J-S32044-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
VICTOR EVERETT, :
:
Appellant : No. 235 WDA 2015
Appeal from the Judgment of Sentence entered on October 29, 2014
in the Court of Common Pleas of Allegheny County,
Criminal Division, No. CP-02-CR-0002730-2014
BEFORE: SHOGAN, OLSON and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JUNE 03, 2015
Victor Everett (“Everett”) appeals from the judgment of sentence
imposed after he pled guilty to one count each of possession with intent to
deliver heroin (“PWID”) and possession of heroin.1 We affirm.
On February 14, 2014, following a traffic stop of a vehicle in which
Everett was a passenger, police discovered that he had an active warrant for
his arrest. A search of Everett’s person produced three bundles of heroin
(weighing a total of nine grams), a large amount of U.S. currency, and three
separate cell phones. After Everett was placed under arrest, the
Commonwealth charged him with the above-mentioned offenses, as well as
possession of drug paraphernalia.
1
See 35 P.S. § 780-113(a)(30), (a)(16).
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In July 2014, Everett entered into a negotiated plea agreement,
whereby the Commonwealth agreed to withdraw the count of possession of
drug paraphernalia in exchange for Everett’s guilty plea to PWID and
possession of heroin. The plea agreement did not include any provisions
regarding sentencing. Following the trial court’s acceptance of Everett’s
guilty plea, the court ordered the preparation of a pre-sentence investigation
report (“PSI”). On October 29, 2014, the trial court sentenced Everett to
three to six years in prison, followed by five years of probation. Notably to
the instant appeal, this sentence was three months longer than the
aggravated-range sentence under the applicable sentencing guidelines.
Everett timely filed post-sentence Motions, asserting, inter alia, that
his sentence was excessive, and the trial court failed to state adequate
reasons on the record for its sentence. Following the trial court’s denial of
his post-sentence Motions, Everett filed a timely Notice of Appeal.
Everett presents the following issue for our review:
Did the trial court err in denying [Everett’s] post[-]sentencing
Motions[,] since the trial court erred in imposing an excessive
sentence for [PWID] heroin[, which] was 3 months above the
aggravated range of the sentencing guidelines, but [Everett] had
accepted responsibility for his crime and pled guilty[?]
Moreover, the trial court failed to state adequate reasons for
sentencing outside of the aggravated range of the sentencing
guidelines. Additionally, the trial court failed to consider all of
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the factors contained at 42 Pa.C.S[.A]. §§ 9721(b) and
9781(d).[2]
Brief for Appellant at 3 (capitalization omitted, footnote added).
Everett argues that his sentence “was manifestly excessive, since he
had accepted responsibility for this crime and pled guilty.” Id. at 17.
Everett further contends that the sentencing court failed to state adequate
reasons on the record for imposing a sentence in excess of the aggravated
range. Id. at 17, 18. Finally, Everett argues that the sentencing court
abused its discretion by “fail[ing] to consider the factors at 42 Pa.C.S.[A].
§ 9721 …, and the nature and characteristics of [Everett].” Brief for
Appellant at 18.
Everett’s claims present a challenge to the discretionary aspects of his
sentence, from which there is no absolute right to appeal. See
Commonwealth v. Hill, 66 A.3d 359, 363 (Pa. Super. 2013). Rather,
where, as here, the appellant has preserved the sentencing challenge for
appellate review by raising it at sentencing or in a timely post-sentence
motion, the appellant must (1) include in his brief a concise statement of the
reasons relied upon for allowance of appeal with respect to the discretionary
aspects of a sentence, pursuant to Pa.R.A.P. 2119(f); and (2) show that
2
Though Everett argues that the sentencing court improperly failed to
consider the provisions of section 9781(d), this section applies to appellate
courts, when conducting a review of the record concerning a challenge to a
sentence on appeal. See 42 Pa.C.S.A. § 9781(d) (setting forth four factors
that an appellate court should consider when determining whether a
sentence is unreasonable); Commonwealth v. Zeigler, 2015 PA Super 57,
*12 (Pa. Super. 2015).
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there is a substantial question that the sentence imposed is not appropriate
under the Sentencing Code. Hill, 66 A.3d at 363-64.
Here, Everett included a Rule 2119(f) Statement in his brief. See Brief
for Appellant at 9-10. Moreover, we determine that Everett’s above-
mentioned claims present a substantial question for our review. See
Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (noting
that an “[a]ppellant’s contention that the sentencing court exceeded the
recommended range in the Sentencing Guidelines without an adequate basis
raises a substantial question for this Court to review.”); Commonwealth v.
Holiday, 954 A.2d 6, 10 (Pa. Super. 2008) (stating that “[a] claim that the
sentencing court imposed a sentence outside of the guidelines without
specifying sufficient reasons presents a substantial question for our
review.”).
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. Garcia-Rivera, 983 A.2d 777, 780 (Pa. Super. 2009)
(citation omitted).
The Sentencing Code sets forth the considerations a sentencing court
must take into account when formulating a sentence, providing that “the
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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] judge ... [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 it 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). An appellate court must vacate and remand a case
where it finds that “the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.” 42 Pa.C.S.A. § 9781(c)(3).
Initially, we observe that the sentencing court in the instant case had
the benefit of a PSI. Where a sentencing court is informed by a PSI, “it is
presumed that the court is aware of all appropriate sentencing factors and
considerations, and that where the court has been so informed, its discretion
should not be disturbed.” Commonwealth v. Ventura, 975 A.2d 1128,
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1135 (Pa. Super. 2009). Moreover, “[t]he sentencing judge can satisfy the
requirement that reasons for imposing sentence be placed on the record by
indicating that he or she has been informed by the [PSI]; thus properly
considering and weighing all relevant factors.” Id. (citation omitted).
Because the sentencing court in the instant case stated, on more than
one occasion, that it had reviewed Everett’s PSI “in its entirety,” it is
presumed that the court considered his rehabilitative needs, character, and
the other relevant factors enumerated in section 9721(b). See id.; see
also Commonwealth v. Fowler, 893 A.2d 758, 766 (Pa. Super. 2006)
(rejecting the appellant’s claim that the sentencing court had abused its
discretion by imposing sentence without stating adequate reasons on the
record, and holding that, “[s]ince the sentencing court had and considered a
[PSI], this fact alone was adequate to support the sentence[.]”).
Moreover, the record belies Everett’s bald claim that the sentencing
court failed to state adequate reasons on the record for imposing a sentence
above the aggravated range. To the contrary, the sentencing court
thoroughly stated its reasons and explained why it deemed that such
sentence was appropriate under the circumstances. See N.T., 10/29/14, at
8-11. To elaborate, in its Pa.R.A.P. 1925(a) Opinion, the sentencing court
summarized its reasons for imposing Everett’s sentence as follows:
This Court gave careful consideration to the [PSI,] which
outlined [Everett’s] past convictions for drug dealing. The Court
also considered [Everett’s] history of crack cocaine use. This
Court also considered that the conduct that brought [Everett]
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before the Court was that he was now selling heroin and he did
so while he was on probation for a previous drug offense. This
Court’s chief concern was that [Everett] was not responding to
rehabilitation efforts. At the time of his arrest, [Everett] was
found in possession of several bundles of heroin, cash and three
different cell phones. [Everett] attempted to convince the Court
that he was taking steps to reform his life. This Court believed
that [Everett] was not sincere when he was addressing the
Court. This Court also noted that the [PSI] reflected that
[Everett] was not sincere when he spoke to authorities. His lack
of sincerity was borne out at sentencing[,] when [he] attempted
on two occasions to walk out of the courtroom during sentencing
and then, at the conclusion of the sentencing, he defiantly
directed profanity toward the Court. [Everett’s] inability to
conform his conduct to the law after multiple convictions and jail
sentences justified the sentence imposed in this case.
Trial Court Opinion, 3/9/15, at 3-4; see also N.T., 10/29/14, at 8-11.
Additionally, regarding Everett’s objection to his sentence being
outside of the aggravated range of the sentencing guidelines, this Court has
observed that
although the sentencing guidelines are an important factor in
sentencing, they are but only one factor when determining an
individualized sentence: The guidelines have no binding effect,
create no presumption in sentencing, and do not predominate
over other sentencing factors – they are advisory guideposts
that are valuable, may provide an essential starting point, and
that must be respected and considered; they recommend,
however, rather than require a particular sentence.
Holiday, 954 A.2d at 13 (citation, paragraph break, and brackets omitted);
see also Commonwealth v. Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007)
(stating that the sentencing guidelines are purely advisory in nature).
Based upon the foregoing, our review of the record demonstrates that
the sentencing court carefully considered the general standards articulated
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in section 9721(b) of the Sentencing Code, and stated ample reasons on the
record for imposing a sentence in excess of the aggravated range. We
discern no abuse of discretion by the sentencing court, and determine that
Everett’s sentence is neither excessive nor unreasonable.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/3/2015
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