Com. v. Clark, A. ( 2022 )

J-A06042-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTONIO STEVE CLARK :
:
Appellant : No. 971 WDA 2021
Appeal from the Judgment of Sentence Entered August 22, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0013622-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTONIO CLARK :
:
Appellant : No. 972 WDA 2021
Appeal from the Judgment of Sentence Entered August 22, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0001039-2016
BEFORE: MURRAY, J., SULLIVAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: JUNE 3, 2022
Appellant, Antonio Steve Clark, appeals from the judgments of sentence
imposed following his conviction of possession with intent to deliver a
controlled substance (“PWID”) and person not to possess a firearm. We
affirm.
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* Retired Senior Judge assigned to the Superior Court.
J-A06042-22
This appeal arises out of Appellant’s guilty plea to offenses at two trial
court dockets related to two separate incidents that occurred in 2015. At CP-
02-CR-0013622-2015, Appellant was charged with PWID, possession of a
controlled substance, criminal conspiracy, and criminal use of communication
facility.1 According to the factual predicate for the plea stipulated to during
Appellant’s plea colloquy, on January 8, 2015, Appellant sold an undercover
detective $250 worth of heroin in 200 individual bags during a controlled
purchase organized by a confidential informant in Wilkinsburg, Pennsylvania.
N.T., 5/21/18, at 19-20 (stipulating to facts set forth in the January 8, 2015
Affidavit of Probable Cause). Upon his arrest, marijuana, additional heroin,
the money used in the controlled purchase, and the cellular phone used to
facilitate the transaction were recovered from Appellant. Id.
At CP-02-CR-0001039-2016, Appellant was charged with person not to
possess a firearm and carrying a firearm without a license.2 According to the
stipulated factual predicate, police received a report on October 5, 2015 of a
man holding a large gun standing at the intersection of Frankstown and
Brushton Avenues in Pittsburgh. Id. (stipulating to facts set forth in the
October 5, 2015 Affidavit of Probable Cause). Police responded to the area
and discovered Appellant inside a convenience store at that intersection;
Appellant was wearing clothing matching the description in the report, and
____________________________________________
135 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(16), 18 Pa.C.S. § 903(a)(1),
and 18 Pa.C.S. § 7512(a), respectively.
2 18 Pa.C.S. § 6105(a)(1) and 18 Pa.C.S. § 6106(a)(1), respectively.
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officers observed a pistol sticking out of Appellant’s waistband. Id. Officers
determined that Appellant lacked a permit to carry and that he had a felony
robbery conviction prohibiting him from possessing a firearm within the
Commonwealth. Id.
On May 21, 2018, Appellant entered a general plea to all charges at both
dockets. Appellant’s sentencing was deferred to allow for the preparation of
a presentence investigative report (“PSI”).
At the August 22, 2018 sentencing hearing, Appellant called a
representative from Justice Related Services who advised the court that
Appellant would be eligible for outpatient mental health and drug and alcohol
treatment based upon his experiences with neighborhood violence and his
post-traumatic stress disorder (“PTSD”) diagnosis. N.T., 8/22/18, at 3-4.
Defense counsel acknowledged that the sentencing guidelines called for
Appellant to receive a long sentence, but he indicated that Appellant had taken
responsibility for his actions and completed several programs in jail while
awaiting sentencing. Id. at 4-7. Counsel requested that the trial court
sentence Appellant in the mitigated range and that the sentences be imposed
concurrently. Id. at 7. Appellant informed the trial court that he had matured
since the time of his offenses, he took responsibility for his actions, and he
hoped to enroll in a drug and alcohol program. Id. at 8-9. The
Commonwealth did not make a specific recommendation and instead referred
to the sentencing guidelines, highlighting Appellant’s high prior record of five
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based upon a 2009 robbery conviction and a 2012 conviction of carrying a
firearm without a license. Id. at 7-8.
After listening to the argument and testimony, the trial court indicated
its review of the PSI and reviewed the sentencing guidelines. Id. at 3-4, 9.
The court noted Appellant’s “disturbing” and “extensive” criminal record and
recognized the gravity of his current offenses, including the potential dangers
to users associated with the distribution of heroin. Id. at 9-11. However, the
court explained its practice of sentencing a defendant in the mitigated range
when they are “willing to step up and admit that they did something wrong.”
Id. at 11. The court further stated that it would not impose sentences
concurrently at the two dockets because “[o]n two separate dates, two
separate unrelated incidents, you committed two separate sets of crimes.”
Id.
At CP-02-CR-0013622-2015, the trial court imposed a sentence of 18 to
36 months’ imprisonment followed by 3 years’ probation on the PWID count,
with no further penalty on the remaining counts. Id. at 12. At CP-02-CR-
0001039-2016, Appellant received a sentence of 48 to 96 months’
imprisonment followed by 2 years’ probation on the person not to possess a
firearm count, with no further penalty on the other count. Id. at 11-12.
Appellant’s aggregate sentence was thus 5½ to 11 years’ imprisonment
followed by 5 years’ probation. As the trial court explained, both terms of
imprisonment were at the bottom of the mitigated range according to the
sentencing guidelines. Id. at 9, 11.
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Appellant filed a timely post-sentence motion, which the trial court
denied. Appellant thereafter filed an appeal. However, on October 28, 2019,
this Court quashed the appeal pursuant to Commonwealth v. Walker, 185
A.3d 969, 971 (Pa. 2018), overruled in part by Commonwealth v. Young,
265 A.3d 462 (Pa. 2021), because Appellant filed a single notice of appeal
from the judgments entered at the two trial court dockets. Appellant then
filed a timely pro se petition pursuant to the Post Conviction Relief Act
(“PCRA”)3 raising the issue of ineffectiveness of counsel on his direct appeal.
After PCRA counsel was appointed and an amended petition was filed, the
PCRA court entered an order granting the petition and reinstating Appellant’s
direct appeal rights. Appellant thereafter filed notices of appeal at both trial
court dockets.4
Appellant presents the following issue for our review:
Did the sentencing [c]ourt err or abuse its discretion when
imposing a manifestly excessive sentence of five and one-half
(5½) to eleven (11) years considering:
a. the substantial mitigating evidence presented at the
sentencing hearing,
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3 42 Pa.C.S. §§ 9541-9546.
4 In accordance with the PCRA court’s August 9, 2021 order, Appellant was
not directed to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b) as he had already filed a concise statement in
his initial appeal and the trial court had issued a Pa.R.A.P. 1925(a) opinion on
December 7, 2018.
On September 14, 2021, this Court consolidated Appellant’s appeals sua
sponte.
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b. that Appellant demonstrated contrition for his criminal
conduct and his strong desire to continue with treatment of
his drug and alcohol and mental health issues, and,
c. the consecutive sentence imposed fails to account for the
significant steps Appellant has taken to take responsibility
for his actions?
Appellant’s Brief at 5.
Appellant raises a challenge to the discretionary aspect of his sentence,
which is not appealable as of right. Commonwealth v. Akhmedov, 216
A.3d 307, 328 (Pa. Super. 2019) (en banc).
Rather, an appellant challenging the sentencing court’s discretion
must invoke this Court’s jurisdiction by (1) filing a timely notice of
appeal; (2) properly preserving the issue at sentencing or in a
motion to reconsider and modify the sentence; (3) complying with
Pa.R.A.P. 2119(f), which requires a separate section of the brief
setting forth “a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of a
sentence[;]” and (4) presenting a substantial question that the
sentence appealed from is not appropriate under the Sentencing
Code[.]
Id. (citation omitted). Only once the appellant has satisfied each of the four
requirements to invoke our jurisdiction will we proceed to review the merits
of the discretionary sentencing issue under an abuse of discretion standard.
Id. at 328-29.
Appellant filed timely notice of appeal, preserved his sentencing issues
in his post-sentence motion, and included a Rule 2119(f) statement in his
brief. We, therefore, must review the Rule 2119(f) statement to determine
whether Appellant has raised a substantial question. A substantial question is
present where the appellant advances an argument that the sentence was
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inconsistent with a specific provision of the Sentencing Code or contrary to
the fundamental norms underlying the sentencing process. Id. at 328. The
question of whether a substantial question is present must be evaluated on a
case-by-case basis. Commonwealth v. Radecki, 180 A.3d 441, 468 (Pa.
Super. 2018) “We cannot look beyond the statement of questions presented
and the prefatory Rule 2119(f) statement to determine whether a substantial
question exists.” Id. (citation and brackets omitted).
In his Rule 2119(f) statement, Appellant asserts that the aggregate
sentence imposed by the trial court of 5½ to 11 years consisting of consecutive
sentences at the two dockets was “an unnecessarily harsh sentence.”
Appellant’s Brief at 14. Appellant’s statement of questions adds that his
sentence was manifestly excessive in light of the substantial mitigating
evidence presented at the sentencing hearing, including his contrition for his
crimes, his desire to continue treatment for drug and alcohol and mental
health issues, and efforts at rehabilitation undertaken in jail while Appellant
was awaiting sentencing. Id. at 5.
Generally, an excessiveness claim based upon the trial court running
sentences consecutively, rather than concurrently, is not deemed by this Court
to constitute a substantial question. Radecki, 180 A.3d at 468-70;
Commonwealth v. Caldwell, 117 A.3d 763, 769 (Pa. Super. 2015) (en
banc). “Rather, the imposition of consecutive rather than concurrent
sentences will present a substantial question in only ‘the most extreme
circumstances, such as where the aggregate sentence is unduly harsh,
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considering the nature of the crimes and the length of imprisonment.’”
Caldwell, 117 A.3d at 769 (quoting Commonwealth v. Lamonda, 52 A.3d
365, 372 (Pa. Super. 2012) (en banc)). On the other hand, an excessive
sentence claim paired with an assertion that the sentencing court failed to
consider mitigating evidence is considered a substantial question.
Commonwealth v. Wallace, 244 A.3d 1261, 1278 (Pa. Super.), appeal
granted on other grounds, 270 A.3d 428 (Pa. 2021); Caldwell, 117 A.3d
at 770; Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014).
Appellant’s claim that the trial court’s imposition of consecutive
sentences at the two dockets resulted in an excessive sentence does not raise
a substantial question because Appellant has not alleged that his aggregate
sentence constitutes “extreme circumstances” in light of the conduct in which
he was engaged or the crimes of which he was convicted. Caldwell, 117 A.3d
at 769 (“[A] bald claim of excessiveness due to the consecutive nature of a
sentence will not raise a substantial question.”) (citations omitted); see also
Radecki, 180 A.3d at 470. However, to the extent Appellant argues that the
aggregate sentence imposed was excessive in light of the trial court’s failure
to consider mitigating circumstances presented at sentencing, Appellant has
presented a substantial question that allows for our review of the merits of his
claim. Wallace, 244 A.3d at 1278; Akhmedov, 216 A.3d at 328; Caldwell,
117 A.3d at 770; Raven, 97 A.3d at 1253.
Our standard of review for challenges to the discretionary aspects of
sentencing is as follows:
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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. Watson, 228 A.3d 928, 936-37 (Pa. Super. 2020)
(citation omitted).
The trial court sentenced Appellant in the mitigated range of the
sentencing guidelines for both the PWID and person not to possess a firearm
charges. Therefore, pursuant to Section 9781 of the Sentencing Code, we
may only vacate Appellant’s sentence “where the application of the guidelines
would be clearly unreasonable.” 42 Pa.C.S. § 9781(c)(2). In making this
determination, we must consider the following factors:
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d). We further note that, pursuant to Section 9721(b) of
the Sentencing Code, the trial court must consider “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”
when imposing a sentence of total confinement. 42 Pa.C.S. § 9721(b).
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In arguing that his aggregate sentence of 5½ to 11 years’ imprisonment
followed by 5 years’ probation was excessive and unreasonable, Appellant
contends that the “record is devoid of any consideration of mitigating
circumstances or Appellant’s need for rehabilitation.” Appellant’s Brief at 19.
Appellant further asserts that the trial court “essentially ignored Appellant’s
mental health and drug and alcohol issues.” Id. at 20.
We find no merit in Appellant’s discretionary sentencing claim. First, we
note that the trial court was in possession of, and indicated its review of, the
PSI. N.T., 8/22/18, at 3-4, 9. Where the court has the benefit of a PSI, we
“presume that the sentencing judge was aware of relevant information
regarding the defendant’s character and weighed those considerations along
with mitigating statutory factors.” Commonwealth v. Knox, 165 A.3d 925,
930 (Pa. Super. 2017) (citation omitted). “A [PSI] constitutes the record and
speaks for itself.” Id. (citation omitted). “Having been fully informed by the
[PSI], the sentencing court’s discretion should not be disturbed.” Id. (citation
omitted).
In addition to the PSI, Appellant presented mitigating evidence to the
trial court during the sentencing hearing. The Justice Related Services
representative stated to the trial court that Appellant was eligible for mental
health and drug and alcohol treatment based upon his history of mental health
issues and PTSD diagnosis, and Appellant informed the court of his remorse
for his crimes and that he was working on developing a “positive mental
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attitude with the aid of the drug and alcohol program.”5 N.T., 8/22/18, at 3-
4, 8-9. Furthermore, defense counsel also advised the trial court of
Appellant’s maturation since his arrest, his acceptance of responsibility for his
crimes, and his efforts at rehabilitation while in jail. Id. at 4-7.
Therefore, the record reflects that the trial court was aware of the
mitigating factors when it imposed Appellant’s sentence. The trial court gave
one mitigating factor special weight—Appellant’s decision to enter a guilty plea
and accept responsibility for his crimes—and therefore imposed the sentences
of incarceration at the bottom of the mitigated range. Id. at 11; see also
Trial Court Opinion, 12/7/18, at unnumbered page 4 (stating that the sentence
reflected the mitigating factors, “[m]ost notably . . . Appellant’s willingness to
accept responsibility for his conduct”). Moreover, the court considered
Appellant’s potential for rehabilitation in light of his criminal and personal
history and determined that counseling alone would not alter his self-
destructive path; instead, the court determined that it “must essentially force
you down the correct path [with a sentence of incarceration] in an effort to
save your life.” N.T., 8/22/18, at 10.
Upon our review of the record, we conclude that the trial court
discharged its duties under the Sentencing Code and did not abuse its
discretion. The trial court was provided with the PSI as well as additional
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5Appellant also described his anxiety and PTSD diagnoses to the trial court
during his plea colloquy. N.T., 5/21/18, at 12-14.
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mitigating evidence during the sentencing hearing, and therefore we must
presume that the trial court considered these factors when determining
Appellant’s sentence. Knox, 165 A.3d at 930. The court also adequately
addressed the Section 9721(b) factors on the record at the sentencing hearing
and explained both its rationale for imposing the sentences in the mitigated
range and running the sentences at the two dockets consecutively because
they involved “two separate sets of crimes” on “two separate dates.” N.T.,
8/22/18, at 11; see 42 Pa.C.S. § 9721(a) (sentencing court authorized to
impose sentences “consecutively or concurrently”); Commonwealth v.
Zirkle, 107 A.3d 127, 133 (Pa. Super. 2013) (stating that “imposition of
consecutive rather than concurrent sentences lies within the sound discretion
of the sentencing court”) (citation omitted).
While Appellant takes issue in this appeal with the fact that the trial
court did not give greater weight to certain mitigating factors, all that the
Sentencing Code requires is that the court consider all of the relevant factors
when imposing the sentence. See Commonwealth v. Naranjo, 53 A.3d 66,
72-73 (Pa. Super. 2012) (fact that trial court “simply chose to emphasize
certain factors more heavily than [a]ppellant’s remorse, potential for
rehabilitation, and his status as a first time offender” did not warrant a finding
that sentence was unreasonable where the court was in possession of PSI and
appropriately weighed sentencing factors). Accordingly, Appellant is entitled
to no relief in this appeal, and we affirm the judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/3/2022
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