Com. v. Grant, R. ( 2016 )

J-S24026-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RALEIGH NATHAN GRANT,
Appellant No. 1110 MDA 2015
Appeal from the Judgment of Sentence April 23, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s):
CP-36-CR-0004354-2012
CP-36-CR-0004398-2012
CP-36-CR-0004403-2012
BEFORE: GANTMAN, P.J., BOWES, AND MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED MAY 03, 2016
Raleigh Nathan Grant appeals his April 23, 2015 judgment of sentence
of five to eighteen years imprisonment, which was imposed after his original
sentence was vacated by this Court pursuant to Alleyne v. United States,
133 S.Ct. 2151 (2013) and Commonwealth v. Newman, 99 A.3d 86(Pa.Super. 2014) (en banc). We affirm.
Appellant was charged at three docket numbers with three counts of
possession with intent to deliver cocaine (“PWID”) and criminal use of a
communication facility (cell phone), and one count of delivery of heroin,
arising from sales of controlled substances to a confidential informant on
January 27, February 15, and February 17, 2012. During trial on the
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charges, Appellant entered an open guilty plea to all charges and waived his
pre-sentence report. At sentencing, the Commonwealth invoked the two-
year drug-free school zone mandatory minimum sentence at each of the
three cases and the trial court sentenced Appellant to an aggregate term of
imprisonment of seven and one-half to eighteen years.
Appellant obtained reinstatement of his direct appeal rights via the
filing of a PCRA petition. While his appeal was pending, this Court decided
Newman. Appellant argued based on the Newman rationale that the
United States Supreme Court’s decision in Alleyne, rendered the mandatory
minimum sentences imposed for drug-free school zones unconstitutional.
See also Commonwealth v. Bizzel, 2014 PA Super 267 (Pa.Super. 2014)
(holding mandatory minimum for drug-free school zones at 18 Pa.C.S. §
6317 unconstitutional). This Court agreed, vacated judgment of sentence,
and remanded for resentencing without consideration of the § 6317
mandatory minimum. Commonwealth v. Grant, No. 600 MDA 2014
(Pa.Super. 2015).
Resentencing took place on April 23, 2015. Again, Appellant waived a
pre-sentence report. At No. 4403 of 2012, the court re-sentenced Appellant
to twelve months to four years imprisonment on the PWID cocaine charge
and to a concurrent eighteen months to four years for the delivery of heroin.
At No. 4398 of 2012, the court re-sentenced Appellant to twelve months to
four years incarceration on the PWID count. The same sentence was
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imposed for PWID at No. 4354 of 2012, to run consecutively to the term of
imprisonment on the PWID sentence at No. 4398. The sentences imposed
for criminal use of a communication facility remained the same in all three
cases: six months to two years to run consecutively to the PWID sentence at
each count. The aggregate sentence was five to eighteen years
imprisonment and Appellant was determined to be ineligible for the
Recidivism Risk Reduction Incentive (“RRRI”) program.
Appellant filed a timely post-sentence motion in which he asked the
court to modify and reconsider the consecutive nature of the sentence. He
alleged that the imposition of consecutive sentences was “unreasonable and
manifestly excessive” for non-violent drug offenses that occurred within a
thirty-day period. Post-Sentence Motion Pursuant to Pa.R.Crim.P. 720,
5/4/15, at 2. Furthermore, he claimed that the period of confinement was
not consistent with the gravity of the offense, protection of the public, and
his own rehabilitative needs. Id. at 3. The motion was denied by order
dated June 5, 2015, and Appellant timely appealed. He complied with the
court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal.
Appellant presents one issue for our review: “Whether the imposition
of consecutive sentences resulting in an aggregate period of incarceration of
not less than 5 no more than 18 years was manifestly excessive and an
abuse of discretion.” Appellant’s brief at 7.
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Appellant presents a challenge to the discretionary aspects of his
sentence. Such appeals are not as of right, but granted by only upon the
successful showing that there exists a substantial question that the sentence
imposed was inappropriate and contrary to fundamental norms underlying
the sentencing code. Commonwealth v. Fremd, 860 A.2d 515, 524
(Pa.Super. 2004). Additionally, the appellant must preserve the issue in a
timely post-sentence motion or at sentencing, file a timely notice of appeal,
identify the issue in a Pa.R.A.P. 1925(b) statement, and supply a concise
statement in his appellate brief addressing why the issue presents a
substantial question. Commonwealth v. Prisk, 13 A.3d 526, 532-533
(Pa.Super. 2011). Appellant has complied with all of these procedural
prerequisites. Thus, we consider whether the statement raises a substantial
question.
Appellant maintains that imposition of consecutive sentences for three
drug offenses that occurred within one month, together with consecutive
sentences for use of a cell phone in the course of committing those offenses,
was excessive and unduly harsh. He cites Commonwealth v. Dodge, 859
A.2d 771 (Pa.Super. 2004), in support of his position that consecutive
sentencing may raise a substantial question. Appellant also alleges that the
trial court focused on his prior drug conviction and failed to consider
mitigating factors such as his age, family history, lack of a history of drug
abuse, and acceptance of responsibility by pleading guilty, which was
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contrary to the Sentencing Code and the fundamental norms underlying the
sentencing process. See Commonwealth v. Vega, 850 A.2d 1277(Pa.Super. 2004).
Although a challenge to the court’s discretion to impose a consecutive
sentence ordinarily does not raise a substantial question, Commonwealth
v. Johnson, 873 A.2d 704, 709 n.2 (Pa.Super. 2005), we held in
Commonwealth v. Marts, 889 A.2d 608 (Pa.Super. 2005), that this issue
must be examined on a case-by-case basis. In Commonwealth v.
Gonzalez-Dejusus, 994 A.2d 595, 599 (Pa.Super. 2010), this Court stated
that the key to determining whether a consecutive sentencing scheme
presents a substantial question is “whether the decision to sentence
consecutively raises the aggregate sentence to, what appears upon its face
to be, an excessive level in light of the criminal conduct at issue in the case.”
Herein, we have a claim of an excessive sentence, together with a
claim that the court failed to consider mitigating factors. We find a
substantial question as Appellant presents a colorable argument that his
sentence herein was contrary to the Sentencing Code and the fundamental
norms underlying the sentencing process. Commonwealth v. Boyer, 856
A.2d 149, 151-152 (Pa.Super. 2004) (finding substantial question where
defendant argued his sentence was manifestly excessive and the court erred
by considering only the serious nature of the offenses and failing to consider
mitigating factors); Commonwealth v. Perry, 883 A.2d 599, 602
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(Pa.Super. 2005) (failure to consider mitigating factors in conjunction with
excessive sentence raised substantial question).
“Sentencing is a matter vested in the sound discretion of
the sentencing judge, and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion. In this context, an
abuse of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Johnson, 125 A.3d 822, 826 (Pa.Super. 2015).
Additionally, our review of the discretionary aspects of a
sentence is confined by the statutory mandates of 42 Pa. C.S. §§
9781(c) and (d). Subsection 9781(c) provides:
The appellate court shall vacate the sentence and
remand the case to the sentencing court with
instructions if it finds:
(1) the sentencing court purported to
sentence within the sentencing
guidelines but applied the
guidelines erroneously;
(2) the sentencing court sentenced
within the sentencing guidelines but
the case involves circumstances
where the application of the
guidelines would be clearly
unreasonable; or
(3) the sentencing court sentenced
outside the sentencing guidelines
and the sentence is unreasonable.
In all other cases[,] the appellate court shall affirm
the sentence imposed by the sentencing court.
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42 Pa.C.S. § 9781(c). When we review the record, we consider the offense,
the characteristics of the defendant, the trial court’s opportunity to observe
the defendant, the pre-sentence report, the sentencing guidelines and the
basis for the sentence imposed. 42 Pa.C.S. § 9781(d).
Appellant contends that the five to eighteen year prison term resulting
from the imposition of consecutive sentences was manifestly excessive and
an abuse of discretion given the crimes. He maintains that all three offenses
were nonviolent and did not involve a significant quantity of cocaine or
heroin. Appellant’s brief at 16. He charges that the sentencing court
focused solely on his prior record to the exclusion of mitigation evidence. In
support of his claim that he had learned from his past indiscretions, he
pointed to the fact that he had obtained his high school diploma and an
associate’s degree while incarcerated, no history of drug abuse and a
positive work history.
Since Appellant waived the pre-sentence investigation, the trial court
did not have the benefit of a pre-sentence report. However, the record
reveals that trial court considered that Appellant was twenty-seven years
old, had completed an associate’s degree during his incarceration, had a
significant work history, no history of drug abuse, and was married with a
young child. The court also noted that Appellant had a prior record for a
firearms offense and a felony drug violation. The court, however, was not
persuaded by Appellant’s contention that the sentences should run
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concurrently because the offenses were committed in a short period.
Rather, the court cited Commonwealth v. Hoag, 665 A.2d 1212 (Pa.Super.
1995), in rejecting the notion of a volume sentencing discount simply
because the crimes occurred in close temporal proximity. See also
Gonzalez-Dejusus, supra (rejecting claim that appellant was entitled to a
"volume discount" because the various crimes occurred in one continuous
spree). Furthermore, although Appellant accepted responsibility for his
crimes when he pled guilty, we agree with the trial court that Appellant
viewed his conduct as a drug dealer as less culpable than that of persons
who bring drugs into the country. See N.T. Re-Sentencing Hearing,
4/23/15, at 16.
After reviewing the record, we find no evidence that the sentencing
court “ignored or misapplied the law, exercised its judgment for reasons of
partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable
decision.” Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa.Super.
2013). The sentences fell within the standard range of the guidelines and
the trial court stated that, “a lesser sentence would depreciate the
seriousness of [Appellant’s] crimes.” Trial Court Opinion, 7/20/15, at 6. Nor
does the fact that most of the sentences were imposed consecutively render
the sentences excessive or unreasonable. See Commonwealth v. Bowen,
55 A.3d 1254, 1265 (Pa.Super. 2012) (trial court determines whether a
sentence should run consecutive to or concurrent with another sentence
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being imposed). This is not a situation like the one in Commonwealth v.
Dodge, 859 A.2d 771 (Pa.Super. 2004), where we found a claim that
consecutive standard range sentences on thirty-seven counts of theft-related
offenses for an aggregate sentence of 58 1/2 to 124 years of imprisonment
presented a substantial question and was excessive.
The trial court was aware of and gave due consideration to all of the
proper factors in re-sentencing Appellant. Hence, we find no abuse of
discretion that would entitle Appellant to sentencing relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/3/2016
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