Com. v. Jones, M., Jr. ( 2018 )


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  • J-S49042-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    MICHAEL ANTHONY JONES, JR.                 :
    :
    Appellant               :   No. 397 MDA 2018
    Appeal from the Judgment of Sentence February 5, 2018
    In the Court of Common Pleas of Adams County Criminal Division at
    No(s): CP-01-CR-0000887-2017
    BEFORE:      SHOGAN, J., STABILE, J., and STEVENS*, P.J.E.
    MEMORANDUM BY STEVENS, P.J.E.:                      FILED SEPTEMBER 18, 2018
    Appellant Michael Anthony Jones, Jr., appeals from the judgment of
    sentence entered in the Court of Common Pleas of Adams County on February
    5, 2018, following his guilty plea to a single count of Possession with Intent to
    Deliver a Controlled Substance (PWID).1 Following our review, we affirm.
    On November 10, 2017, Appellant entered an open guilty plea to one
    count of PWID.       Appellant’s charge arose out of the execution of a search
    warrant at a home in Adams County on July 28, 2017. When officers entered
    the residence, Appellant fled from the first floor and ultimately was discovered
    hiding in the corner of the attic.        A search of Appellant revealed a plastic
    baggie containing 14 grams of heroin in his right front pocket. Officers also
    found a bundle of smaller baggies of suspected heroin in that pocket.
    ____________________________________________
    1   35 Pa.C.S.A. § 780-113(a)(30).
    ____________________________________
    * Former Justice specially assigned to the Superior Court.
    J-S49042-18
    Appellant was arrested and charged with possession of fourteen (14) grams
    of heroin with the intent to deliver. At that time, Appellant had absconded
    from house arrest in Philadelphia where he had two pending robbery charges.
    See Presentence Investigation Report (PSI) at 4-5.
    At the sentencing hearing held on February 5, 2018, Appellant requested
    a prison sentence in the standard guideline range of nine (9) months to sixteen
    (16) months and expressed his remorse for his crime.         N.T. Sentencing,
    2/5/18, at 3-9.    The Commonwealth asked the trial court to impose an
    aggravated-range sentence of two (2) years to four (4) years in prison in light
    of Appellant’s pending robbery charges in Philadelphia and his lack of any
    connection to Adams County. N.T. Sentencing, 2/5/18, at 3.
    After hearing the parties’ respective arguments and Appellant’s
    statement, and having the benefit of a PSI, the trial court entered an Order
    which was filed as a separate and distinct document. That Order reads, in
    relevant part, as follows:
    ***
    The [c]ourt has received and reviewed a presentence
    investigation report.     [Appellant] has four arrests with one
    conviction. Standard guideline range is 9 to 16. [Appellant] has
    no known ties to the Adams County community and the facts of
    this case are that he was in possession of 14 grams of heroin with
    the intent to deliver it here in Adams County.
    Based upon the nature of the offense, the fact that
    [Appellant] is bringing heroin into our community from outside,
    selling it to residents living here within Adams County, the
    sentence of the [c]ourt is that [Appellant] will serve no less than
    two years nor more than four years in a state correctional
    institution designated by the State Department of Corrections.
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    ***
    Order of Court, filed 2/7/18, at ¶¶ 2-3.
    When the trial court asked Appellant if he had any questions, Appellant
    indicated he did and the following exchange ensued:
    [Appellant]: I understand that I didn’t have any ties to
    anything out here at Adams County as well as the fact that I didn’t
    have like—in my discovery it don’t say that I had any relationships
    or any dealings with anybody out here that I was just caught. I
    just had the heroin in my possession.
    [The Court]: Well, as you indicated in your observation
    earlier is that we are fairly strict here and we do take that
    seriously. Your attorney has recognized and everyone knows that
    heroin is a poison killing people. So anyone that has it in their
    possession with intent to deliver is going to be dealt with in the
    most severe manner. So that’s the rational[e] of my sentencing
    and I do wish you good luck.
    N.T. Sentencing, 2/5/18, at 10.
    On March 5, 2018, Appellant filed a timely notice of appeal. On that
    same date, the trial court directed Appellant to file a concise statement of the
    matters complained of on appeal within twenty-one (21) days pursuant to
    Pa.R.A.P. 1925(b). On March 26, 2018, Appellant filed his concise statement
    wherein he raised the following issue:
    1.    The [c]ourt abused its discretion when it found [Appellant’s]
    lack of residency in Adams County to be an aggravating factor for
    purposes of sentencing [Appellant] to a period of incarceration in
    excess of the Standard Guideline Range.
    In his brief, Appellant presents the following Statement of Question Involved:
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    Did the lower court impose an illegal sentence when it
    imposed a disparate “out-of-county” sentence, namely that it used
    Appellant’s non-residency as the only extraneous factor to
    aggravate his sentence?
    Brief for Appellant at 5.
    The manner in which Appellant has framed his issue on appeal conflates
    a challenge to the discretionary aspects of his sentence and a challenge to the
    legality of his sentence, although it is well-established that such claims are
    distinct.   In his concise statement, Appellant essentially asserts his sentence
    was excessive, and a claim that a sentence is harsh and excessive implicates
    the discretionary aspects of a sentence. Commonwealth v. Treadway, 
    104 A.3d 597
    , 599 (Pa.Super. 2014). However, in his appellate brief, Appellant
    challenges the legality of his sentence, arguing it violates his equal protection
    rights guaranteed by the Fourteenth Amendment of both the United States
    and Pennsylvania Constitutions. A challenge to the legality of one’s sentence
    is a question of law. Commonwealth v. Barnes, 
    167 A.3d 110
    , 116
    (Pa.Super. 2017)(en banc).
    Before reaching the merits of Appellant’s discretionary aspects of
    sentence claim, we first must determine whether this Court has jurisdiction in
    this case, for challenges to the discretionary aspects of sentencing do not
    entitle an appellant to an appeal as of right. Commonwealth v. Glass, 
    50 A.3d 720
    , 726 (Pa.Super. 2012), appeal denied, 
    63 A.3d 774
    (Pa. 2013). In
    doing so, we engage in a four-part analysis to determine:
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    (1) whether the appeal is timely; (2) whether Appellant preserved
    his issue; (3) whether Appellant's brief includes a concise
    statement of the reasons relied upon for allowance of appeal with
    respect to the discretionary aspects of sentence; and (4) whether
    the concise statement raises a substantial question that the
    sentence is appropriate under the sentencing code. ... [I]f the
    appeal satisfies each of these four requirements, we will then
    proceed to decide the substantive merits of the case.
    Commonwealth v. Colon, 
    102 A.3d 1033
    , 1042–43 (Pa.Super. 2014)
    (citation omitted), appeal denied, 
    109 A.3d 678
    (Pa. 2015).
    It is well-established that “[o]bjections 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).      Moreover, an appellant cannot raise a
    discretionary challenge to his or her sentence for the first time in a Rule
    1925(b) statement. See Commonwealth v. Coleman, 
    19 A.3d 1111
    , 1118
    (Pa.Super. 2011) (issues raised for the first time in Rule 1925(b) statement
    are waived); See also Commonwealth v. Watson, 
    835 A.2d 786
    , 791
    (Pa.Super. 2003) (“a party cannot rectify the failure to preserve an issue by
    proffering it in” in a Rule 1925(b) statement).
    Herein, the record reflects that while Appellant filed a timely notice of
    appeal, he did not raise the issue he presented in his concise statement before
    the trial court at the time of sentencing, nor did he file a post-sentence motion
    preserving the same. Because Appellant failed to preserve a challenge to the
    discretionary aspects of his sentence before the trial court, he failed to satisfy
    the second prerequisite to appellate review under 
    Colon, 102 A.3d at 1042
    –
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    43. We, therefore, may not exercise our discretion to resolve his discretionary
    aspects of sentencing claim. Accordingly, we find this issue waived.
    Notwithstanding, in his appellate brief Appellant challenges the legality
    of his sentence.
    Generally, an appellant cannot raise new legal theories for
    the first time on appeal. Pa.R.A.P. 302(a); Commonwealth v.
    Truong, 
    36 A.3d 592
    , 598 (Pa.Super. 2012) (en banc), appeal
    denied, 
    618 Pa. 688
    , 
    57 A.3d 70
    (2012). Notwithstanding,
    because Appellant's claim presents a challenge to the legality of
    his sentence, it is not waived, even though Appellant raised it for
    the first time in his appellate brief. Commonwealth v. Barnes,
    
    637 Pa. 493
    , 495, 
    151 A.3d 121
    , 122 (2016). Legality–of–
    sentence claims are not subject to traditional waiver doctrine.
    Commonwealth v. Wolfe, 
    636 Pa. 37
    , 51, 
    140 A.3d 651
    , 660
    (2016).”
    Commonwealth v. Golson, 
    2018 WL 2473514
    , at *5 (Pa.Super. filed June
    4, 2018).   Thus, we will review Appellant’s challenge to the legality of his
    sentence, and in doing so “we are mindful that our standard of review is de
    novo, and our scope of review is plenary.” 
    Id. (citation omitted).
    Appellant claims “[t]his case involves a sentence which explicitly
    considered and punished the exercise of Appellant’s constitutional right of
    intrastate travel.” Brief for Appellant at 2. Appellant reasons that as a result,
    the trial court not only misapplied the sentencing guidelines but also imposed
    an illegal sentence as “it implicates Appellant’s due process guarantees and
    violates his right to equal protection under the law.” 
    Id. Appellant posits
    he
    has a right to freedom of movement and to travel unfettered within the
    Commonwealth of Pennsylvania and reasons these rights were violated by the
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    J-S49042-18
    trial court’s imposition of an “out-of-town tax,” namely an aggravated-range
    sentence based on the sole extraneous factor that he did not reside in Adams
    County. 
    Id. at 11,
    14-15, 18. Following our review of the record, we disagree.
    It is true that in a general sense, citizens enjoy a constitutional right to
    freedom of movement. See, e.g. Commonwealth v. Doe, 
    167 A. 241
    , 242
    (Pa.Super. 1933) (“Freedom of locomotion, although subject to proper
    restrictions, is included in the ‘liberty’ guaranteed by our Constitution (see
    article 1, §§ 1, 9).”). However, such right is not without limitation. See, e.g.,
    Commonwealth v. Patchett, 
    425 A.2d 798
    , 800 (Pa.Super. 1981) (“... the
    legislature, in the proper exercise of its police power, may regulate the use of
    the highways of the Commonwealth for the purpose of promoting public
    safety. To accomplish that purpose, the legislature may limit the enjoyment
    of personal liberty and property.”) (citations omitted).
    The record herein evinces the trial court did not deprive Appellant of a
    benefit or subject him to a greater penalty for traveling within the
    Commonwealth of Pennsylvania; rather, it penalized him for possessing with
    the intent to deliver a significant amount of heroin in Adams County, a crime
    to which he pled guilty. A review of the sentencing transcript reveals that
    Appellant’s residence in another county was not the sole extraneous factor
    that the trial court considered and utilized when sentencing Appellant in the
    aggravated range; this was merely just one factor among several, including a
    consideration of Appellant’s PSI report and the sentencing guidelines, that led
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    J-S49042-18
    to his sentence. See N.T. Sentencing, 2/5/18, at 2, 9-10.     Commonwealth
    v. Downing, 
    990 A.2d 788
    , 794 (Pa.Super. 2010) (stating “where a trial court
    is informed by a pre-sentence report, it is presumed that the court is aware
    of all appropriate sentencing factors and considerations, and that where the
    court has been so informed, its discretion should not be disturbed”) (citation
    and quotation marks omitted)
    As the trial court explained in its rule 1925(a) Opinion:
    Instantly, from th[e] presentence investigation report it was
    learned that the Appellant had four adult arrests with one
    conviction. The current offense had an offense gravity score of 8
    and [Appellant’s] prior record score was 0 generating a standard
    guideline range sentence of 9 to 16. The aggravated range was
    +9. The presentence investigation report also confirmed the
    Appellant was a fugitive from justice out of Philadelphia County
    where he was wanted to stand trial on two separate felony robbery
    cases with additional charges including burglary of a home with
    person present, as a felony of the first degree and firearms
    charges[.]
    During the sentencing hearing the [c]ourt was reminded
    that for the current offense Appellant, who had no known ties to
    the Adams County area, came to Adams County possessing the
    relatively large amount of 14 grams of heroin, for the purpose of
    distributing and selling it in our community. There was no
    indication that Appellant was an addict in possession of some
    controlled substance and selling a small portion of his own supply
    in order to feed his habit. The gravity of Appellant’s offense was
    readily apparent and acknowledged by the Defense.
    ***
    All factors of the Sentencing Code were considered by this
    [c]ourt. But in this instance, paramount among those factors, was
    the need to protect the public and the gravity of the offense. At
    sentencing the [c]ourt cited the serious nature of the offense and
    the fact that the Appellant was bringing heroin into this
    Community from outside to sell it to residents living here within
    Adams County as the primary reasons this [c]ourt believed a
    sentence in the aggravated range would be appropriate. The
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    J-S49042-18
    [c]ourt considered all of the arguments of Defense counsel and
    the lengthy statement of allocution made by Appellant at the time
    of sentencing. Despite supposedly having a prior record score of
    zero Appellant’s own statement at sentencing was that he served
    31 months in the Philadelphia County Prison plus 9 months on
    house arrest. According to his own statement, he was on house
    arrest with electronic monitoring when he absconded Philadelphia
    County and fled to Adams County. He came to Adams County and
    began selling heroin for profit. The conclusion to be drawn from
    the facts of the case is that while the Appellant was a fugitive from
    Philadelphia County where he was wanted to stand trial on
    multiple felony armed robbery charges he chose to make his living
    selling heroin in Adams County.
    The reasons articulated by the [c]ourt, in conjunction with
    the [c]ourt[’]s careful consideration of the arguments of counsel
    and [Appellant’s] own statements, clearly reflect this [c]ourt[’]s
    determination that the conduct of the Appellant, in poisoning our
    Community with a relatively large amount of heroin, warranted a
    sentence in the aggravated range, and that a local sentence
    advocated by Defense counsel would not have adequately
    addressed [Appellant’s] rehabilitative needs nor provided
    adequate protection of the Community.
    Trial Court Opinion, filed 3/29/18, at 4-5.
    Appellant’s arguments to the contrary, the trial court’s pointing out at
    the sentencing hearing that he had no ties to the community, which Appellant
    admitted, See N.T. Sentencing, 2/5/18, at 10, does not equate to an
    infringement on his “right to travel” within the Commonwealth. Indeed, his
    right to intrastate travel was qualified by his own criminal conduct, not an
    arbitrary distinction drawn by the trial court. As we stated above, the trial
    court explained Appellant’s sentence was grounded in its belief that “anyone
    that has [heroin] in their [sic] possession with intent to deliver is going to be
    dealt with in the most severe manner.         N.T. Sentencing, 2/5/18, at 10
    (emphasis added). As such, we find no abuse of discretion.
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    Judgment of sentence affirmed.
    Judge Stabile joins the memorandum.
    Judge Shogan files a concurring memorandum.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 09/18/2018
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