Com. v. Morro, M. ( 2021 )

J-S35039-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARK LEONARD MORRO :
:
Appellant : No. 444 MDA 2021
Appeal from the Judgment of Sentence Entered February 24, 2021
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0005314-2018
BEFORE: OLSON, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: DECEMBER 10, 2021
Mark Leonard Morro (Morro) appeals the judgment of sentence entered
by the Court of Common Pleas of Dauphin County (trial court). In 2021, Morro
entered an open guilty plea as to one count of persons not to possess a firearm
(felony-one).1 The trial court sentenced him to a prison term of 9 to 20 years
as to that count. Although the trial court imposed a below-guidelines sentence
without providing any reasons for departure, Morro argues that his sentence
should be overturned on the ground that it is manifestly excessive. We affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 Morro also entered a guilty plea as to a summary traffic offense that is not
at issue in this appeal.
J-S35039-21
I.
In 2018, Morro was pulled over by police for riding his motorcycle over
the speed limit. During the stop, Morro initially misidentified himself before
admitting his identity and the fact that he was carrying a loaded pistol on his
person. Police discovered that Morro had been prohibited from carrying such
firearms due to prior convictions for violent crimes. Further, Morro was found
to be in possession of controlled substances and drug paraphernalia. It was
suspected that Morro was under the influence of drugs or alcohol at the time
of the stop.
Morro was charged with (1) possession of firearm prohibited, second-
degree felony; (2) carrying a firearm without a license; (3) manufacture,
delivery, or possession with intent to manufacture or deliver; (4) intentional
possession of a controlled substance by a person not registered; (5)
use/possession of drug paraphernalia; (6) DUI: controlled substance-
impaired ability, 1st offense; (7) false identification to law enforcement
officers; (8) driving while operating privilege suspended or revoked; and (9)
exceeding 55 mph speed limit by over 10 mph.
The case was pending for almost three years when on February 18,
2021, the Commonwealth moved to amend the charging document. A few
days later, Morro’s counsel petitioned to withdraw from the case. The trial
court granted the Commonwealth’s motion to amend the charges and
pursuant to this amendment, the first count (possession of firearm by
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prohibited person, second-degree) was increased to a felony of the first
degree (18 Pa.C.S. § 6105(a)(1)), and all other counts except for the
summary speeding offense were withdrawn.2 Counsel’s motion to withdraw
was denied.
On the eve of the scheduled jury trial, Morro informed the trial court
that he intended to enter a guilty plea on the two remaining counts. At the
plea and sentencing hearing held on February 24, 2021, Morro stated that he
understood that he would be entering a plea of guilty as to the weapon
possession count, graded as a first-degree felony, though he disagreed with
the reclassification. He ultimately entered a guilty plea on the record and
completed a written guilty plea colloquy form. See Plea and Sentencing
Transcript, 2/24/2021.
Morro was sentenced as outlined above. When imposing sentencing,
the trial court acknowledged that there were no aggravating circumstances.
See id. at p. 12. However, the trial court noted to Morro that he had “the
highest prior record score you could have,” id., and that the “fact situation is
not mitigated” so as to justify a downward departure sentence. Id. at p. 32.
Relatedly, the trial court discussed the extent of its discretion under the
applicable sentencing guidelines. The trial court explained that “the standard
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2 Defense counsel demanded that the summary offense remain so that it would
provide context in the record for Morro’s suppression motion, which is not at
issue in this appeal. See Motion Hearing Transcript, 2/23/2012, at pp. 7-8.
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[REVOC] range is . . . 10 to 20 [years].” Id. at p. 31. However, to avoid
having to give “a rational reason to deviate” from that standard range, the
trial court consulted the guidelines for “[RFEL] as opposed to [REVOC], and
looking at the flexibility that will be there.” Id. at p. 32.3 Morro then received
a prison term of 9 to 20 years on the weapon possession count, with no further
penalty as to the summary traffic offense. Taking in mind Morro’s past
struggles with substance abuse, the trial court emphasized that having a
sentence on only one count would make it easier for him to receive priority
for drug treatment programs during his incarceration.
On March 4, 2021, Morro filed a post-sentence motion raising two main
grounds. He asserted that the trial court abused its discretion by failing to
order a presentence investigation report or stating the reasons for dispensing
with a presentence investigation. He also contended that the trial court had
misapplied the sentencing guidelines, resulting in an excessive sentence under
the circumstances.
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3 “Repeat Violent Offender Category [REVOC]” is the Prior Record Score
category set forth at 204 Pa.Code §303.4(a)(1). “Repeat Felony 1 and Felony
2 Offender Category [RFEL]” is the Prior Record Score category set forth at
204 Pa.Code §303.4(a)(2). Of the two categories, REVOC carries the higher
offense gravity score, which is reflected by an elevated sentencing guidelines
range. Morro’s conviction for possession of a weapon by a person prohibited,
felony-one, has an offense gravity score of 10. In combination with that score,
Morro’s prior convictions were severe enough to qualify him for sentencing
under the REVOC guidelines, which recommended a range of 10 to 20 years.
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The trial court held a hearing on the post-sentence motion on March 26,
2021. Defense counsel argued that at sentencing, the trial court was
improperly “utilizing the RFEL guidelines.” Hearing Transcript, 3/26/2021, at
p. 4. The trial court disagreed with this characterization and stated that RFEL
was used only “as a fiction in order to adjust what would otherwise be for all
intents and purposes a mandatory 10 to 20” under the REVOC guidelines. Id.
Additionally, the trial court asked for a proffer as to what material information
a presentence report would have contained; when no such information was
proffered, the trial court explained that a presentence report was never
compiled because Morro’s plea came on the eve of his trial, after the case had
been pending for years, and a report had never been requested. Id. at pp.
6-10, 11-12. At the conclusion of the hearing, the trial court denied Morro’s
post-sentence motion.
Morro appealed, arguing that his sentence is excessive regardless of
whether the RFEL or REVOC was applicable. See Appellant’s Brief, at 18-22.
The trial court submitted a 1925(a) opinion, reasoning that Morro waived his
excessive sentencing claim because he did not object on that ground at
sentencing or in his post-sentence motion. Moreover, the trial court found
that no relief would be due even if Morro had successfully raised the present
appellate issues because they do not raise a substantial question. As to
whether the correct sentencing guidelines were applied, the trial court
explained that even if it erred, the error could not have caused Morro any
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prejudice because he ultimately received a more lenient sentence than he was
legally entitled to. See Trial Court Opinion, 5/24/2021, at 7-9.
II.
Sentencing is a matter vested within the discretion of the trial court.
See Commonwealth v. Antidormi, 84 A.3d 736,749 (Pa. Super. 2014). The
merits of a sentencing claim on appeal may only be considered if the trial court
abused its discretion and if the claim raises a substantial question. See id. at
759. A substantial question is raised when an appellant “advances a colorable
argument that the sentencing judge’s action were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing process.” Commonwealth
v. Moury, 992 A.2d 162, 171–72 (Pa. Super. 2010).
An appellant seeking to raise a substantial question must satisfy a four-
part test:
(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) (internal
citations omitted).
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825,
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828 (Pa. Super. 2007). A bare allegation that the sentencing court failed to
consider certain mitigating factors generally does not necessarily raise a
substantial question. Commonwealth v. McNabb, 819 A.2d 54, 57 (Pa.
Super. 2003). Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing hearing or in a motion
to modify the sentence imposed. See Evans, 901 A.2d at 533-34.
“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). “[T]he court
should refer to the defendant’s prior criminal record, his age, personal
characteristics and his potential for rehabilitation.” Id. Further, where a
sentence is within the standard range of the guidelines, it may only be vacated
if “the case involves circumstances where the application of the guidelines
would be clearly unreasonable.” 42 Pa.C.S. § 9781(c).
Here, Morro contends that the trial court imposed an excessive
sentence, failed to consider mitigating factors and applied the incorrect
statutory sentencing guidelines. He has filed a timely notice of appeal, and
his appellate brief includes a statement that conforms to Pa.R.A.P. 2119.
Moreover, Morro has adequately preserved a claim that the trial court
incorrectly applied the statutory guidelines ranges when imposing sentence,
and this issue presents a substantial question that may be considered on
appeal. See Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super.
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2015) (en banc) (“This Court has . . . held that an excessive sentence claim—
in conjunction with an assertion that the [trial] court failed to consider
mitigating factors—raises a substantial question.”).
Proceeding to the merits of Morro’s claims, we find that no relief is due.
The record shows that the trial court did, in fact, consider all required
mitigating factors when imposing the sentence, including “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 on the rehabilitative needs of the
defendant.” 42 Pa.C.S. § 9721(b). The trial court specifically emphasized
Morro’s admitted need for substance abuse treatment when determining the
length of incarceration, as well as Morro’s overall personal history and
perceived recalcitrance in his dealings with the court.
Although the trial court referred both to REVOC and RFEL when imposing
sentence, REVOC was the applicable prior record score category, and Morro
ultimately received a term that would have been under the REVOC guidelines
range.4 If we granted a resentencing as Morro requests, he would run the risk
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4 It is undisputed that Morro’s prior convictions qualified him for sentencing
under REVOC guidelines ranges. His current conviction for possession of a
firearm by a person not to possess, graded as a first-degree felony under 18
Pa.C.S. § 6105(a)(1), carried an offense gravity score of 10. See 204 Pa.Code
§ 303.15. Morro had a prior record score of 11 based on his previous felony
convictions. See id. at § 303.5. This criminal history qualified Morro for
sentencing under REVOC, and the guidelines range in that framework was 10
to 20 years; Morro’s sentence of 9 to 20 years fell below that range. See 42
Pa.C.S. § 9781(c).
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of having his minimum sentence increased from 9 years to 10 years because
the record contains no facts which would have justified a downward departure
sentence under REVOC. Moreover, the Commonwealth has not asked us to
correct the trial court’s improper downward departure, and the sentence was
not rendered illegal by that error such that we must remedy it sua sponte.5
See Commonwealth v. Krum, 533 A.2d 134, 134 (Pa. Super. 1987) (“If a
sentencing court considers improper factors in imposing sentence upon a
defendant, the court thereby abuses its discretion, but the sentence imposed
is not rendered illegal. Otherwise, every erroneous consideration by a
sentencing court will render the sentence illegal in a manner which cannot be
waived[.] This is not the law.”); see also Pa.R.Crim.P. 721 (setting forth
procedure for Commonwealth sentencing appeals and challenges to
sentence).
Accordingly, because Morro’s sentence was not manifestly excessive or
clearly unreasonable, it must be upheld.
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5 A first-degree felony is punishable by up to 20 years. See 18 Pa.C.S.
§ 1103(1). Morro’s sentence of 9 to 20 years was, therefore, legal, and this
Court has no authority to correct the trial court’s abuse of discretion in
misapplying the statutory sentencing guidelines. See generally
Commonwealth v. Randal, 837 A.2d 1211, 1214 (Pa. Super. 2003)
(explaining that a sentence is illegal and reviewable sua sponte if imposed by
the trial court without statutory authorization). An improper departure from
the statutory guidelines is an abuse of discretion that does not necessarily
render a sentence illegal. See e.g., Commonwealth v. Walls, 926 A.2d
957, 962 (Pa. 2007) (explaining that sentencing guidelines are one component
factored into trial court’s sentencing authority, which is reviewed under an
abuse of discretion standard); Krum, 533 A.2d at 134 (same).
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Judgment of sentence affirmed.
Judge Kunselman joins the memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/10/2021
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