Opinion
J-S59012-18 No. 512 EDA 2018
11-14-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. KEVIN LEWIS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence December 27, 2017
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0005914-2015 BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Kevin Lewis, appeals from the judgment of sentence entered in the Bucks County Court of Common Pleas, following his open guilty plea to two counts of possession with intent to deliver a controlled substance ("PWID") and one count each of fleeing or attempting to elude a police officer and driving while operating privilege is suspended or revoked. We affirm.
35 P.S. § 780-113(a)(30), 75 Pa.C.S.A. §§ 3733(a), 1543(a), respectively.
In its opinion, the trial court fully and correctly sets forth the relevant facts and procedural history of this case. Therefore, we will only summarize them here. In July and August 2015, police arranged two controlled drug buys from Appellant. After the second purchase, police attempted to arrest Appellant. Appellant, however, fled in his vehicle to New Jersey to avoid apprehension. At the time of these events, Appellant's license was suspended.
On December 8, 2017, Appellant entered an open guilty plea to two counts of PWID and one count each of fleeing or eluding a police officer and driving with a suspended license. The court sentenced Appellant to an aggregate term of 9 to 18 years' imprisonment on December 27, 2017. Appellant timely filed post-sentence motions on January 3, 2018, which the court denied on January 19, 2018. Appellant timely filed a notice of appeal on February 14, 2018. On February 16, 2018, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b); Appellant timely complied on March 5, 2018.
Appellant raises the following issue for our review:
DID THE SENTENCING COURT ABUSE ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE AND UNJUST AGGREGATE SENTENCE AS THE SENTENCE DEVIATED ABOVE THE AGGRAVATED RANGE OF THE SENTENCING GUIDELINES WITH ALL COUNTS RUN CONSECUTIVE TO ANY OTHER SENTENCE APPELLANT WAS CURRENTLY SERVING, AND DID NOT CONSIDER THE REHABILITATIVE NEEDS OF APPELLANT, HIS PRIOR RECORD SCORE AS CALCULATED BY THE SENTENCING GUIDELINES OR THE OTHER SENTENCES HE WAS SERVING AT THE TIME THE ABOVE SENTENCE WAS IMPOSED?(Appellant's Brief at 4).
Appellant complains the court sentenced him above the aggravated range of the sentencing guidelines without proper consideration of mitigating sentencing factors. Appellant states the sentencing court should have considered mitigating sentencing factors, such as: (1) Appellant's testimony concerning programs and therapy he participated in while in prison; (2) Appellant's drug addiction; (3) testimony from Appellant's family members regarding the positive changes Appellant has made, as well as the support they will provide for him; and (4) Appellant's guilty plea and acceptance of responsibility for his crimes. Nevertheless, Appellant asserts the sentencing court also relied on factors already contemplated in the available sentencing guidelines, such as Appellant's prior arrests and convictions, to determine an appropriate sentence. Appellant maintains the court abused its discretion when it imposed his current sentences to run consecutively and consecutive to the sentence he was already serving in New Jersey. For these reasons, Appellant concludes his sentence should be vacated and remanded for resentencing. As presented, Appellant's claims challenge the discretionary aspects of his sentence. See Commonwealth v. Anderson , 830 A.2d 1013 (Pa.Super. 2003) (stating claim that court considered improper factors at sentencing refers to discretionary aspects of sentencing); Commonwealth v. Cruz-Centeno , 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996) (explaining claim that court did not consider mitigating factors challenges discretionary aspects of sentencing). See also Commonwealth v. Austin , 66 A.3d 798, 808 (Pa.Super. 2013), appeal denied, 621 Pa. 692, 77 A.3d 1258 (2013) (considering challenge to imposition of consecutive sentences as claim involving discretionary aspects of sentencing).
Challenges to the discretionary aspects of sentencing do not entitle an appellant to an appeal as of right. Commonwealth v. Sierra , 752 A.2d 910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary sentencing issue:
[W]e conduct 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 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).Commonwealth v. Evans , 901 A.2d 528, 533 (Pa.Super. 2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
When appealing the discretionary aspects of a sentence, an appellant must invoke the appellate court's jurisdiction by including in his brief a separate concise statement demonstrating that there is a substantial question as to the appropriateness of the sentence under the Sentencing Code. Commonwealth v. Mouzon , 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f). The concise statement must indicate "where the sentence falls in relation to the sentencing guidelines and what particular provision of the code it violates." Commonwealth v. Kiesel , 854 A.2d 530, 532 (Pa.Super. 2004) (quoting Commonwealth v. Goggins , 748 A.2d 721, 727 (Pa.Super. 2000), appeal denied, 563 Pa. 672, 759 A.2d 920 (2000)).
The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. Anderson , supra. 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." Sierra , supra at 913. A substantial question exists where an appellant alleges the sentencing court erred by imposing an aggravated range sentence without consideration of mitigating circumstances. Commonwealth v. Felmlee , 828 A.2d 1105 (Pa.Super. 2003) (en banc). Likewise, a substantial question exists where an appellant alleges an excessive sentence due to the court's reliance on impermissible factors. Commonwealth v. McNabb , 819 A.2d 54 (Pa.Super. 2003).
Moreover,
Pennsylvania law affords the sentencing court discretion to impose [a] sentence concurrently or consecutively to other sentences being imposed at the same time or to sentences already imposed. Any challenge to the exercise of this discretion does not raise a substantial question. In fact, this Court has recognized the 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.Austin , supra at 808 (internal citations and quotation marks omitted). See also Commonwealth v. Hoag , 665 A.2d 1212, 1214 (Pa.Super. 1995) (stating appellant is not entitled to "volume discount" for his crimes by having all sentences run concurrently). But see Commonwealth v. Dodge , 957 A.2d 1198 (Pa.Super. 2008), appeal denied, 602 Pa. 662, 980 A.2d 605 (2009) (holding consecutive, standard range sentences on thirty-seven counts of petty theft offenses for aggregate sentence of 58½ to 124 years' imprisonment constituted virtual life sentence and was so manifestly excessive as to raise substantial question). "Thus, in our view, the key to resolving the preliminary substantial question inquiry is whether the decision to sentence consecutively raises the aggregate sentence to, what appears upon its face to be, an excessive level in light of the criminal conduct at issue in the case." Commonwealth v. Prisk , 13 A.3d 526, 533 (Pa.Super. 2011). But see Austin , supra (holding that challenge to imposition of consecutive sentences, which yields extensive aggregate sentence, does not necessarily present substantial question as to discretionary aspects of sentencing, unless court's exercise of discretion led to sentence that is grossly incongruent with criminal conduct at issue and patently unreasonable).
Our standard of review concerning the discretionary aspects of sentencing 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.Commonwealth v. Hyland , 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal denied, 586 Pa. 723, 890 A.2d 1057 (2005). Pursuant to Section 9721(b), "the court shall follow the general principle that 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.A. § 9721(b). The record as a whole must reflect the sentencing court's consideration of the facts of the case and the defendant's character. Commonwealth v. Crump , 995 A.2d 1280, 1283 (Pa.Super. 2010), appeal denied, 608 Pa. 661, 13 A.3d 475 (2010). "In particular, the court should refer to the defendant's prior criminal record, his age, personal characteristics and his potential for rehabilitation." Commonwealth v. Griffin , 804 A.2d 1, 10 (Pa.Super. 2002), appeal denied, 582 Pa. 671, 868 A.2d 1198 (2005), cert denied, 545 U.S. 1148, 125 S.Ct. 2984, 162 L.Ed.2d 902 (2005). As a general rule, "a sentencing court may not 'double count' factors already taken into account in the sentencing guidelines." Goggins , supra at 732. Nevertheless, "courts are permitted to use prior conviction history and other factors included in the guidelines if, they are used to supplement other extraneous sentencing information." Commonwealth v. Shugars , 895 A.2d 1270, 1275 (Pa.Super. 2006).
Instantly, Appellant preserved his claims in his post-sentence motion and in his Rule 2119(f) statement, and as presented the claims appear to raise substantial questions to the discretionary aspects of the sentences imposed. Nevertheless, after a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Rea B. Boylan, we conclude Appellant merits no relief. The trial court opinion comprehensively discusses and properly disposes of Appellant's claims. ( See Trial Court Opinion, filed April 2, 2018, at 6-8) (finding: court thoroughly explained on record its sentencing rationale; imposition of aggravated sentence for each PWID conviction and imposition of statutory maximum sentence for fleeing or eluding conviction was appropriate due to nature of offenses, Appellant's prior criminal conduct, and community protection concerns; Appellant engaged in two distinct deliveries of heroin and endangered arresting officer in Appellant's attempt to flee; since 2009, Appellant has committed five similar crimes involving delivery of heroin; in four of those drug deliveries, Appellant engaged in similar aggressive and reckless conduct against police officers; Appellant continues to commit same crimes even after serving lengthy sentences; court considered Appellant's acceptance of responsibility and struggle with drug addiction; these mitigating factors did not outweigh court's concerns regarding nature of current offenses, Appellant's criminal history, and community protection; court exercised its discretion in ordering sentences to run consecutively to each other and to Appellant's existing sentence in New Jersey; lengthy term of imprisonment is necessary to address Appellant's multiple current offenses, substantial criminal history involving similar conduct, recidivism even after serving lengthy sentences, and need for community protection). The record supports the trial court's decision; therefore, we see no reason to disturb it. Accordingly, we affirm on the basis of the trial court's opinion.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/14/18
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