March 3, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
BRANDON WATTERSON, Appellant
Appeal from the Judgment of Sentence entered September 13, 2012, in the Court of Common Pleas of Armstrong County, Criminal Division, at No(s): CP-03-CR-0000353-2011
BEFORE: PANELLA, ALLEN, and STRASSBURGER [*] , JJ.
Brandon Watterson (Appellant) appeals from the judgment of sentence entered on September 13, 2012, following his conviction for various drug offenses. We affirm.
On June 29, 2011, Appellant and eight co-defendants were arrested and charged with multiple drug-related offenses stemming from the raid of a large-scale methamphetamine operation which was partially run out of Appellant's home. Appellant was alleged to be the mastermind behind the operation and, on June 12, 2012, he pleaded guilty to two counts of possession with intent to deliver (PWID) and one count of operating a methamphetamine laboratory. Under the terms of the plea agreement, the Commonwealth agreed to withdraw the remaining charges and recommend at sentencing that Appellant serve a term of six to twelve years' incarceration. The Commonwealth further agreed to recommend that the sentences imposed at each count were to run concurrently. This recommendation was based upon the Commonwealth's erroneous belief that Appellant's record and the weight of the substances seized triggered certain mandatory minimum provisions. Appellant contested the application of those mandatories, and as part of the plea agreement, he reserved the right to re-argue at sentencing both his prior criminal record and the amounts of controlled substance found in his possession.
The record reflects that two days before sentencing Appellant and the Commonwealth entered into a written stipulation that the amount of methamphetamine found in his possession was between 2.5 grams and 10.0 gram range, a range significantly lower than that asserted by the Commonwealth at the time the plea was entered. The parties further agreed that Appellant's prior conviction for conspiracy did not increase the penalty for his PWID charges.
Appellant was sentenced on September 13, 2012. On that date, the sentencing court imposed an aggregate term of six to twelve years' incarceration. Specifically, Appellant was sentenced to concurrent terms of three to six years' incarceration at count 9 (PWID) and count 15 (operating a methamphetamine laboratory), as well as an additional, consecutive, term of three to six years' incarceration at count 10 (PWID). Appellant was given credit for 525 days of time served. Further, the sentencing court determined that Appellant was eligible for the Recidivism Risk Reduction Incentive (RRRI) program.
Appellant filed a timely post-sentence motion on September 24, 2012, in which he claimed that the sentencing court erred in imposing consecutive sentences on Counts 9 and 10. Appellant further contended that the court erred in failing to apply 525 days of credit at each of the three counts to which he pleaded guilty.
On January 11, 2013, the trial court issued an order denying Appellant's motion. This timely appeal followed. Both Appellant and the trial court complied with the requirements of Pa.R.A.P. 1925.
Appellant's first issue on appeal raises a challenge to the discretionary aspects of his sentence. It is well established that a criminal defendant does not have an absolute right to challenge the discretionary aspects of his sentence on appeal. See Commonwealth v. Bishop, 831 A.2d 656, 660 (Pa.Super. 2003). Before we may reach the merits of a challenge to the discretionary aspects of sentencing, we must be satisfied that: (1) the appeal is timely; (2) the appellant has preserved his issues; and (3) the appellant has included in his brief a Pa.R.A.P. 2119(f) concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence. Furthermore, the concise statement must raise a substantial question that the sentence is inappropriate under the sentencing code. See Commonwealth v. Corley, 31 A.3d 293, 295-96 (Pa.Super. 2011).
The record indicates that the instant appeal was filed timely and Appellant has included a Rule 2119(f) statement in his brief. See Appellant's Brief at 19-21. Appellant filed post-sentence motions challenging the discretionary aspects of his sentence on the basis that his consecutive sentences were excessive in light of various mitigating factors.
The remaining inquiry, therefore, is whether Appellant has raised a substantial question for our review. "The determination of whether a substantial question exists must be determined on a case-by-case basis." Commonwealth v. Hartman, 908 A.2d 316, 320 (Pa.Super. 2006) (citation omitted). This Court has explained that "[a] substantial question exists where an appellant advances a colorable argument that the sentencing judge's actions [were] either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process." Id. (quoting Commonwealth v. Koren, 646 A.2d 1205, 1208-1209 (Pa.Super. 1994)).
While Appellant concedes that the trial court imposed a sentence within the standard guideline range, he maintains that the sentence "violates a fundamental norm that underlies the sentencing code" because the trial court failed to consider adequately certain mitigating factors, such as his remorse, as well as the parties' stipulation, which he contends should have resulted in a sentence lower than that recommended by the Commonwealth. Appellant's Brief at 21.
An allegation that the sentencing court failed to consider certain mitigating factors generally does not raise a substantial question. Commonwealth v. McNabb, 819 A.2d 54, 57 (Pa.Super. 2003). However, in Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa.Super. 2003) (en banc), we held that a substantial question is raised, where appellant alleges sentencing court imposed sentence in aggravated range without adequately considering mitigating circumstances. Such is not the case here as Appellant concedes that his sentence at each count falls within the standard range of the applicable guidelines.
Moreover, we have held that
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) ("Dodge II")]. (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).
Commonwealth v. Moury, 992 A.2d 162, 171-72 (Pa.Super. 2010). Instantly, although he was sentenced consecutively, Appellant was sentenced to an aggregate term of six to twelve years' incarceration, which is not only what the Commonwealth agreed to recommend under the terms of the plea agreement, but also within the standard range of Appellant's guidelines following the parties' stipulation. The terms of Appellant's guilty plea colloquy made clear that the sentence was ultimately up to the court and that the court was not bound by the recommendation of the Commonwealth. See Sentencing Court Opinion, 1/11/2013, at 3 ("[Appellant] certified in the Plea Agreement that he 'fully understand[s] that any sentence recommendation by the attorney for the Commonwealth is a recommendation only, and that the judge imposing sentence may or may not follow any such recommendation … [he] also understand[s] that the [c]ourt's failure to sentence in accordance with the Commonwealth's recommendation shall not be a basis for withdrawing any plea.'") (emphasis in original).
Finally, where, as here, the sentencing court had the benefit of a pre-sentence investigation report, "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.'" Moury, 992 A.2d at 171. Accordingly, based on the foregoing, we hold that Appellant has not raised a substantial question and we are precluded from addressing Appellant's challenge to the discretionary aspects of his sentence.
Appellant's second issue on appeal concerns his credit for time served. Without citation to any authority, Appellant argues that the 525 days credit he accrued should be imposed simultaneously at his consecutive sentences for count 10 and count 15. Appellant's Brief at 28-29. Appellant's assertion is in error. As the sentencing court explained,
Where a defendant argues that he has been denied a statutorily prescribed credit for time served, the argument implicates the legality of the sentence. Commonwealth v. Clark, 885 A.2d 1030, 1032 (Pa.Super. 2005) (citation omitted); see also Commonwealth v. Menezes, 871 A.2d 204, 207 (Pa.Super. 2005). Credit for time served is governed by 42 [Pa.C.S.] § 9760, which reads, in pertinent part, as follows:
(1) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such a charge is based. Credit shall include credit for time spent in custody prior to trial, during trial, pending sentence, and pending the resolution of an appeal.
42 [Pa.C.S.] § 9760(1). "Section 9760 does not contemplate credit for time served to be awarded twice. Similarly, our Courts have consistently held that such double credit for time served is neither contemplated, nor authorized, by Section 9760 …" Barndt v. PA Dept. of Corrections, 902 A.2d 589, 595 (Pa. Commw. Ct. 2006); see also Taglienti v. Dep't of Corrections, 806 A.2d 988, 993 (Pa. Commw. Ct. 2002) ("[Credit for time served prior to the sentencing date is governed by Section 9760 which does not provide for credit for time on unrelated offenses or when credit has been already credited against another sentence."). Where a defendant is sentenced on multiple, unrelated offenses, time served may only be granted on a single sentence. See Bright v. PA Bd. of Probation and Parole , 831 A.2d 775, 778-79 (Pa. Commw. Ct. 2003).
The Court initially granted [Appellant] 525 days time served on each of Counts 9, 10, and 15, but later retracted two of those grants and limited the credit to Count 9 alone. … When a defendant is in custody at the time of sentence, any sentences on which he or she is to receive credit for time served are deemed to begin on the date of commitment for those offenses. See 3 Pennsylvania Criminal Law and Practice § 40.04(9)(e). Because the [c]ourt imposed concurrent sentences on Counts 9 and 15, credit for time served will be accredited to both sentences as they are deemed to have begun on the date of [Appellant's] commitment, or on or about April 8, 2011.
However, because the [c]ourt determined that the sentence on Count 10 should run consecutively, it will not commence until the completion of the sentences on Counts 9 and 15. [Appellant, ] therefore[, ] will not receive credit for 525 days time served a second time on this sentence. To otherwise credit [Appellant] would in essence give [Appellant] credit for 1050 days, which the statute neither requires nor permits.
Sentencing Court Opinion, 1/11/2013, at 9-11. We agree with the rationale of the sentencing court. Section 9760 provides that Appellant should receive full credit for the 525 days spent incarcerated prior to his plea. This does not mean that Appellant is entitled to 525 days at each count to which he pleaded guilty. Rather, Appellant is entitled to have 525 days credit applied to his aggregate sentence. Because this has been done, we discern no error on the part of the sentencing court.
Judgment of sentence affirmed.