Com. v. Landi, A. ( 2017 )

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NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ANTHONY CHARLES LANDI, No. 1004 MDA 2016
Appellant
Appeal from the Judgment of Sentence, March 30, 2016,
in the Court of Common Pleas of Lancaster County
Criminal Division at Nos. CP- 36 -CR- 0003211 -2011,
CP- 36 -CR- 0003214 -2011, CP- 36 -CR- 0003222 -2011,
CP- 36 -CR- 0005874 -2011
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 17, 2017
Anthony Charles Landi appeals from the judgment of sentence of
March 30, 2016, following his conviction of six counts of robbery and other
offenses. We affirm.
The trial court has aptly summarized the procedural history of this
case as follows:
On January 29, 2013, [appellant] entered an
open guilty plea to one count of robbery[Footnote 1]
and one count of theft by unlawful taking[Footnote
2] on docket number 3211 -2011; four counts of
robbery and four counts of theft by unlawful taking
on docket number 3214 -2011, one count of robbery
and one count of theft by unlawful taking on docket
number 3222 -2011 and one count each of
possession of drug paraphernalia,[Footnote 3]
* Former Justice specially assigned to the Superior Court.
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unauthorized use of a motor vehicle,[Footnote 4]
false reports to law enforcement,[Footnote 5] driving
under suspension,[Footnote 6] turning
movements[Footnote 7] and failing to use a safety
belt.[Footnote 8]
[Footnote 1] 18 Pa[.]C.S. § 3701(a)(1)(ii).
[Footnote 2] 18 Pa.C.S. § 3921(a).
[Footnote 3] 35 P.S. § 780-113(a)(32).
[Footnote 4] 18 Pa.C.S. § 3928(a).
[Footnote 5] 18 Pa.C.S. § 4906(a).
[Footnote 6] 75 Pa.C.S. § 1543(a).
[Footnote 7] 75 Pa.C.S. § 3334(a).
[Footnote 8] 75 Pa.C.S. § 4581(a)(2).
On March 22,2013, after a presentence
investigation, [appellant] was sentenced to an
aggregate term of 15 to 30 years['] incarceration to
be followed by five years['] consecutive probation.
The sentences on the four robbery counts of docket
number 3214 -2011 were concurrent with each other
while the sentences on the other two robbery counts
were consecutive. Pursuant to section 9712,
42 Pa.C.S. § 9712, the mandatory minimum
sentence of five years['] incarceration was imposed
for the robbery offenses committed with a firearm.
[Appellant] filed a motion to reconsider
sentence which was denied on April 18, 2013.
[Appellant] did not file a direct appeal to the
Superior Court.
[Appellant] subsequently filed a timely petition
for post[ -]conviction collateral relief, and a hearing
was held on May 30, 2014. On December 4, 2014,
the Court entered an order reinstating [appellant]'s
appeal rights and allowing him 30 days to file an
appeal to the Superior Court.
After the imposition of [appellant]'s sentence,
the United States Supreme Court issued its decision
in Alleyne v. United States, U.S. , 133
S. Ct. 2151 (2013). Based upon Alleyne, section
9712 was held to be unconstitutional.
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Commonwealth v. Valentine, 101 A.3d 801
(Pa.Super. 2014), appeal denied, 124 A.3d 309
(Pa. 2015); Commonwealth v. Hopkins, 117 A.3d
247 (Pa. 2015). As result, on December 18, 2015,
a
the Superior Court vacated [appellant]'s sentence
and remanded the matter for sentencing.
[Commonwealth v. Landi, 30 MDA 2015
(Pa.Super. filed December 18, 2015) (unpublished
memorandum).]
On March 30, 2016, [appellant] appeared
before the Court for resentencing. On each count of
robbery on docket numbers 3211 -2011 and 3214-
2011, [appellant] was sentenced to four and one -half
to ten years['] incarceration. On docket number
3222 -2011, [appellant] was sentenced to four to ten
years for the robbery offense. These sentences were
imposed consecutively. On docket number 5874-
2011, [appellant] was placed on probation for
five years consecutive to the other docket numbers
resulting in an aggregate sentence of 13 to
30 years['] incarceration followed by five years[']
probation.
[Appellant]'s post[ -]sentence motion was
denied on May 12, 2016. On June 9, 2016,
[appellant], acting pro se, filed a notice of appeal.
Following a Grazier[Footnote 9] hearing, counsel
was appointed and a statement of errors complained
of on appeal[1] was filed [on] July 12, 2016.
[Footnote 9] Commonwealth v. Grazier,
552 Pa. 9, 713 A.2d 81 (1998).
Trial court opinion, 9/13/16 at 1 -3.
Appellant has raised the following issue for this court's review,
challenging the discretionary aspects of his sentence: "Whether the lower
court's aggregate sentence of 13 to 30 years['] incarceration was unduly
i Pa.R.A.P. 1925(b).
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harsh and a manifest abuse of discretion when the criminal acts of
[appellant] were fueled by his drug addiction and occurred within a three
week time period ?" (Appellant's brief at 8 (capitalization deleted).)
Initially, we must address a jurisdictional issue. Appellant was
sentenced on March 30, 2016, and filed a timely post- sentence motion to
modify his sentence on April 11, 2016,2 which was denied by order dated
May 12, 2016, and entered May 13, 2016. Appellant, who is incarcerated,
filed a pro se notice of appeal dated June 9, 2016, with proof of service that
the notice was mailed to the trial court on that date. (Docket #3.)
However, the notice of appeal was time -stamped as having been received in
the trial court on June 15, 2016, two days beyond the 30 -day appeal
period.3 As such, the notice of appeal was facially untimely.
Nonetheless, appellant is incarcerated. See Commonwealth v.
Jones, 700 A.2d 423, 426 (Pa. 1997) (an appeal by a pro se prisoner is
2 The actual 10th day following sentencing was Saturday, April 9, 2016.
Therefore, appellant's post- sentence motion filed Monday, April 11, 2016,
was timely. 1 Pa.C.S.A. § 1908 (excluding weekends and holidays from the
computation of time when the last day of the time period falls on a weekend
or holiday); Pa.R.Crim.P. 720(A)(1) (a written post- sentence motion shall be
filed no later than 10 days after imposition of sentence).
3 See Pa.R.Crim.P. 720(A)(2)(a) (If the defendant files a timely
post- sentence motion, the notice of appeal shall be filed within 30 days of
the entry of the order deciding the motion); Pa.R.A.P. 903(a) (notice of
appeal shall be filed within 30 days after the entry of the order from which
the appeal is taken). The actual 30th day following denial of appellant's
post- sentence motion, June 12, 2016, fell on a Sunday. Therefore,
appellant's notice of appeal was required to be filed on or before Monday,
June 13, 2016. 1 Pa.C.S.A. § 1908.
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deemed filed on the date the prisoner deposits the appeal with prison
authorities and /or places it in the prison mailbox). Although appellant did
not provide evidence of an earlier mailing date such as a prisoner cash slip,
one can assume from the date on the notice of appeal and its proof of
service that he placed the notice of appeal in the hands of prison officials by
the 30th day, June 13, 2016. See Pa.R.A.P. 121(a) ( "A pro se filing
submitted by a prisoner incarcerated in a correctional facility is deemed filed
as of the date it is delivered to the prison authorities for purposes of mailing
or placed in the institutional mailbox, as evidenced by a properly executed
prisoner cash slip or other reasonably verifiable evidence of the date that the
prisoner deposited the pro se filing with the prison authorities. ");
Commonwealth v. Patterson, 931 A.2d 710, 714 (Pa.Super. 2007)
(noting that even without a postmark definitively noting the date of mailing,
quashal may be avoided where the date of receipt indicates that appellant
likely placed the notice of appeal in the hands of prison officials before the
expiration of 30 days). In light of the above, this court has jurisdiction over
the instant appeal.
Appellant argues that his sentence of 13 to 30 years' incarceration was
manifestly unreasonable and unduly harsh where the trial court focused
solely on the serious nature of the offenses and effectively ignored
mitigating evidence. Appellant alleges that the trial court failed to consider
his individual circumstances including his drug addiction and the fact that all
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six robberies occurred over a three -week time period. (Appellant's brief at
18.) According to appellant, the robberies were the result of his heroin
addiction. Appellant argues that since his incarceration, he has obtained his
GED, completed victim awareness education, and has maintained an
exemplary conduct record. Appellant also argues that by pleading guilty, he
spared the victims the additional trauma of having to testify in court. (Id. at
18.) Appellant admitted his criminal activity and expressed remorse for his
actions. (Id.) Appellant also points to support from his family, including
letters submitted on his behalf at sentencing. (Id.) The sentencing
guidelines provided a standard range of 39 to 51 months for each count of
robbery, plus or minus 12 months in the aggravated /mitigated range.
(Notes of testimony, 3/30/16 at 3.) Therefore, five of appellant's
six sentences for robbery fell within the aggravated range of the guidelines.
As Appellant raises a challenge to the discretionary
aspects of his sentence, we note the applicable
standard of review is as follows.
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.
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When imposing sentence, a court is
required to consider the particular
circumstances of the offense and the
character of the defendant. In
considering these factors, the court
should refer to the defendant's prior
criminal record, age, personal
characteristics and potential for
rehabilitation.
Commonwealth v. McLaine, A.3d , 2016 WL 6576846 at *4
(Pa.Super. 2016), quoting Commonwealth v. Antidormi, 84 A.3d 736,
760 -761 ( Pa.Super. 2014) (internal citations and quotation marks omitted).
An appellant is not entitled to the review of
challenges to the discretionary aspects of a sentence
as of right. Rather, an appellant challenging the
discretionary aspects of his sentence must invoke
this Court's jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering
the following four factors:
(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.A. § 9781(b).
Id., quoting Commonwealth v. Samuel, 102 A.3d 1001, 1006 -1007
(Pa.Super. 2014) (some citations omitted).
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The record reflects that appellant timely filed a notice of appeal and
that he preserved this issue by including it in his post- sentence motion for
modification of sentence. Appellant has also included in his brief a
statement pursuant to Rule 2119(f). We now consider whether appellant
has presented a "substantial question" for our review.
This Court may reach the merits of an appeal
challenging the discretionary aspects of a sentence
only if it appears that a substantial question exists as
to whether the sentence imposed is not appropriate
under the Sentencing Code. "A substantial question
will be found where the defendant advances a
colorable argument that the sentence imposed is
either inconsistent with a specific provision of the
code or is contrary to the fundamental norms which
underlie the sentencing process. A claim that the
sentencing court imposed an unreasonable sentence
by sentencing outside the guideline ranges presents
a 'substantial question' for our review."
Commonwealth v. Griffin, 804 A.2d 1, 7 (Pa.Super. 2002), appeal
denied, 868 A.2d 1198 (Pa. 2005), cert. denied, 545 U.S. 1148 (2005),
quoting Commonwealth v. Eby, 784 A.2d 204, 206 (Pa.Super. 2001). See
also Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa.Super. 2004)
(a claim that the court abused its discretion by sentencing outside the
guidelines presents a substantial question that the sentence is not
appropriate under the Sentencing Code), citing 42 Pa.C.S.A. § 9781(c)(3).
The standard of review in sentencing matters is well
settled: imposition of sentence is vested in the
discretion of the sentencing court and will not be
disturbed by an appellate court absent a manifest
abuse of discretion. Commonwealth v. Smith, 543
Pa. 566, 570 -71, 673 A.2d 893, 895 (1996). An
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abuse of discretion is more than just an error in
judgment and, on appeal, the trial court will not be
found to 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. Smith at 571, 673 A.2d at 895. An
appellate court shall vacate a sentence and remand
if the sentence is outside the guidelines and is
"unreasonable." Id. (quoting 42 Pa.C.S.
§ 9781(c)(3)). If the sentence is "not
unreasonable," the appellate court must affirm. Id.
Griffin, 804 A.2d at 7.
When the sentencing court imposes a sentence
outside the guidelines, it must provide a
contemporaneous written statement of the reason or
reasons for the deviation from the guidelines. Eby,
784 A.2d at 206. The Sentencing Code requires a
trial judge who intends to sentence outside the
guidelines to demonstrate, on the record, his
awareness of the guideline ranges. Id. Having done
so, the sentencing court may, in an appropriate case,
deviate from the guidelines by fashioning a sentence
which takes into account the protection of the public,
the rehabilitative needs of the defendant, and the
gravity of the particular offense as it relates to the
impact on the life of the victim and the community.
Id. at 207. In doing so, the sentencing judge must
state of record the factual basis and specific reasons
which compelled him or her to deviate from the
guideline ranges. Id. at 206. When evaluating a
claim of this type, it is necessary to remember that
the sentencing guidelines are advisory only. Id.
Griffin, 804 A.2d at 7 -8.
Here, the trial court was well aware of appellant's mitigating evidence,
including his lengthy history of drug use, his employment history, and his
family support. (Notes of testimony, 3/30/16 at 6.) Defense counsel argued
that appellant has been a model prisoner during the four years he has been
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incarcerated. (Id.) The trial court was also in possession of a pre- sentence
investigation report. (Id. at 5.) "Where the sentencing judge had the
benefit of a pre- sentence report, it will be presumed that he was aware of
relevant information regarding appellant's character and weighed those
considerations along with the mitigating statutory factors."
Commonwealth v. Fullin, 892 A.2d 843, 849 -850 (Pa.Super. 2006),
quoting Commonwealth v. L.N., 787 A.2d 1064 (Pa.Super. 2001).
Appellant exercised his right of allocution and apologized for his
criminal conduct. (Notes of testimony, 3/30/16 at 8.) The trial court
acknowledged certain mitigating factors weighing in appellant's favor but
ultimately concluded that the serious nature of the offenses, including the
fact that most of the establishments appellant robbed at gunpoint were
frequented by young people, warranted a more severe sentence:
. . other words, these are places, particularly
. in
these GameStop facilities, and Play N Trade, which,
like I said, is the same basic operation, and the
Turkey Hill Market, which are locations frequented by
younger people. A lot of them involved in these
video games are young men who are not particularly
known to use excellent judgement and you going in
there with this weapon presented a grave risk of
danger of death or serious injury, not only to the
clerks, but, also, to any customer in the store who
decided that now is his time to step up and do
something, thereby, provoking further violence. I
have also considered, simply, the number of these
offenses. This was not a once stop and done, you
have had six of these violent offenses. I have
considered your rehabilitative needs, particularly the
fact at the time you were using heroin.
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Id. at 13-14.
Particularly, the idea that, well, heroin made
me do it and what's the problem? None of these
people were actually hurt. Unfortunately it was not
for lack of effort on your part that no one was hurt.
When you go into these types of establishments with
this type of weapon, I believe it was a bb gun, or
something, it looks just like a real gun. No police
officer walking by is going to sit there and say: Well,
there is somebody holding up a GameStop with a
gun. I think I'll take the chance that that's a bb gun
and it is not loaded, rather than the fact that it is a
[G]lock nine and it is loaded. That's what provokes
serious danger of death or bodily injury to
everybody. You just can't do this sort of thing.
Id. at 15.
I understand you're going through this course
at the a [sic] State correctional institution, I forget
what they call it, victim empathy or victim impact or
whatever it is. And that is certainly commendable,
but, the difficulty is, essentially, what your attorney
seems to be seeking on your behalf is a volume
discount. If you go out and commit six armed
robberies, that's no worse than if you went out and
committed one. That's what running all these
sentences in a concurrent manner would mean and I
think that is completely inappropriate. As I have told
other people, I would not wish drug addiction on my
worst enemy, but that's not an excuse for
endangering members of the community in this type
of spree. If you have had a substance abuse
problem since you were ten years old, you have had
a significant period of time in which to address that
problem. You were in the White Deer Run Program
and in the Gatehouse Program. These offenses were
committed after you got out of those two programs.
So it is not that you weren't given, or were denied an
opportunity to have treatment for your addiction. It
simply didn't take or you simply did not commit to
the treatment. The situation you find yourself in you
brought on yourself. And I consider, as an
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aggravating factor, the number of offenses that you
have committed.
Id. at 16 -17.
The trial court placed sufficient reasons on the record justifying an
aggravated range sentence on five of the six robbery charges. We also note
that the trial court could have run all six counts consecutively, resulting in a
much longer sentence. See Commonwealth v. Hoag, 665 A.2d 1212,
1214 (Pa.Super. 1995) (a challenge to the court's imposing consecutive
rather than concurrent sentences does not present a substantial question
regarding the discretionary aspects of sentence and an appellant is not
entitled to a "volume discount" for his crimes by having his sentences run
concurrently (citation omitted)). It cannot be said that appellant's
aggregate sentence of 13 to 30 years' incarceration was unreasonable under
the circumstances. Appellant's discretionary aspects of sentencing claim
fails.
Judgment of sentence affirmed.
Judgment Entered.
/
Joseph D. Seletyn,
Prothonotary
Date: 1/17/2017
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