Com. v. Dalton, R. ( 2023 )

J-S45032-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAHMAD DALTON-MILES :
:
Appellant : No. 1832 EDA 2021
Appeal from the Judgment of Sentence Entered August 10, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at CP-51-CR-0006115-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAHMAD DALTON-MILES :
:
Appellant : No. 1833 EDA 2021
Appeal from the Judgment of Sentence Entered August 10, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at MC-51-CR-0023477-2020
BEFORE: OLSON, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 16, 2023
In these consolidated appeals, Rahmad Dalton-Miles (Appellant),
appeals from the judgments of sentence imposed after he entered an open
guilty plea to one count of theft by unlawful taking,1 and firearms not to be
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1 18 Pa.C.S.A. § 3921(a).
J-S45032-22
carried without a license (following revocation of his probation in the firearms
case).2 We affirm.
The trial court summarized the case history as follows:
On November 16, 2016, [], Appellant] entered into an open
guilty plea before [the trial c]ourt to one count of firearms not to
be carried without a license [(Firearms Case).] … On March 30,
2017, [the trial c]ourt sentenced Appellant to [7] years of
probation.
[O]n November 26, 2020, [Thanksgiving Day], while on [the
trial c]ourt’s probation, Appellant drove a white Chevrolet up to
the complainant, who was walking with her grandson on the 2500
block of Frankford Avenue in Philadelphia. Appellant jumped out
of his vehicle, grabbed the complainant’s purse, and took off
[(Robbery Case)]. [The Robbery Case is not at issue on appeal.]
The complainant was able to record the temporary tags on
[Appellant’s] vehicle. [O]n December 5, 2020, also while on [the
trial c]ourt’s probation, Appellant committed another crime
[(Theft Case)]. In this instance, the complainant, who had just
exited a Target store with her grandchildren, was unloading her
shopping cart into her car when Appellant walked up and took her
purse from the cart. Appellant then got into a white Chevrolet
and fled the scene. As a result of these incidents, Appellant was
arrested and charged with robbery and related offenses [Robbery
Case] and theft by unlawful taking and related offenses [Theft
Case].
On August [1]0, 2021, Appellant entered into a negotiated
plea before [the trial court in the Robbery Case] to robbery and
access device fraud, and was sentenced to [3 - 6] months of
confinement followed by [2] years of probation for each charge.
On the same day, he entered into an open guilty plea before [the
trial court in the Theft Case]. [The trial c]ourt sentenced Appellant
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2 Appellant has complied with the dictates of Commonwealth v. Walker,
185 A.3d 969, 971 (Pa. 2018) (holding “where a single order resolves issues
arising on more than one docket, separate notices of appeal must be filed for
each case.”). This Court consolidated the appeals sua sponte. Order,
10/14/21.
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to [2½ - 5] years of confinement for theft by unlawful taking. As
a result of these pleas, [the trial c]ourt found Appellant to be in
direct violation of its probation [in the Firearms Case]. [The trial
c]ourt revoked probation and imposed a violation sentence of [3½
- 7] years of confinement, to run consecutive to the sentence on
[the Theft Case]. Appellant subsequently filed a Motion for
Reconsideration of Sentence. At a hearing on August 31, 2021,
[the trial c]ourt denied Appellant’s motion. Appellant filed a timely
Notice of Appeal to the Superior Court of Pennsylvania on
September 8, 2021. On September 30, 2021, [the trial c]ourt
issued an order pursuant to Pa.R.A.P. 1925(b) requiring
[Appellant] to file a Concise Statement of Matters Complained of
on Appeal within 21 days. [Appellant] filed a Concise Statement
on October 20, 2021.
Trial Court Opinion, 11/9/21 at 1-2 (footnote in omitted).
Appellant presents one issue for review:
Did not the [trial] court abuse its discretion and violate the
Sentencing Code by sentencing [A]ppellant to a manifestly
excessive sentence of [2½ - 5] years of incarceration … on [the
Theft Case], and the sentence of [3½ - 7] years of incarceration
… [in the Firearms Case,] to be served [consecutively], for a total
aggregate sentence of … [6 – 12 years], where this sentence far
surpassed what was required to protect the public and account
[sic] [A]ppellant’s demonstration of remorse, the nonviolent
nature of his offenses, his rehabilitative needs, mitigating
circumstances, and the sentencing guidelines?
Appellant’s Brief at 4.
Appellant challenges the discretionary aspects of his sentence. There is
no absolute right to challenge the discretionary aspects of a sentence on
appeal. See Commonwealth v. Hill, 66 A.3d 359, 363 (Pa. Super. 2013).
To reach the merits of Appellant’s issue, we must determine:
(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
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the concise statement raises a substantial question that the
sentence is appropriate under the sentencing code.
Commonwealth v. Edwards, 71 A.3d 323, 329–30 (Pa. Super. 2013)
(citation omitted).
Appellant has preserved his issues in a post-sentence motion, filed a
timely appeal, and included a Rule 2119(f) statement in his brief. See
Appellant’s Brief at 12-16. Accordingly, we determine whether Appellant has
raised a substantial question as to each sentence, and if so, whether the trial
court abused its sentencing discretion. See Edwards, 71 A.3d at 330.
1. Theft Case
Appellant contends the trial court imposed an “excessive statutory
maximum sentence … despite Appellant’s expression of remorse, and other
mitigating factors presented at sentencing.”3 Appellant’s Brief at 13-14. This
claim raises a substantial question.4 Commonwealth v. Summers, 245 A.3d
686, 692 (Pa. Super. 2021), appeal denied, 276 A.3d 700 (Pa. 2022).
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3 Appellant also claims the trial court erred by not submitting “a written
statement to the [sentencing] commission[.]” Appellant’s Brief at 15. It is
well-settled that a trial court “can meet the requirement of a contemporaneous
written statement by placing its reasons for departure on the record during
sentencing.” Commonwealth v. Feucht, 955 A.2d 377, 383 (Pa. Super.
2008). As the trial court placed its reasons on the record, this claim lacks
merit. See N.T., 8/10/21, at 28-31.
4 Appellant also challenges as excessive the imposition of consecutive
sentences. Appellant’s Brief at 19-22. However, “the imposition of
consecutive rather than concurrent sentences lies within the sound discretion
of the sentencing court, and a challenge to the imposition of consecutive
(Footnote Continued Next Page)
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We recognize:
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. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014) (citation
omitted).
With respect to a sentence outside of the recommended guidelines:
When evaluating a challenge to the discretionary
aspects of sentence ... it is important to remember
that the sentencing guidelines are advisory in
nature. If the sentencing court deems it
appropriate to sentence outside of the
guidelines, it may do so as long as it offers
reasons for this determination. [O]ur Supreme
Court has indicated that if the sentencing court
proffers reasons indicating that its decision to
depart from the guidelines is not unreasonable,
we must affirm a sentence that falls outside those
guidelines.
A sentencing court, therefore, in carrying out its duty to impose
an individualized sentence, may depart from the guidelines when
it properly identifies a particular factual basis and specific reasons
which compelled [it] to deviate from the guideline range.
Commonwealth v. Shull, 148 A.3d 820, 836 (Pa. Super. 2016) (citations
omitted, some emphasis in original, some emphasis added).
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sentences simply does not raise a substantial question.” Commonwealth v.
Lloyd, 878 A.2d 867, 873 (Pa. Super. 2005) (citations omitted).
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Here, the trial court did not have the benefit of a pre-sentence
investigation report (PSI) at sentencing. The trial court began to schedule
sentencing for another date based on the preparation of a PSI, but Appellant’s
counsel indicated otherwise. See N.T., 8/10/21, at 6-7. (“THE COURT: We’ll
get a date and order a [PSI] and mental health report. [DEFENSE COUNSEL]:
Judge, it’s a negotiated guilty plea.”). The trial court thus proceeded to
sentence Appellant, stating:
Well, I have considered the sentencing guidelines. I have
considered the arguments of counsel. I have taken into
consideration the fact that [Appellant] entered into a guilty plea.
I have taken into consideration the statement of the victim
who came here today. I understand that the other victim who
was robbed in a parking lot with her grandchildren could not be
here today.
I have taken into consideration [] the lapse of time between
the time I put [Appellant] on probation and the time these crimes
were committed.
I am sentencing him for the protection of the public because
two victims who [sic] have been robbed. The public must be
protected.
I have taken into consideration that the one woman who is
not here is a senior citizen. I consider a senior citizen anyone who
is 60 years and older. She could not come here today. She was
a senior citizen and she had her grandchildren. So I must take
into consideration she is a senior citizen.
N.T., 8/10/21, at 28-29 (some paragraphs altered).
The trial court further explained:
Appellant’s prior record score is one. The OGS [offense gravity
score] is three. As such, the Guidelines call for a sentence of
restorative sanctions to six months of incarceration, plus or minus
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three months for aggravating or mitigating factors. [204 PA ADC
§ 303.16(a).] [The trial c]ourt took the Guidelines into account,
and decided to deviate from them based on the serious nature of
the offense, the pattern of criminal conduct engaged in by
Appellant, and the fact that Appellant was on [] probation for a
firearms offense at the time he committed the [Theft] offense. In
making this decision, [the trial c]ourt properly considered all
relevant mitigating and aggravating factors. [It] considered the
testimony from Appellant’s family, as well as his own statements
at the time of sentencing. [The c]ourt also took into consideration
that Appellant has a history of substance abuse, and was, like
many, under particular strain in late 2020. However, [the c]ourt
was particularly troubled by the fact that, as noted by the
Commonwealth, Appellant appeared to be targeting older women
accompanied by younger children for his crimes. This offense was
Appellant’s second in an eight day period. In both cases the
victims were grandmothers accompanied by their grandchildren.
[The c]ourt cannot abide by the deliberate targeting of vulnerable
members of society. Moreover, Appellant committed his crimes
during the holiday season, when they were likely to put extreme
financial stress on his victims. [The c]ourt also took into
consideration that the victim in this case, although unable to come
to court, indicated that she was traumatized by the event. … More
than adequate testimony was given by Appellant, his family, and
trial counsel with respect to Appellant’s background.
Trial Court Opinion, 11/9/21, at 4.
The record shows the trial court considered mitigating factors; the court
heard defense counsel’s argument, testimony from Appellant’s mother and
girlfriend, and Appellant’s allocution. See N.T., 8/10/21, at 17-26. The court
further acknowledged Appellant’s drug addiction, his prior record score, and
the years that passed between Appellant’s 2017 probation sentence and his
crimes committed in 2020. Id. at 7, 29.
Upon review, we conclude the trial court did not abuse its discretion in
sentencing Appellant to the statutory maximum of 2½ to 5 years of
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confinement. The trial court stated on the record its concern for public safety,
emphasizing its concern for particularly vulnerable victims, i.e., the elderly,
given that Appellant had targeted grandmothers shopping with their
grandchildren. See Shull, 148 A.3d at 836 (in duty to impose individualized
sentence, court may depart from guidelines if it “identifies a particular factual
basis and specific reasons which compelled [it] to deviate from the
guideline[s].”). As the trial court identified particular facts and specific
reasons Appellant’s aggravated-range sentence, his issue does not merit
relief. See Commonwealth v. Walls, 926 A.2d 957, 966-68 (Pa. 2007) (no
abuse of discretion where individualized sentence was reasonable).
2. The Firearms Case
Appellant argues the trial court erred in sentencing him in the
aggravated range to the statutory maximum of 3½ to 7 years of confinement
in the Firearms Case, “based only on the fact that [A]ppellant was convicted
of another crime.” Appellant’s Brief at 24. A claim that the imposition of the
statutory maximum was disproportionate and manifestly excessive following
revocation of probation raises a substantial question. Commonwealth v.
Sierra, 752 A.2d 910, 913 (Pa. Super. 2000).
In reviewing a sentence imposed after the violation of probation,
a trial court has broad discretion in sentencing a defendant, and
concomitantly, the appellate courts utilize a deferential standard
of appellate review in determining whether the trial court abused
its discretion in fashioning an appropriate sentence. The reason
for this broad discretion and deferential standard of appellate
review is that the sentencing court is in the best position to
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measure various factors and determine the proper penalty for a
particular offense based upon an evaluation of the individual
circumstances before it. Simply stated, the sentencing court
sentences flesh-and-blood defendants and the nuances of
sentencing decisions are difficult to gauge from the cold transcript
used upon appellate review. Moreover, the sentencing court
enjoys an institutional advantage to appellate review, bringing to
its decisions an expertise, experience, and judgment that should
not be lightly disturbed.
***
Upon revoking probation, “the sentencing alternatives available to
the court shall be the same as were available at the time of initial
sentencing, due consideration being given to the time spent
serving the order of probation.” 42 Pa.C.S. § 9771(b). Thus,
upon revoking probation, the trial court is limited only by the
maximum sentence that it could have imposed originally at the
time of the probationary sentence, although once probation has
been revoked, the court shall not impose a sentence of total
confinement unless it finds that:
(1) the defendant has been convicted of another
crime; or
(2) the conduct of the defendant indicates that it is
likely that he will commit another crime if he is not
imprisoned; or
(3) such a sentence is essential to vindicate the
authority of the court.
42 Pa.C.S.A. § 9771(c).
***
[A] trial court does not necessarily abuse its discretion in imposing
a seemingly harsher post-revocation sentence where the
defendant received a lenient sentence and then failed to adhere
to the conditions imposed on him. In point of fact, where the
revocation sentence was adequately considered and sufficiently
explained on the record by the revocation judge, in light of the
judge’s experience with the defendant and awareness of the
circumstances of the probation violation, under the appropriate
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deferential standard of review, the sentence, if within the
statutory bounds, is peculiarly within the judge’s discretion.
Commonwealth v. Pasture, 107 A.3d 21, 27–29 (Pa. 2014) (citations
omitted).
Here, Appellant pled guilty to committing crimes and thus violating his
probation. He was also in technical violation because he failed 21 drug tests.
N.T., 8/10/21, at 9-10. The trial court explained:
Appellant satisfied all three of the conditions of § 9771(c). He was
convicted of multiple new crimes. More importantly, his conduct
indicates that it is extremely likely that he will commit another
crime if not imprisoned. Appellant committed two similar crimes
within an eight[-]day period. A sentence of total confinement is
also necessary to vindicate the [trial c]ourt’s authority. Appellant
chose to commit multiple new crimes while on [the trial court’s]
probation for a firearms offense. It is clear from his conduct that
he does not appreciate the seriousness of his original offense or
respect the terms of his probation or the authority of [the trial
c]ourt. Based on the specific nature of Appellant’s conduct, [the
trial c]ourt determine[d] a significant sentence was necessary. …
[B]oth of Appellant’s victims were grandmothers accompanied by
their grandchildren. It is clear from this that Appellant was
targeting older women with young children. He committed these
crimes in broad daylight and in busy areas. He went so far as to
pull his car over to rob one of the victims. That victim gave a
lengthy impact statement at the time of sentencing, detailing how
Appellant’s actions have changed her life. She was terrified for
months after the robbery that Appellant would return, and that he
might steal her car. She testified that she is still afraid when
walking her dog around her neighborhood. She was unable to
prepare a first Thanksgiving meal for her grandson, or to go
Christmas shopping. When Appellant stole her car keys, he also
stole her specially made urn keychain, which contained some of
her mother’s ashes. This is, of course, irreplaceable. Due to the
impact to his victims, his disregard for the terms of his probation,
and the fact that he engaged in a pattern of criminal conduct in
which he targeted vulnerable members of the population, [the trial
c]ourt determined that a lengthy state sentence was necessary
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for public safety as well as for any possible rehabilitation of
Appellant.
Trial Court Opinion, 11/9/21, at 6 (emphasis in original).
We have reviewed the record and discern no abuse of discretion.
Pasture, supra at 29. Appellant’s issue challenging the discretionary aspects
of his sentence in the Firearms Case does not merit relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/16/2023
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