Com. v. Martin, R., Jr. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
REGGIE JAY MARTIN, JR.
Appellant No. 953 MDA 2021
Appeal from the Judgment of Sentence Entered March 17, 2021
In the Court of Common Pleas of the 39th Judicial District, Franklin County
Branch, Criminal Division at No: CP-28-CR-0000728-2020
BEFORE: PANELLA, P.J., STABILE, J., and DUBOW, J.
MEMORANDUM BY STABILE, J.: FILED APRIL 01, 2022
Appellant, Reggie Jay Martin, Jr., appeals from the March 17, 2021
judgment of sentence imposing an aggregate 30 to 120 months of
incarceration followed by 24 months of probation for unlawful transfer of a
firearm, materially false statement in connection with the transfer of a firearm,
and unsworn falsification to authorities.1 We affirm.
The record reflects that Appellant—who does not have a license to
import, manufacture, or deal firearms—purchased then privately transferred
a .40 caliber Hi-Point handgun (the “Firearm”) to another unlicensed person
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1 18 Pa.C.S.A. §§ 6111(c), (g)(4)(ii), and 4904(a)(1), respectively.
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in violation of § 6111(c).2 In purchasing the handgun, Appellant made false
statements on Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”)
Form 4473 and in connection with the Pennsylvania Instant Check System
(“PICS”). These false statements resulted in charges under §§ 6111(g)(4)(ii)
and 4904(a)(1). Subsequently, the Firearm was identified as one used by an
unidentified perpetrator to shoot and injure a Pennsylvania State Police
Trooper.
Appellant entered an open plea of guilty, and the trial court imposed 24
to 60 months of incarceration for § 6111(c), a consecutive 6 to 60 months of
incarceration for the violation of § 6111(g)(4)(ii), and 24 months of probation
for the violation of § 4904(a)(1). The periods of incarceration fell within the
aggravated guideline range. Appellant filed a timely post-sentence motion
seeking modification of his sentence on March 22, 2021. The trial court denied
that motion on June 21 ,2021. This timely appeal followed.
Appellant presents two assertions of error:
1. Whether the trial court abused its discretion by imposing
consecutive sentences?
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2 Section 6111(c) provides in relevant part:
Any person who is not a licensed importer, manufacturer or dealer
and who desires to sell or transfer a firearm to another unlicensed
person shall do so only upon the place of business of a licensed
importer, manufacturer, dealer or county sheriff's office, the latter
of whom shall follow the procedure set forth in this section as if
he were the seller of the firearm.
18 Pa.C.S.A. § 6111(c).
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2. Whether the trial court abused its discretion by imposing an
aggravated range sentence based on the actions of other
individuals, for which those other individuals have not been
convicted?
Appellant’s Brief at 14.
We note at the outset that the record does not contain a transcript of
Appellant’s sentencing hearing. The record includes a July 16, 2021 request
for the preparation of transcripts of Appellant’s March 17, 2021 sentencing
and the June 17, 2021 hearing, but that request is not in the form required
by Pa.R.A.P. 1911(a)3 and Local Rule 39-4007. An inquiry with the local
prothonotary confirmed that the transcript of Appellant’s March 17, 2021
sentencing hearing was never properly requested and therefore never
transcribed.
Regarding Appellant’s first assertion of error, we can conclude without
reference to a transcript that it fails to present a substantial question.
An appeal raising the discretionary aspects of sentencing is
not guaranteed as of right; rather, it is considered a petition for
permission to appeal. In order to reach the merits of a
discretionary aspects claim, we must engage in a four-part
analysis to determine:
(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
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3 Rule 1911(a) provides: “(a) General rule. The appellant shall request
any transcript required under this chapter in the manner and make any
necessary payment or deposit therefor in the amount and within the time
prescribed by Rules 4001 et seq. of the Pennsylvania Rules of Judicial
Administration.” Pa.R.A.P. 1911(a).
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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.
***
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. A substantial
question exists only when the appellant advances a colorable
argument that the sentencing judge's actions 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. Mulkin, 228 A.3d 913, 916 (Pa. Super. 2020) (some
citations omitted).
As noted above, Appellant filed a timely motion to modify his sentence
(it raised both issues presented in this appeal), and he filed a timely notice of
appeal. In his Pa.R.A.P. 2119(f) statement, Appellant argues the trial court
abused its discretion in imposing consecutive sentences. “[T]he imposition of
consecutive, rather than concurrent, sentences may raise a substantial
question in only the most extreme circumstances, such as where the
aggregate sentence is unduly harsh, considering the nature of the crimes and
the length of imprisonment.” Commonwealth v. Lamonda, 52 A.3d 365,
372 (Pa. Super. 2012), appeal denied, 75 A.3d 1281 (Pa. 2013). Nowhere
in his Pa.R.A.P. 2119(f) statement does Appellant address his aggregate
sentence considering the nature of the crimes committed. He argues instead
that the trial court improperly imposed consecutive sentences “for what
amounted to a singular act.” Appellant’s Brief at 19. Appellant cites no law
holding that the imposition of consecutive sentence for offenses arising out of
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one act4 presents a substantial question. We therefore conclude that
Appellant’s first assertion of error does not present a substantial question.
Appellant also argues that the trial court relied on an impermissible
factor—the alleged but unproven subsequent criminal conduct of others—in
fashioning its sentence. A trial court’s reliance on an impermissible factor
raises a substantial question. Commonwealth v. Simpson, 829 A.2d 334,
337-38 (Pa. Super. 2003).
As to the merits analysis of this issue, this Court has written:
A sentence is invalid if the record discloses that the
sentencing court may have relied in whole or in part upon an
impermissible consideration. This is so because the court violates
the defendant's right to due process if, in deciding upon the
sentence, it considers unreliable information, or information
affecting the court's impartiality, or information that it is otherwise
unfair to hold against the defendant.
Commonwealth v. Downing, 990 A.2d 788, 793 (Pa. Super. 2010).
Further,
In deciding whether a trial judge considered only
permissible factors in sentencing a defendant, an appellate
court must, of necessity, review all of the judge's
comments. Moreover, in making this determination it is not
necessary that an appellate court be convinced that the trial judge
in fact relied upon an erroneous consideration; it is sufficient to
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4 Appellant does not argue in his brief that any of the offenses merged for
sentencing purposes. Merger implicates the legality of the sentence and can
be raised sua sponte by the reviewing court. Commonwealth v. Jenkins,
96 A.3d 1055, 1056 (Pa. Super. 2014), appeal denied, 104 A.3d 3 (Pa.
2014). We agree with the trial court’s conclusion that Appellant’s convictions
do not merge because the three offenses he committed contain distinct
elements. See Trial Court Opinion, 9/3/21, at 5-6.
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render a sentence invalid if it reasonably appears from the record
that the trial court relied in whole or in part upon such a factor.
Commonwealth v. Scott, 860 A.2d 1029, 1030 (Pa. Super. 2004) (emphasis
added), appeal denied, 889 A.2d 1215 (Pa. 2005).
Appellant’s failure to procure and file of record a transcript from his
sentencing hearing, makes it impossible for this Court to review all the trial
court’s comments during sentencing. We therefore conclude Appellant has
waived his second argument.5 Pa.R.A.P. 1911(d); Cade v. McDaniel, 679
A.2d 1266, 1268-69 (Pa. Super. 1996).
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5 We offer several observations based on the following portion of the trial
court’s Pa.R.A.P. 1925(a) opinion:
In the instant case, Appellant by his own admission
knowingly cooperated with the request of a convicted felon to
purchase a handgun in violation of a law that’s [sic] clear purpose
is to prevent firearms from being placed in the hand of a person
who has shown a clear propensity to commit crimes and acts of
violence. Ultimately that same person either intentionally or
unintentionally allows that firearm to come into possession of [a]
person who shot and severely injured a Pennsylvania State
Trooper. The fact that the firearm purchased by Appellant has
been identified as the firearm used to shoot a law enforcement
officer is damning, regardless of whether or not the identity of the
shooter has yet to be proven[.]
Trial Court Opinion, 9/3/21, at 12-13. Appellant does not dispute in his brief
that he knowingly provided the Firearm to a convicted felon. Nor does he
dispute that the Firearm has been identified as the weapon that severely
injured a state trooper. Thus, based on our limited ability to review Appellant’s
argument (which, of necessity, cites only to the trial court opinion), it appears
that Appellant’s argument misrepresents the trial court's sentencing rationale.
The court did not base Appellant’s sentence on the alleged but unproven
criminal conduct of a third party. Rather, the court considered that Appellant
(Footnote Continued Next Page)
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Because Appellant’s first argument does not present a substantial
question and his second argument is waived, we affirm the judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/01/2022
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did not merely transfer the Firearm in violation of § 6111(c), he knowingly
transferred it to a convicted felon. Subsequently, the Firearm became the
instrument of a violent crime. Section 9721(b) permits the court to consider
the impact of the crime on its victim, and in this case, sadly, Appellant’s
unlawful transfer of the Firearm has a readily identifiable victim. 42 Pa.C.S.A.
§ 9721(b).
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