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[U] Commonwealth v. Watterson

Superior Court of Pennsylvania

March 3, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
BRANDON WATTERSON, Appellant

NON-PRECEDENTIAL DECISION

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.

MEMORANDUM

STRASSBURGER, J.

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.[1] 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.[2]

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.[3] 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.[4] 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.[5]

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 ...


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