Opinion
J-S75040-13 No. 1684 EDA 2013
03-27-2014
COMMONWEALTH OF PENNSYLVANIA, Appellee v. MUHAAFIZ IBN SALAAM, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence entered on April 11, 2013
in the Court of Common Pleas of Northampton County,
Criminal Division, No. CP-48-CR-0003376-2012
BEFORE: GANTMAN, SHOGAN and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Muhaafiz Ibn Salaam ("Salaam") appeals from the judgment of sentence imposed after he pled guilty to conspiracy to commit robbery. We affirm.
See 18 Pa.C.S.A. § 903.
In the early morning hours of August 12, 2012, Salaam and four other individuals (collectively "the conspirators") were gathered at a convenience store located in the City of Bethlehem. N.T., 5/7/13, at 10. The conspirators first encountered the two victims, Nicholas Aranow ("Aranow") and Elizabeth Chonski (collectively "the victims"), at the convenience store. Id. Acting pursuant to a ruse planned by the conspirators, one or more of the conspirators approached the victims and asked if they would like to purchase a flat-screen television for $50. Id. at 10-11. The victims indicated their desire to purchase the television, and the conspirators told them that they would have to pick it up at a separate location. Id. at 11. When the victims arrived at this location, one or more of the conspirators grabbed Aranow from behind, and the conspirators demanded money from the victims. Id. Aranow managed to free himself and drew a knife in defense. Id. at 11-12. Salaam then produced a handgun and pointed it at the victims. Id. Without any further altercation, the conspirators and the victims separated and fled in different directions. Id. at 12. The victims called 911, and the police responded and apprehended the conspirators. Id. The victims subsequently identified the conspirators. Id.
The Commonwealth charged Salaam with several offenses, including two counts of attempted robbery and criminal conspiracy. Pursuant to a plea agreement, Salaam agreed to plead guilty to one count of conspiracy to commit robbery, and the Commonwealth agreed that it would withdraw the remaining charges and not pursue the statutory mandatory minimum sentence of five years in prison.
Before accepting Salaam's guilty plea, the trial court gave him a detailed description of the sentences that the court could impose at sentencing and the applicable sentencing guideline ranges. Id. at 7-9. The trial court informed Salaam that it could potentially impose a sentence in the aggravated range at sentencing, with a minimum sentence of up to 66 months in prison. Id. at 8-9. The trial court additionally ordered the preparation of a pre-sentence investigation report ("PSI").
At sentencing, the trial court stated that it had reviewed the PSI and considered all relevant information contained therein. N.T., 5/17/13, at 2. Prior to imposing sentence, the trial court observed that it had considered, inter alia, the following: (1) Salaam was seventeen-years-old at the time of the attempted robbery and sentencing, id. at 14; (2) Salaam had been a member of an adult gang for approximately four years and he had a history of carrying a firearm, id. at 16, 18; (3) Salaam actually possessed the firearm used in the attempted robbery, id. at 24; (4) Salaam took responsibility for his actions by pleading guilty, id.; (5) Salaam had no misconducts while in prison and was on track to receive his high school G.E.D., id. at 13, 25; (6) the impact of the crime on the victims, id. at 22, 25; and (7) the PSI revealed that Salaam had an extensive criminal history as a juvenile. Id. at 22, 25. Notably, the trial court pointed out that although Salaam's prior record score ("PRS") was only "two," this PRS was calculated by applying merely one of Salaam's myriad prior juvenile adjudications. Id. at 2-3, 24-25. Additionally, the trial court stated that the offense gravity score of the crime was nine, and observed that the applicable sentencing guideline ranges were calculated by applying the deadly weapon used sentencing enhancement (hereinafter "DWE/used enhancement"), since Salaam had used a firearm during the crime. Id. at 3. Based upon the trial court's consideration of the foregoing information, it sentenced Salaam to an aggravated range sentence of five to fifteen years in prison. Id. at 24.
We observe that the PSI is not contained within the certified record. However, Salaam's defense counsel discussed Salaam's prior offenses at the sentencing hearing, stating, "I ... was struck by two pages of offenses that appear to start when [Salaam] was 12-years-old through the juvenile system N.T., 5/17/13, at 10. Defense counsel stated that Salaam's juvenile adjudications included, inter alia, the following offenses: burglary, simple assault, defiant trespass, robbery, and possession of a small amount of marijuana. Id. at 10-11.
The prosecutor explained that the only offense that counted toward Salaam's PRS was his juvenile adjudication, in March 2012, for conspiracy to commit aggravated assault, a felony offense. N.T., 5/17/13, at 21. Section 303.6 of the Sentencing Guidelines provides that, for sentencing purposes, a prior juvenile adjudication is counted in an offender's PRS where "[t]he juvenile offense occurred on or after the offender's 14th birthday, and" "[t]here was an express finding by the juvenile court that the adjudication was for a felony 204 P.S. § 303.6(a).
The applicable sentencing guidelines called for a minimum standard range sentence between 42 to 54 months in prison. Accordingly, the trial court's aggravated range minimum sentence of 60 months (5 years) in prison exceeded the standard range sentence by 6 months.
Salaam filed a Motion for Reconsideration of Sentence, asserting that the trial court abused its discretion by imposing an "unwarranted and unduly harsh" aggravated range sentence. The trial court denied Salaam's Motion, after which he timely filed a Notice of Appeal.
On appeal, Salaam presents the following issues for our review:
I. Whether the trial court erred by imposing an aggravated range sentence that was unwarranted and not properly supported or justified for the reasons stated by the trial court at the time of sentencing[?]Brief for Appellant at 7 (issues numbered). Because all of Salaam's issues challenge the discretionary aspects of his sentence, we will address them together.
II. Whether the [trial] court erred by not properly considering or giving appropriate weight to the mitigating factors in this case[?]
III. Whether the trial court erred by not properly considering or giving weight to [Salaam's] rehabilitative needs[?]
There is no absolute right to appeal the discretionary aspects of a sentence. Commonwealth v. Hill, 66 A.3d 359, 363 (Pa. Super. 2013). Rather, where, as here, the appellant has preserved the discretionary sentencing claim for appellate review by raising it in a timely post-sentence motion,
[t]wo requirements must be met before we will review [a challenge to the discretionary aspects of sentence] on its merits. First, [pursuant to Pa.R.A.P. 2119(f),] an appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. Second, the appellant must show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. That is, that the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process. We examine an appellant's Pa.R.A.P. 2119(f) statement to determine whether a substantial question exists.Id. at 363-64 (citation to case law and brackets omitted).
Salaam has included a Rule 2119(f) Statement in his brief. Accordingly, we review the below claims, set forth in Salaam's Rule 2119(f) Statement, to determine whether the claims present a substantial question for our review:
[T]he [trial] court's reasons for the aggravated range sentence do not justify the sentence imposed because the factors are already addressed by the sentencing guidelines. Specifically[,] the [trial] court stated that the reasons for an aggravated range sentence were []the nature of the crime, the fact that [Salaam] was the gunman, the impact on the victims, and the fact that the guidelines do not include certain juvenile adjudications [in Salaam's PRS]. It is respectfully submitted that the "nature of the crime" is addressed by the sentencing commission in setting the Offense Gravity Score; the fact of [Salaam] being the "gunman" is addressed by the [DWE/used enhancement], the "impact on the victims" is unsupported by the record (the victims neither testified nor submitted a victim impact statement) and speculative[; and] the un-counted "juvenile adjudications" were not included in the calculation [of Salaam's PRS] because of the decided policy of the Commonwealth as expressed through the Sentencing Commission.Brief for Appellant at 5-6. Salaam's claims present a substantial question. See Commonwealth v. Booze, 953 A.2d 1263, 1278 (Pa. Super. 2008) (observing that a claim that the sentencing court failed to state adequate reasons on the record for imposing an aggravated range sentence raises a substantial question); Commonwealth v. McNabb, 819 A.2d 54, 56-57 (Pa. Super. 2003) (stating that a claim that a sentence is excessive because of the sentencing court's reliance on impermissible factors raises a substantial question).
Additionally, Salaam challenges his sentence by asserting that the trial court improperly failed to adequately consider mitigating circumstances and his rehabilitative needs. Both of these claims present a substantial question for our review. See Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (stating that a substantial question is raised where an appellant alleges that the sentencing court imposed sentence in the aggravated range without adequately considering mitigating circumstances); Commonwealth v. Downing, 990 A.2d 788, 793 (Pa. Super. 2010) (stating that a claim that the sentencing court failed to consider a defendant's rehabilitative needs raises a substantial question).
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. Bricker, 41 A.3d 872, 875 (Pa. Super. 2012) (citation omitted).
The Sentencing Code sets forth the considerations a sentencing court must take into account when formulating a sentence, stating that "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). Additionally, in every case where a sentencing court imposes a sentence outside of the sentencing guidelines, the court must provide, in open court, a contemporaneous statement of reasons in support of its sentence. Id. When doing so,
[a sentencing court must] demonstrate on the record, as a proper starting point, its awareness of the sentencing guidelines. Having done so, the sentencing court may deviate from the guidelines, if necessary, to fashion a sentence which takes into account the protection of the public, the rehabilitative needs of the defendant, and the gravity of the particular offense as it relates to the impact on the life of the victim and the community, so long as [the court] also states of record the factual basis and specific reasons which compelled it to deviate from the guideline range.Commonwealth v. Bowen, 55 A.3d 1254, 1264 (Pa. Super. 2012) (citation and brackets omitted).
Finally, when evaluating a challenge to the discretionary aspects of sentence, it is important to remember that the sentencing guidelines are "purely advisory in nature." Commonwealth v. Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007); see also Commonwealth v. Walls, 926 A.2d 957, 963 (Pa. 2007) (stating that "rather than cabin the exercise of a sentencing court's discretion, the [sentencing] guidelines merely inform the sentencing decision.").
Where, as here, the sentencing court had the benefit of a PSI, it is presumed that the court was aware of any and all relevant information regarding the defendant's character and weighed those considerations along with the mitigating statutory factors. Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). Where a sentencing court has been fully informed by a PSI, its discretion should not be disturbed. Id. Accordingly, Salaam's assertion that the sentencing court erred in failing to adequately consider mitigating factors does not entitle him to relief, see id., and, moreover, this claim is belied by the record. See N.T., 5/17/13, at 13-14, 16, 24 (wherein the sentencing court observed that it had considered (1) Salaam's young age; (2) his acceptance of responsibility in pleading guilty; (3) that Salaam had no misconducts while in prison; and (4) that Salaam had made efforts to obtain his G.E.D. while in prison).
Salaam argues that the trial court abused its discretion in sentencing him because the court's stated reasons for imposing an aggravated range sentence are already addressed by the sentencing guidelines applicable to his case. See Brief for Appellant at 10-11. We will address below the trial court's separate "reasons" for the sentence imposed that Salaam challenges.
First, Salaam contends that the trial court improperly used his multiple juvenile adjudications that were "un-counted" toward his PRS as one of the court's reasons for imposing a sentence in the aggravated range. Id. at 11. Salaam asserts that this was "improper because [the juvenile adjudications] were not included in the calculation because of the decided policy of the Commonwealth as expressed through the Sentencing Commission." Id. (citing 204 P.S. § 303.6(a) (describing the circumstances in which prior juvenile adjudications are counted in an offender's PRS)).
Initially, we observe that the trial court never specifically stated that it was using Salaam's "un-counted" juvenile adjudications as an aggravating circumstance, and the record reveals that only one of Salaam's juvenile adjudications counted towards his PRS. Additionally, this Court has stated as follows regarding the purposes for which a sentencing court may consider prior adjudications of delinquency:
[A] sentencing court is required to examine a defendant's juvenile record when crafting an appropriate sentence.Commonwealth v. Lilley, 978 A.2d 995, 1000 (Pa. Super. 2009) (brackets omitted); see also Smith, 481 A.2d at 1366 (stating that "[t]he Juvenile Act itself, 42 Pa.C.S.A. § 6354(b)(1), carves out an exception to the use of the juvenile's record in a subsequent adult proceeding, stating such records may be used: ["](1) in dispositional proceedings after conviction ... for the purpose[s] of a presentence investigation and report [if the child was adjudicated delinquent." Id. ]). Accordingly, even if the trial court in this case did take Salaam's extensive prior juvenile criminal history into account when imposing sentence, this does not constitute an abuse of discretion. See Lilley, supra; see also, e.g., Commonwealth v. Krum, 533 A.2d 134, 139 (Pa. Super. 1987) (en banc) (holding that the defendant's lengthy juvenile record, along with two other factors, constituted adequate reason for imposition of an aggravated range sentence for defendant's adult offense).
A child who continues his pattern of serious and violent anti-social activity into adulthood, should not receive the benefit of a cloak of immunity regarding that behavior, when it is relevant to predicting future behavior and the public safety is at risk.Commonwealth v. Smith, 333 Pa. Super. 179, 481 A.2d 1365, 1366 (Pa. Super. 1984)[.]
Moreover, the trial court properly considered the fact that Salaam was serving a juvenile probationary period at the time that he committed the instant attempted robbery. See N.T., 5/17/13, at 20; see also McNabb, 819 A.2d at 57 (holding that it is permissible for a sentencing court to consider a defendant's probationary status at the time of the offense as an aggravating circumstance).
Second, Salaam contends that the trial court abused its discretion by using the fact that he was the gunman during the robbery as one of the court's reasons for the sentence imposed, since this fact was already taken into account, and increased his potential sentence, by the application of the DWE/used enhancement. Brief for Appellant at 11.
In its Opinion, the trial court addressed this claim as follows:
It is agreed that a [DWE/used enhancement] was utilized in calculating the appropriate ranges of sentence. At first blush, the [trial c]ourt would agree that it would be an inappropriate factor upon which to base an aggravated range sentence. However, the [trial c]ourt's reasoning in this case was that the charge pled to was Conspiracy to Commit Robbery. All [of the conspirators] were sentenced utilizing the [DWE/used enhancement]. The [trial c]ourt found it an aggravating factor that [Salaam] was the actual gunman, not just a co-conspirator in a crime in which a gun was utilized. It is respectfully submitted that if this was an improper factor upon which to base the aggravated range sentence, there were other aggravating factors that justified the upward deviation.Trial Court Opinion, 7/18/13, at 4 (unnumbered; emphasis added). After review, we discern no abuse of discretion by the trial court in using, as an aggravating factor, the fact that Salaam was the only conspirator who actually used a deadly weapon in the course of the attempted robbery, as opposed to being merely an unarmed coconspirator.
As an addendum, this Court has stated that once a trial court has determined that a defendant possessed or used a deadly weapon in the commission of an offense, "[t]he trial court lacks the discretion to refuse to apply the deadly weapon sentencing enhancement." Commonwealth v. Jones, 640 A.2d 914, 919 (Pa. Super. 1994). Importantly, the Jones Court stated that "the sentencing judge may depart from the guidelines, once the deadly weapon enhancement is applied, so long as the court provides an adequate explanation for the departure." Id. From our reading of Jones, even where a deadly weapon enhancement has already been applied, a sentencing court is permitted to consider any other relevant aggravating circumstance in imposing an aggravated range sentence, so long as the court places the reasons for its sentence on the record. See id.
Next, according to Salaam, "the [trial] court's justification of the sentence due to the 'impact on the victims' is unsupported by the record[,]" and "[t]his reason [for the trial court's aggravated range sentence] is therefore speculative." Brief for Appellant at 11. We disagree.
The trial court addressed this claim in its Opinion as follows:
In this case, [Salaam] appeared at a [convenience store] known to service students from the college located within blocks of the store. [Salaam] lured two college students to a remote location and, along with [four conspirators], robbed the students at gunpoint. Both victims were young, one was female, and both went to the location after being offered a television for sale. While the Commonwealth did not present the testimony of theTrial Court Opinion, 7/18/13, at 3-4 (unnumbered). The foregoing is supported by the record, and we conclude that the trial court properly considered the impact of the crime on the victims when imposing its aggravated range sentence against Salaam.
victims at the time of sentencing, the [trial c]ourt heard their testimony at the time of trial against one of the [conspirators]. Therefore, it is submitted that the specific facts supporting this particular armed robbery and the effect on the victims are appropriate factors upon which to base an aggravated range sentence.
Finally, Salaam argues that "the trial court [did not] properly consider or give appropriate weight to [Salaam's] rehabilitative needs given his early, persistent and heavy marijuana use and abuse." Brief for Appellant at 12. This assertion is also belied by the record. The trial court stated in its Opinion that
[t]he record reflects that the [trial c]ourt considered [Salaam's] frequent drug use, regular possession of a firearm, and reached the conclusion that [Salaam] was in great need of rehabilitation. Of great concern to the [trial c]ourt was [Salaam's] gang ties and extensive prior criminal record. The [trial c]ourt ordered [Salaam] to be housed in a state prison with other youthful offenders, ordered drug and alcohol treatment, permitted [Salaam] to remain in Northampton County so that he could graduate from high school [with his G.E.D.], and specifically stated that the sentence imposed was an effort to balance the rehabilitative needs, the need to punish [Salaam] for his crime, and the need to send a message to the community. The [trial c]ourt noted that a lesser sentence would depreciate the seriousness of the offense.Trial Court Opinion, 7/18/13, at 4-5 (unnumbered). The trial court's analysis is supported by the record. Moreover, because the trial court was informed by a PSI, it is presumed that the court was aware of all information regarding Salaam, including his rehabilitative needs. See Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009) (rejecting appellant's claim that the sentencing court abused its discretion by failing to adequately consider his rehabilitative needs where the sentencing court was informed by a PSI).
In sum, we conclude that the trial court properly considered the applicable Sentencing Guidelines, weighed all of the relevant factors, and provided adequate reasons on the record in imposing an aggravated range sentence. We discern no abuse of discretion by the trial court.
Judgment of sentence affirmed. Judgment Entered. ________________
Joseph D. Seletyn, Esq.
Prothonotary