from the Judgment of Sentence dated June 1, 2016 In the Court
of Common Pleas of Allegheny County Criminal Division at
BEFORE: LAZARUS, SOLANO, and STRASSBURGER, [*] JJ.
Christopher Luketic, appeals from his judgment of sentence of
six to twelve months' incarceration. After careful
review, we vacate the judgment of sentence and remand for
September 22, 2015, Appellant and his friend Nicole Stevens
were arrested for purchasing heroin from a drug dealer named
Lanel Buckner. The Commonwealth described the transaction and
arrest as follows:
[Police detectives] were conducting surveillance in a
high-crime, high-drug trafficking area of the City of
Pittsburgh, when they observed the [co-]defendant, Lanel
Buckner, texting and continuously looking down the street.
They then observed a vehicle driven by another defendant,
Chris Luketic, pull into oncoming traffic and stop directly
in front of Mr. Buckner.
They also were able to later identify the front seat
passenger of Mr. Luketic's vehicle as the third
co-defendant, Nicole Stevens.
At that time, detectives were able to observe a transaction
where they observed Mr. Buckner hand Mr. Luketic suspected
heroin in exchange for United States currency.
At that point, the detectives initiated a traffic stop on the
vehicle in which Mr. Luketic and Miss Stevens were operating.
At that time, Miss Stevens did hand the detectives eight
stamp bags of suspected heroin, and pointed out several more
on the floor of the vehicle. They also observed a loaded
syringe on the floor of the rear of their vehicle.
N.T., 6/1/16, at 18-19.
1, 2016, Appellant entered an open plea of guilty to
possession of a controlled substance. Buckner also pleaded guilty,
and he was sentenced immediately prior to Appellant to three
to six years' incarceration in a state correctional
institution. N.T. at 21. While sentencing Buckner, the trial
I'm giving you three to six years in the State
Correctional Institution. You'll be on probation for five
years after you get through with that. And zero tolerance for
drugs. Maybe marijuana will be legalized by then.
But I don't know how many more opportunities I can give
you. You are not a dumb kid. You have just chosen you are
going to sell dope to people. And that's the consequence.
You have to deal with the consequences of having a blatant
disregard for everyone else's life. You want to sell
dope. You have dope fiends like him ([i]ndicating
[Appellant])[.] He is going to jail, too. He is not walking
out of here either.
N.T. at 21-22 (emphasis added).
conclusion of Buckner's sentencing hearing, the court
ordered that Appellant's urine be tested. While Appellant
was absent from the courtroom, the court had the following
exchange with Appellant's defense counsel:
[APPELLANT'S COUNSEL:] . . . I have concerns with my
client being sentenced before the Court, given the
Court's statement on the record and indicating that the
Court was already predisposed to enter a jail sentence of
some sort before I had the opportunity to elicit testimony --
THE COURT: He is sitting there sweating like a
I believe he is going to have hot urine.
[APPELLANT'S COUNSEL:] I'm objecting to the Court
imposing sentence if the Court was willing to enter a jail
sentence without me eliciting any mitigating factors, because
his guidelines in the standard range are either RS
[restorative sanctions] to 1 and RS to 9 or an RS - [¶]
The District Attorney and I are on two different pages as to
what his prior record score is.
THE COURT: Why don't you wait until your client comes
back. I don't want to address anything you are saying
without him being here. I'll give you an opportunity to
address all of that.
N.T. at 26-27.
Appellant's return, his sentencing proceeding began. The
court began by inquiring about Appellant's urine test.
Although the test showed that Appellant did have opiates in
his system, the court determined that Appellant had a
prescription for them. N.T. at 28.
counsel then renewed his objection to Appellant being
sentenced by the court, in the following exchange:
[APPELLANT'S COUNSEL:] Briefly, Your Honor -- as the
Court instructed, we were waiting for [Appellant] to come
back [from his urine test]. I want to impose an objection on
the record since the Court indicated in this co-defendant
case that the Court was inclined to send [Appellant] to jail.
THE COURT: I am going to send him to jail. Let's not have
any equivocation. He is going to jail, because he and the guy
who went to jail, they are both opposite sides of the same
coin. That's why he is going to jail, because he creates
the guy that is with him. But go ahead.
[APPELLANT'S COUNSEL:] If I can make a record on behalf
of my client. The Court has already prejudged that matter
before I got to even elicit any testimony out of my client
that would bear upon any mitigating factors. [¶] My
client, based upon a prior record score of one is within RS
to 6 range. He is within a probationary range. [¶] Our
sentencing code is quite clear that before this Court imposes
judgment of any kind, they need to pay attention in these
THE COURT: I'm all ears. I'm all ears. Tell me
[APPELLANT'S COUNSEL:] I have concerns that this Court
doesn't care what is mitigating, based upon that
determined --already expressed --
THE COURT: Tell me what is mitigating. We don't have to
have any guesswork. Tell me what is mitigating. Give me the
N.T. at 28-29 (emphases added).
Appellant's counsel then presented a case for a mitigated
sentence based on the following factors: Appellant's
acceptance of responsibility,  his drug addiction, the fact he
is not a drug dealer, his attempts at recovery, his
employment status, and his relationship with his
three-year-old daughter. N.T. at 29-36. Neither the court nor
defense counsel made any reference during this discussion (or
at any other time) to any pre-sentence investigation report
("PSI") regarding Appellant, and there is no
indication that the court ordered one, even though Appellant,
who had a prior conviction for possession of a controlled
substance, could have received a sentence in excess of one
year of incarceration for his misdemeanor. There is no PSI
in the record, and the record does not indicate whether
either party waived ordering of a PSI.
defense counsel's presentation regarding mitigating
factors, after it was established that Appellant is 28 years
old and has an opiate addiction, the court engaged with
Appellant by asking him, among other things, what steps he
had taken to pursue recovery from his addiction and what
evidence he could provide of those steps. N.T. at
32-35. At the end of this exchange, the court
We are here imposing sentencing for cases in which you pled
guilty to, because we have a heroin epidemic in this region.
We have people who sell dope. We have people who use dope. We
have people who drive people to get dope, and they
disseminate it throughout the county. I don't believe
they are independent. I believe they are all a part of the
same animal. Everyone is going to take some share of fat in
the game, including you.
Id. at 35-36. When asked what else he would like to
tell the court, Appellant stated, "I plan on attending
treatment whenever I leave here, " to which the court
responded, "When you leave. We are going to get you some
help." Id. at 36. Appellant's counsel
requested a sentence of probation, house arrest, or work
release, and for Appellant to go to treatment. Id.
at 37. Defense counsel closed by saying, "And I would
renew my objection to the Court imposing sentence, based upon
a jail sentence, and having that predetermined before I even
had the opportunity to elicit that information."
court then sentenced Appellant to serve six to twelve
months' incarceration in county prison, and a year of
probation. N.T. at 37. The court stated, "Hopefully
you'll get some intervention while you are there."
Id. The court noted that it was Appellant's
second conviction for this offense, and stated to Appellant,
"You are as guilty as the guy who was with you. You
conspired to distribute drugs, to sell drugs, to consume
drugs. He is going to the State Correctional Institution, and
you are going to the Allegheny County Jail."
filed no post-sentence motion following his sentencing, but
filed a notice of appeal on June 2, 2016. Appellant's
sentence was stayed pending the outcome of this appeal.
See Order, 6/9/16.
Rule 1925(b) Statement, Appellant argued that the court's
predisposition to sentence Appellant to jail meant that the
court should have recused from participating in the
sentencing proceeding and that the sentence was invalid
because it was not individualized. In response, the trial
court issued an opinion pursuant to Rule 1925(a) of the Rules
of Appellate Procedure. The court began the opinion by
stating its perspective on the case:
Mr. Luketic is a drug addict. He buys heroin and then
consumes this poison. But, the poison is not self-centered.
His purchase of this product allows others - like his
co-defendant - to sell this modern day plague. Both the buyer
and the seller deserve punishment. Luketic feels his 6-12
months in the county jail followed by a year's probation
is too harsh. So [he] has appealed from the Court's June
1, 2016, sentence.
Luketic and a female friend drive to an area of the City of
Pittsburgh known for its criminal activity. Lanel Buckner is
open for business. He is seen texting and constantly looking
around. A car pulls up. It stops in front of Buckner. Luketic
is driving. Ms. Nicole Stevens is riding shotgun. Buckner
hands Luketic what police believe to be heroin. Money goes to
Buckner. Luketic drives away. He doesn't get far. Police
converge on the car. They recover 8 stamp bags of heroin from
Ms. Stevens. A "loaded syringe" sits on the floor
of the back seat. . . .
There was nothing special about the sentencing hearing. . . .
The Sentencing Guidelines suggested a standard range sentence
of restorative sanctions to 6 months in jail. The Court's
sentence began at the high end of that range.
Tr. Ct. Op., at 1-2 (citations to record omitted). After
finding Appellant's recusal issue waived, the court
. . . [Appellant]'s real complaint is the manner in which
this Court conducted the sentencing hearing. [Appellant] does
not like the fact that the Court came to that portion of the
proceeding with a preconceived notion as to what is fair and
just and then articulated its thinking. The Court then
solicited [Appellant], on more than one occasion to advance
mitigating factors. [Appellant] identified the following
mitigating factors: he took responsibility for his action; he
did so very early in the process; matter does not involve a
significant amount of drugs; he had not used the recently
purchased drugs; he was currently employed; he has been
addicted for 2 years; he is only a user; he took some very