Com. v. Little, J. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellant
v.
JONATHAN B. LITTLE
Appellee No. 3147 EDA 2015
Appeal from the Judgment of Sentence September 18, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001811-2015
BEFORE: SHOGAN, J., MOULTON, J., and FITZGERALD, J.*
MEMORANDUM BY MOULTON, J.: FILED MARCH 28, 2017
The Commonwealth of Pennsylvania appeals from the September 18,
2015 judgment of sentence imposed by the Philadelphia County Court of
Common Pleas on Jonathan B. Little’s convictions. We affirm.
On June 9, 2015, Little entered an open guilty plea to two counts of
robbery and one count each of conspiracy, possession of a firearm with an
altered manufacturer’s number, and possession of a firearm by a minor.1
Little was 17 years old at the time of the offenses but was charged as an
adult. On August 11, 2015, the trial court sentenced Little to concurrent
terms of 5 to 10 years’ incarceration, followed by 3 years’ reporting
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 3701(a)(1)(ii), 903, 6110.2, and 6110.1, respectively.
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probation, on each of the robbery, conspiracy, and possession of a firearm
with an altered manufacturer’s number convictions. The court imposed no
further penalty on the remaining firearm conviction. Little filed a post-
sentence motion seeking reconsideration of his sentence. On August 20,
2015, the trial court vacated Little’s judgment of sentence and scheduled a
resentencing hearing for September 18, 2015.
At the resentencing hearing, the trial court heard argument from both
the Commonwealth and defense counsel as well as Little’s allocution
testimony. At the conclusion of the hearing, the trial court sentenced Little
to 2½ to 6 years’ incarceration followed by 2 years’ reporting probation. The
Commonwealth timely appealed.2
The Commonwealth raises the following issue: “Did the lower court
abuse its discretion in imposing unreasonably lenient departure sentences
for [Little’s] armed robbery of two victims, by focusing exclusively on the
rehabilitative needs of [Little] and relying on impermissible and irrelevant
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2
In his brief, Little contends that the Commonwealth waived its
sentencing challenge by failing to file a post-sentence motion. We disagree.
Pennsylvania Rule of Criminal Procedure 721(A)(2) provides that
“[s]entencing issues raised by the Commonwealth at the sentencing
proceeding shall be deemed preserved for appeal whether or not the
Commonwealth elects to file a motion to modify sentence on those issues.”
Here, the Commonwealth clearly stated its arguments against a more lenient
sentence at the resentencing hearing. See N.T., 9/18/15, at 7-10.
Therefore, we conclude that the Commonwealth properly preserved its
sentencing claim.
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factors, thereby disregarding its duty to protect the public?” Cmwlth.’s Br.
at 4.3
Before we may review the Commonwealth’s discretionary aspects of
sentencing claim, we must determine whether the claim raises a substantial
question for our review. A substantial question exists where the appellant
raises “a plausible argument that the sentence violates a provision of the
sentencing code or is contrary to the fundamental norms of the sentencing
process.” Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa.Super.
2013) (quoting Commonwealth v. Naranjo, 53 A.3d 66, 72 (Pa.Super.
2012)). Here, the Commonwealth asserts that the trial court imposed an
excessively lenient sentence, failing to consider the gravity of Little’s
offenses and the protection of the public. This Court has held that such a
claim presents a substantial question. See, e.g., Commonwealth v.
Wilson, 946 A.2d 767, 770 n.6 (Pa.Super. 2008), aff’d, 971 A.2d 1121 (Pa.
2009); Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.Super. 2001).
Therefore, we will review the Commonwealth’s sentencing claim.
The Commonwealth asserts that the trial court abused its discretion in
imposing a sentence far below the mitigated range of the Sentencing
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3
The Commonwealth’s brief contains a statement of reasons for
allowance of appeal as required by Pennsylvania Rule of Appellate Procedure
2119(f). See Cmwlth.’s Br. at 15-18.
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Guidelines without sufficient reasons.4 The Commonwealth claims that the
trial court erroneously focused on Little’s needs without considering the
gravity of the offenses and the protection of the public.
When reviewing a challenge to the trial court’s sentence, our 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. An 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.
Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa.Super. 2012) (quoting
Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa.Super. 2002)).
Moreover, “the sentence imposed should call for confinement that is
consistent with the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant.” 42 Pa.C.S. § 9721(b).
Although the trial court is required to consider the Sentencing
Guidelines when imposing a sentence, it has “discretion to sentence below
the mitigated range as long as it clearly explains its reasons for doing so.”
Commonwealth v. Hoch, 936 A.2d 515, 519 (Pa.Super. 2007). “If the
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4
Little’s prior record score was five, his offense gravity score was ten,
and the applicable Sentencing Guidelines range with a deadly weapon
enhancement was 78 to 90 months’ incarceration, plus or minus 12 months
in the aggravated and mitigated ranges. N.T., 8/11/15, at 4-5.
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sentence imposed is outside of the recommended guidelines, the trial court
must provide a contemporaneous written statement of the reason or reasons
for the deviation” or state on the record, in the defendant’s presence, its
reasons for the sentence. Commonwealth v. Childs, 664 A.2d 994, 996
(Pa.Super. 1995). If the trial court’s reasons show that it meaningfully
weighed the Sentencing Guidelines against the facts of the crime and the
defendant’s character, this Court should not disturb the sentence.
Commonwealth v. Anderson, 830 A.2d 1013, 1018-19 (Pa.Super. 2003).
After hearing argument from counsel and Little’s allocution testimony,
the trial court stated, “I was convinced . . . within a few days of the [initial]
sentencing when I couldn’t get it out of my mind that I had imposed too
severe . . . a sentence. And I’m going to put on the record why and why I’m
going to depart further from the guidelines.” N.T., 9/18/15, at 16. The trial
court then explained its reasons for imposing a more lenient sentence,
including Little’s age, his mental health issues, his need for treatment, and
his expression of remorse, which the court found credible. Id. at 17-19.
The trial court also recognized that although Little’s prior record score was
high for a juvenile, his prior crimes did not involve weapons or acts of
violence; they were drug possession offenses. Id. at 19-20. The trial court
found that Little did not present the same risk of harm to the community as
juvenile offenders with prior violent crimes or repeat adult drug offenders.
Id. at 20.
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In its Pennsylvania Rule of Appellate Procedure 1925(a) opinion, the
trial court further clarified its reasons for deviating from the Sentencing
Guidelines as follows:
Prior to re-imposing sentence, the court thoroughly
reviewed [Little’s] pre-sentence investigation. The court
considered all of the evidence and arguments presented at
both the guilty plea and sentencing hearings. The court
also considered [Little’s] allocution testimony. Finally, the
court considered the recommended guidelines sentence for
adult offenders. . . .
Clearly, the court’s sentence constituted a substantial
downward departure from the sentencing guidelines. The
reasons for the departure were stated in detail on the
record and demonstrated the court’s concern that the
sentence reflect the life and circumstances of the offender
as well as the nature of the offense.
First, [Little] accepted full responsibility for his actions
and clearly exhibited remorse, which the court found to be
genuine. Mr. Little stated that, even though the
complainant had previously stolen money from him, he
had come to understand that his actions were completely
inappropriate and dangerous. (N.T., 9/18/15, pp. 16-17).
Second, [Little] had a significant history of untreated
mental health issues which affected his ability to make
sound judgments. [Little’s] mental health issues had not
been adequately addressed during his juvenile placements
in part because [Little] was not ready to address them, but
also in part because his placements simply were not long
enough.
Finally, the court considered [Little’s] age and his
criminal history. [Little] was seventeen at the time of this
offense and, while chargeable as an adult, was still a
juvenile with all that entails in terms of ability to make
sound judgments. Indeed, the Commonwealth’s single-
minded reliance on the sentencing guidelines completely
ignores the fact that these guidelines were formulated for
adult offenders. Although juveniles may be charged and
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tried as adults in certain circumstances, the sentencing
court is entitled to consider the fact that they are not
adults, along with all other relevant circumstances. . . .
Furthermore, with regard to [Little’s] prior record there
was no evidence of prior violent conduct. There were no
weapons offenses. There were no assault cases. Although
[Little’s] prior record score was a five, this court did not
believe it appropriate to treat him the same as a juvenile
offender with a similar prior record score but a history of
violent crimes. [Little’s] prior record consisted of either
drug possession or possession with intent to deliver cases.
These are serious matters to be sure. But, in a juvenile
offender, it cannot reasonably be said that they
demonstrate the same conscious disregard of community
safety and well-being as is the case with a repeat adult
offender who has chosen drug dealing as his vocation.
(N.T., 9/18/15; pp. 15-21).
The court clearly stated the factors that it considered
when it re-sentenced [Little]. That sentence, while more
lenient [than] the one originally imposed, was fair and
reasonable.
Opinion, 2/26/16, at 6-7 (case citations omitted).
The record shows that the trial court carefully considered the facts and
circumstances of this case in crafting an individualized sentence. The trial
court also stated its reasons for the sentence on the record and explained
how it balanced Little’s age and rehabilitative needs against the gravity of
his offenses and the protection of the public. Under these circumstances, we
find no manifest abuse of discretion.5
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5
In its reply brief, the Commonwealth relies on Commonwealth v.
Shull, 148 A.3d 820 (Pa.Super. 2016), to support its claim that the trial
court abused its discretion in deviating downward from the Sentencing
Guidelines without sufficient reasons. Shull, however, is distinguishable. In
(Footnote Continued Next Page)
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/2017
_______________________
(Footnote Continued)
Shull, we held that the trial court’s desire that a juvenile defendant serve
his sentence in county jail, rather than state prison, was an impermissible
reason for a downward departure from the Guidelines, where the trial court
failed to consider the defendant’s rehabilitative needs, the severity of the
crime, and the safety of the public. Id. at 836-37. Specifically, “the [trial]
court engaged in no discussion as to why Shull’s particular circumstances
warranted a severe downward departure sentence.” Id. at 836. Unlike
Shull, the trial court in this case considered the pre-sentence report, the
nature of Little’s offenses, his rehabilitative needs, and the protection of the
public, and thoroughly explained its reasons for the downward-departure
sentence on the record and its Rule 1925(a) opinion.
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