2011




Appellant, Ramon David Deberry, appeals from the judgment of sentence entered on October 3, 2012, following his guilty pleas to burglary, conspiracy, and unauthorized use of a motor vehicle.[1] We affirm.

The trial court briefly summarized the facts and procedural history of this case as follows:

On July 2, 2012, [] [A]ppellant appeared before the Honorable Michael R. Dunlavey, now senior judge [], for the purpose of entering a guilty plea. At that time, [Appellant] decided not to plead guilty. On July 11, 2012, he appeared before the Honorable John Garhart [] and pled guilty to counts 2 and 3 of docket 3432 of 2011 (criminal conspiracy to commit robbery and burglary). He also pled guilty to count 4 of 201 of 2012 (unauthorized use of a motor vehicle). On October 3, 2012, he was sentenced [] as follows: (1) at docket number 3432 – 2011, count 2 (criminal conspiracy to commit robbery), 18 – 36 months['] confinement; (2) at count 3 (burglary), 18 – 36 months to be served consecutively to count 2. At docket 201 – 2012, he was sentenced to 2 – 24 months['] confinement to be served concurrently with count 2 of docket 3432 – 2011. These were all standard range sentences. The criminal conspiracy and burglary sentences were in the low end of the applicable sentencing guidelines. [Appellant] did not file a post sentence motion or direct appeal, but he did, on November 14, 2012, file a pro se [m]otion [t]o [m]odify [s]entence which [the trial c]ourt treated as a PCRA petition. Counsel was appointed for him. After subsequent proceedings, [Appellant's] right to file a post-sentence motion nunc pro tunc and appeal were granted by [the trial court] by order dated March 11, 2013.

Trial Court Opinion, 5/7/2013, at 1-2 (record citations and footnotes omitted). Appellant filed a post-sentence motion that the trial court denied by order entered on February 5, 2013. This timely appeal followed.[2]

On appeal, Appellant presents the following issues for our review:

A. Whether the sentencing court committed legal error and abused its discretion in failing to afford due consideration and deference to the mitigating factors presented and otherwise discernible on behalf of [] [A]ppellant relative to the explanation tendered as to the criminal allegations by [] [A]ppellant and his acceptance of responsibility?
B. Whether the sentencing court committed legal error and abused its discretion in imposing a consecutive sentence scheme thereby constituting an excessive sentence in disregard of the rehabilitative needs and prospects of [] [A]ppellant?

Appellant's Brief at 2.

Both of Appellant's issues challenge the discretionary aspects of sentencing. Hence, we will examine them together. In his first issue, Appellant claims the trial court failed "to afford due consideration and deference to the mitigating factors presented[, ]" i.e., he has a four-year old child, his father suffers from pancreatic cancer, his intention to continue schooling, the prospect of gainful employment, and his acceptance of responsibility for the criminal conduct at issue. Id. at 5-6. Appellant also challenges the imposition of consecutive sentences as excessive and "contrary to the rehabilitation" of Appellant given the aforementioned mitigating circumstances. Id. at 6.

As previously stated, Appellant's issues are challenges to the trial court's discretionary authority to impose a sentence:

Challenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right. An appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Objections to the discretionary aspects of a sentence are generally waived if they are not raised at the sentencing hearing or in a motion to modify the sentence imposed.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations and brackets omitted).

Here, Appellant has fulfilled the first, second, and third requirements of the above-mentioned four-part test. However, "[a]n allegation that the sentencing court failed to consider certain mitigating factors generally does not necessarily raise a substantial question." Id. at 171, citing Commonwealth v. McNabb, 819 A.2d 54, 57 (Pa. Super. 2003). Accord Commonwealth v. Wellor, 731 A.2d 152, 155 (Pa. Super. 1999) (reiterating allegation that sentencing court "failed to consider" or "did not adequately consider" certain factors generally does not raise substantial question). Compare Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003) (en banc) (stating substantial question is raised, however, where appellant alleges sentencing court imposed a sentence in the aggravated range without adequately considering mitigating circumstances).

Moreover, a challenge to the imposition of consecutive sentences does not raise a substantial question. This Court has previously stated:

Under 42 Pa.C.S.A. § 9721, the court has discretion to impose sentences consecutively or concurrently and, ordinarily, a challenge to this exercise of discretion does not raise a substantial question. Commonwealth v. Pass, 914 A.2d 442, 446-47 (Pa. Super. 2006). The imposition of consecutive, rather than concurrent, sentences may raise a substantial question in only the most extreme circumstances, such as where the aggregate sentence is unduly harsh, considering the nature of the crimes and the length of imprisonment. Id. (holding challenge to court's imposition of sentence of six (6) to twenty-three (23) months['] imprisonment and sentence of one (1) year probation running consecutive, did not present substantial question). Compare [Commonwealth v. Dodge 957 A.2d 1198 (Pa. Super. 2008), appeal denied, 980 A.2d 605 (Pa. 2009)] (holding imposition of consecutive sentences totaling 58 ½ to 124 years['] imprisonment for thirty-seven (37) counts of theft-related offenses presented a substantial question because total sentence was essentially life sentence for forty-two year-old defendant who committed non-violent offenses with limited financial impact).

Moury, 992 A.2d at 169.

Following our decision in Dodge, we have made clear that a challenge to the consecutive nature of standard sentences does not always raise a substantial question. See Commonwealth v. Gonzalez-Dejesus, 994 A.2d 595, 598 (Pa. Super. 2010) (Generally speaking, a court's exercise of discretion in imposing consecutive as opposed to concurrent sentences is not viewed as raising a substantial question that would allow the granting of allowance of appeal). Instead, we examine such claims on a case-by-case basis. Id. This Court has determined that "the key to resolving the preliminary substantial question inquiry is whether the decision to sentence consecutively raises the aggregate sentence to, what appears on its face to be, an excessive level in light of the criminal conduct at issue in the case." Id. at 598-599. Based upon our review, Appellant's sentence is not facially excessive in light of his criminal conduct.

Further, "where the sentencing court imposed a standard-range sentence with the benefit of a pre-sentence report, we will not consider the sentence excessive." Commonwealth v. Corley, 31 A.3d 293, 298 (Pa. Super. 2011) (citation omitted). "In those circumstances, 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." Id. (citation and internal quotation omitted). In this case, the trial court had the benefit of a pre-sentence report before fashioning standard range, consecutive sentences.

Accordingly, based upon all of the foregoing, Appellant has failed to raise a substantial question and, thus, his petition for review of the discretionary aspects of his sentence must be denied.

Judgment of sentence affirmed.

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