Com. v. Graham, V. ( 2021 )

J-S44042-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37
COMMONWEALTH OF PENNSYLVANIA =: IN THE SUPERIOR COURT OF
: PENNSYLVANIA
VINCENT ERIC GRAHAM
Appellant : No. 472 MDA 2020
Appeal from the Judgment of Sentence Entered February 24, 2020
In the Court of Common Pleas of Luzerne County Criminal Division at No(s):
CP-40-CR-0000975-2019
COMMONWEALTH OF PENNSYLVANIA =: IN THE SUPERIOR COURT OF
: PENNSYLVANIA
VINCENT ERIC GRAHAM, II
Appellant : No. 473 MDA 2020
Appeal from the Judgment of Sentence Entered February 24, 2020
In the Court of Common Pleas of Luzerne County Criminal Division at No(s):
CP-40-CR-0000976-2019
BEFORE: BENDER, P.J.E., NICHOLS, J., and MCCAFFERY, J.
MEMORANDUM BY MCCAFFERY, J.: FILED: MAY 6, 2021
Vincent Eric Graham, II (Appellant) appeals from his judgment of
sentence entered in Luzerne County Court of Common Pleas, as a result of his
plea to two sets of drug charges. We previously remanded this matter so that
the trial court could prepare an opinion per Pa.R.A.P. 1925.1 The trial court
1 The trial court initially, and reasonably, believed Appellant to have violated
the court-imposed deadline to submit a statement per Pa.R.A.P. 1925(b).
J-S44042-20
having done so, we now review this matter and affirm the trial court’s
judgment of sentence.
Appellant made an agreement with the Commonwealth whereby he
entered guilty pleas to two charges of possession with the intent to deliver
(PWID)2 Oxycodone, between 100 and 1000 pills, and one charge of
possession of a small amount of marijuana.? In exchange for entering an open
plea and for his agreement to pay laboratory fees, to forfeit certain funds, and
to pay the costs of prosecution, the Commonwealth agreed to withdraw other
charges. N.T. Plea Hrg., 11/4/19, at 2-3. The details of the incidents leading
to Appellant’s arrest are detailed in a prior opinion of this Court.4
However, the court’s order per Rule 1925 was entered on March 13, 2020,
during the early days of our nation’s response to COVID-19. Our Supreme
Court had entered an order extending all filing deadlines, and that order
covered Appellant’s deadline to file a responsive statement and rendered
Appellant’s statement timely filed, though in the absence of the statewide
order it would not have been. See In re Gen. Statewide Judicial
Emergency, 229 A.3d 229, 230 (Pa. Apr. 1, 2020) (“any legal papers or
pleadings which are required to be filed between March 19, 2020, and April
30, 2020, SHALL BE DEEMED to have been timely filed if they are filed by May
1, 2020, or on a later date as permitted by the appellate or local court in
question.”). Thus, we remanded to give the trial court an opportunity to
respond to the content of Appellant’s statement. The parties were permitted
to file supplemental briefs in response to the trial court’s opinion.
235 P.S. § 780-113(a)(30).
335 P.S. § 780-113(a)(31).
4 See Commonwealth v. Graham, 473 MDA 2020 (Pa. Super. Nov. 23,
2020) at 2.
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Ultimately, Appellant was sentenced to an aggregate term of 84 to 168
months’ imprisonment, where two consecutive terms of 42 to 84 months’
imprisonment were imposed for each PWID conviction, with a concurrent 15
to 30 days’ imprisonment for Appellant’s marijuana conviction. Order,
2/24/20.°
Appellant’s sole challenge on appeal is to the discretionary aspects of
his sentence. He filed a statement pursuant to Pa.R.A.P. 1925(b), in which
he argues that his sentence, which was in the standard range but consecutive,
is excessive.® It is not the sentences per se but their having been imposed
consecutively that prompts his claim.
Appellant argues that the trial court’s statement in support of its
sentence is insufficient, and fails to reflect consideration of statutory
requirements. Appellant’s Supplemental Brief at 15. Further, Appellant
> On May 5th, this Court issued a rule to show cause why these consolidated
appeals should not be quashed in light of Commonwealth v. Walker, 185
A.3d 969 (Pa. 2018). Because Appellant has demonstrated that he filed two
distinct appeals (by, for instance, paying separate filing fees as to each
appeal) and because this Court has declined to quash in similar circumstances,
see Commonwealth v. Jerome Johnson, 236 A.3d 1141 (Pa. Super.
2020)(en banc), we decline to quash here.
6 Appellant was arrested in December of 2018, which means that the fourth
amendment to the Seventh Edition of the Sentencing Guidelines applied to his
sentence. PWID of a Schedule I or II drug (such as Oxycodone), 100-1000
pills, carries an offense gravity score of eleven. See Sentencing Guidelines,
7th Edition Amendment 4 Supplement (Effective 6/1/2018), at 303.15
(offense listing). Applying the matrix, a prior record score of zero and offense
gravity score of eleven yields a standard range of 36 to 54 months.
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contends that the trial court failed to consider his prior record, age, personal
characteristics, and rehabilitative potential in crafting his sentence. Id.The Commonwealth argues that Appellant’s claims are not properly
preserved, that he has not presented a substantial question, and that the trial
court did not abuse its discretion in imposing sentence. Commonwealth's
Supplemental Brief at 7.
The trial court treated Appellant’s discretionary aspects claim as
preserved and addressed its substance, offering a powerful description of its
sentencing powers and rationale. The trial court points out that “[a] bald claim
of excessiveness due to the consecutive nature of a sentence will not raise a
substantial question.” Trial Court Supplemental Opinion at 4 (unpaginated),
quoting Commonweatith v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013).
The trial court confirms that it reviewed the pre-sentence report prepared for
Appellant’s sentencing, and elected to impose low-standard range sentences
but to impose them consecutively, as Appellant committed two distinct felony
drug offenses ten days apart from one another, and is not entitled to a
“volume discount.” See id. at 4-5.
Trial courts have broad discretion in imposing sentence, and we review
any exercise of that discretion for abuses thereof. Commonwealth v. Smith,
673 A.2d 893, 895 (Pa. 1996). An abuse of discretion, as opposed to a mere
error of judgment, is manifestly unreasonable or the result of partiality,
prejudice, bias, or ill-will. Id. We will not reverse in scenarios where this
Court might have exercised discretion differently, but only where the sentence
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imposed reflects the aforementioned factors, or is so devoid of support as to
be clearly erroneous. Commonwealth v. Moury, 992 A.2d. 162, 170 (Pa.
Super. 2010). Where the trial court consults a pre-sentence report prior to
sentencing, we presume that the court “was aware of relevant information
regarding the defendant’s character and weighed those considerations along
with mitigating statutory factors.” See Commonwealth v. Devers, 546 A.2d
12, 18 (Pa. 1988). “When imposing sentence, the court must consider both
the character of the defendant, and the particular circumstances of the offense
in light of the legislative guidelines for sentencing.” Commonwealth v.
Warden, 484 A.2d 151, 154 (Pa. Super. 1984) (citation omitted). “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.” Moury, 992 A.2d at 171-72 (citation
omitted).
[W]e 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.[ ] § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006), appeal
denied, 909 A.2d 303 (Pa. 2006) (citations omitted). It appears that the
Commonwealth is correct that Appellant has not preserved his claim, as no
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objection was made at sentencing and no post-sentence motion was filed
pursuant to Pa.R.Crim.P. 720. “[A]n appellant can seek to appeal
discretionary sentencing issues only after preserving them during the
sentencing hearing or in post-sentence motions.” Commonwealth v.
Nischan, 928 A.2d 349, 355 (Pa. Super. 2007) (citation omitted).
We direct that a copy of the trial court’s opinion of December 22, 2020
be filed along with this memorandum and attached to any future filings in this
case.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Est
Prothonotary
Date: 05/06/2021
_ os Circulated 04/15/2021 03:51 PM
COMMONWEALTH OF PENNSYLVANIA _ : IN THE COURT OF COMMON PLEAS
OF LUZERNE COUNTY
VS. CRIMINAL DIVISION
VINCENT ERIC GRAHAM, II NOS: 975, 976 OF 2019
SUPPLEMENTAL OPINION PURSUANT TO RULE 1925(a)(1)
BY THE HONORABLE MICHAEL T, VOUGH
This matter arises from two informations filed by the Luzerne County District Attorney
against Defendant, Vincent Eric Graham. Information number 975 of 2019 charged Defendant
with possession with intent to deliver a controlled substance, possession of a small amount of
marijuana and possession of drug paraphernalia. Information number 976 of 2019 charged
Defendant with two counts of possession with intent to deliver a controlled substance, two
counts of possession of a small amount of marijuana and one count of possession of drug
paraphernalia.
On November 14, 2019, Defendant pled guilty to one count of possession with intent to
deliver a controlled substance on each information. The controlled substance was oxycodone
and Defendant possessed 177 pills during a search of his vehicle on December 17, 2018 and 337
pills during a search incident to arrest on December 7, 2018. He also pled guilty to one count
of possession of a small amount of marijuana.
Sentencing occurred on February 24, 2020. Defendant received a sentence of forty-two
to eighty-four months on both cases. These sentences were to be served consecutively and were
within the standard range of the sentencing guidelines. The sentences were actually at the lowest
end of the standard range. His sentence on the marijuana charge was fifteen to thirty days to be
served concurrently. Defendant received credit for 285 days of incarceration served prior to
sentencing.
Rather than file a post-sentence motion as permitted by Pa.R.Crim.P. 720(B)(1)}{a), a
notice of appeal was filed on behalf of Defendant on March 10, 2020. An order was then issued
by this Court on March 13, 2020 which required that a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b) be filed by Defendant within twenty-one days. Counsel
for Defendant filed a concise statement on April 4, 2020. Defendant’s concise statement
essentially alleges an abuse of discretion and error of law in sentencing him within the standard
range and imposing his sentences to be served consecutively. The allegations of an abuse of
discretion and error of law have no merit whatsoever.
When considering whether to affirm a sentencing court’s determination, the proper
standard of review is an abuse of discretion. Commonwealth v. Smith, 673 A.2d 893, 895 (Pa.
1996). “Imposition of a sentence is vested in the discretion of the sentencing court and will not
be disturbed absent a manifest abuse of discretion”. Id. An abuse of discretion is more than a
mere error of judgment. Id. A sentencing court will not have abused its discretion unless the
record discloses that the judgment exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will. Id. “An abuse of discretion may not be found merely
because an appellate court might have reached a different conclusion, but requires a result of
manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as
to be clearly erroneous.” Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010). “The
rationale behind such broad discretion and the concomitantly deferential standard of appellate
review is that the sentencing court is in the best position to determine the proper penalty for a
particular offense based upon an evaluation of the individual circumstances before it.” Id.There is no absolute right to appeal the discretionary aspects of a sentence.
Commonwealth v. Mouzon, 812 A.2d 617, 621 (Pa. 2002). An appellant must demonstrate that
there is a substantial question that the sentence is not appropriate under the sentencing code.
Commonwealth v. Boyer, 856 A.2d 149, 152 (Pa. Super. 2004). A substantial question exists
where appellant sets forth a plausible argument that the sentence violates a particular provision
of the sentencing code or is contrary to the fundamental norms underlying the sentencing
scheme. Commonwealth v. McNabb, 819 A.2d 54, 56 (Pa.Super. 2003). “The determination of
what constitutes a substantial question must be evaluated on a case-by-case basis.”
Commonwealth v. Paul, 925 A.2d 825, 828 (Pa.Super. 2007).
Defendant’s Rule 1925(b) statement sets forth no such claim and no evidence exists of
record to support such a claim. A court’s decision to impose consecutive, rather than concurrent,
sentences does not alone present a substantial question for review. Commonwealth v.
MeWilliams, 887 A.2d 784, 787 (Pa.Super. 2005). A 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 general rule in Pennsylvania is that in imposing a sentence the court has discretion to
determine whether to make it concurrent with or consecutive to other sentences then being
imposed or other sentences previously imposed.” Commonwealth v. Graham, 661 A.2d 1367,
1373 (Pa. 1995). “A bald claim of excessiveness due to the consecutive nature of a sentence will
not raise a substantial question.” Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa.Super.
2013). “An allegation that a sentencing court failed to consider or did not adequately consider
certain factors does not raise a substantial question that the sentence was inappropriate.”
Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545 (Pa.Super. 1995) quoting, Commonwealth
v. Urrutia, 653 A.2d 706, 710 (Pa.Super. 1995). An allegation that a sentence is manifestly
excessive fails to raise a substantial question when the sentence imposed falls within the
statutory limits. Commonwealth v. Coss, 695 A.2d 831, 833 (Pa.Super. 1997). A claim that the
trial court failed to consider the defendant’s rehabilitative needs, age and educational background
does not present a substantial question. Commonwealth v. Cannon, 954 A.2d 1222, 1228-29
(Pa.Super. 2008).
Even if it were determined that Defendant raised a substantial question regarding the
sentence imposed, his appeal must fail. “When imposing a sentence, a court is required to
consider the particular circumstances of the offense and the character of the defendant.”
Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.Super. 2002) appeal denied, 868 A.2d 1198 (Pa.
2005) cert. denied, 545 US. 1148, 125 S.Ct. 2984, 162 L.Ed.2d 902 (2005). “In particular, the
court should refer to the defendant’s prior criminal record, his age, personal characteristics and
his potential for rehabilitation.” Id.Where pre-sentence reports exist, we shall continue to presume that
the sentencing judge was aware of relevant information regarding the
defendant’s character and weighed those considerations along with
mitigating statutory factors. A pre-sentence report constitutes the
record and speaks for itself. In order to dispel any lingering doubt
as to our intention of engaging in an effort of legal purification, we
state clearly that sentencers are under no compulsion to employ checklists or any
extended or systematic definitions of their punishment procedure. Having been
fully informed by the pre-sentence report, the sentencing court’s discretion should
not be disturbed.
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1998). In addition, Pennsylvania law views a
sentence as appropriate under the Sentencing Code when it is within the standard range of the
guidelines. Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super. 2010). A sentence imposed
within the guidelines may be reversed only if application of the guidelines is clearly
unreasonable. Commonwealth v. Macias, 968 A.2d 773, 777 (Pa.Super. 2009); 42 Pa.C.S.A.
Section 9781(c). Unreasonable means a decision that is either irrational or not guided by sound
judgment. Commonwealth v. Walls, 926 A.2d 957, 963 (Pa. 2007). A trial court is not required
to provide a statement of reasoning for a sentence imposed within the standard range of the
sentencing guidelines. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa.Super. 2015).
Before sentencing Defendant, this Court had an opportunity to review the pre-sentence
investigation report prepared by the Luzerne County Probation Department and consider the
information contained therein. The standard range of the guidelines for possession with intent to
deliver a controlied substance is forty-two to sixty months based on Defendant’s prior record
score of one. The standard range for possessing a small amount of marijuana is restorative
sanctions to fifteen days. Defendant’s sentence of forty-two to eighty-four months on the
possession with intent charges was at the lowest end of the standard range. Discretion was
exercised in imposing these sentences to run consecutively. Defendant committed two separate
felony drug offenses ten days apart. He apparently believes that he should serve his sentences
currently and receive a “volume discount” for his crimes which this court is not inclined to
permit. See Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa.Super. 1995).
An aggregate sentence of eighty-four to one hundred sixty-eight months is neither
unreasonable nor excessive. No abuse of discretion occurred. The judgment of sentence
imposed by this Court on February 24, 2020 should be affirmed.
BY THE COURT:
DATE:_December 22, 2020 SNA DAA
MICHAEL T. VOUGH, PJ.