J-S41036-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN HARDY CARTER,
Appellant No. 172 MDA 2015
Appeal from the Judgment of Sentence September 26, 2014
in the Court of Common Pleas of Lancaster County
Criminal Division at Nos.: CP-36-CR-0000422-2014
CP-36-CR-0000431-2014
CP-36-CR-0000439-2014
CP-36-CR-0000453-2014
CP-36-CR-0000463-2014
CP-36-CR-0000467-2014
CP-36-CR-0003374-2014
CP-36-CR-0003375-2014
CP-36-CR-0003376-2014
CP-36-CR-0003377-2014
BEFORE: ALLEN, J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JULY 15, 2015
Appellant, John Hardy Carter, appeals from the judgment of sentence
imposed following his entry of two open guilty pleas to thirty-five criminal
offenses he committed in Lancaster and York Counties. Appellant challenges
the discretionary aspects of his sentence. We affirm.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S41036-15
We take the relevant factual and procedural history of this case from
the trial court’s December 18, 2014 opinion and our independent review of
the record. This case arises from Appellant’s several week long crime spree
during which he robbed and burglarized numerous businesses and homes.
Appellant brandished a firearm during several of the incidents, and he
sometimes acted with other co-defendants. He fired a handgun during one
of the robberies, and the bullet narrowly missed a store clerk. Following his
arrest, and while in prison, Appellant formulated a failed plan to escape from
his preliminary hearing by soliciting a cohort to assault the Pennsylvania
State Constable taking him to the hearing.
On June 26, 2014, Appellant entered an open guilty plea to numerous
counts of burglary, robbery, theft, and related charges, along with a count of
criminal solicitation at six separate Lancaster County docket numbers. 1 The
trial court ordered preparation of a supplement to an existing pre-sentence
investigation (PSI) report. Prior to sentencing, four companion cases from
York County2 involving multiple counts of burglary, robbery and related
charges were transferred to Lancaster County for resolution because they
arose from the same course of conduct during the same time-period. See
____________________________________________
1
Docket Nos. 0422-2014, 0431-2014, 0439-2014, 0453-2014, 0463-2014,
and 0467-2014.
2
Docket Nos. 3374-2014, 3375-2014, 3376-2014, and 3377-2014.
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Pa.R.Crim.P. 555. Appellant entered an open guilty plea to these offenses
on September 17, 2014.
On September 26, 2014, the trial court held a hearing on the
Lancaster and York County cases, and it sentenced Appellant to an
aggregate term of not less than forty-three and one-half nor more than
ninety-five years’ incarceration.3 Appellant filed a timely post-sentence
motion to modify sentence on October 6, 2014. On December 18, 2014, the
trial court entered an opinion and order denying Appellant’s post-sentence
motion. This timely appeal followed.4
Appellant raises one issue for our review:
1. Did the [trial] court impose an unreasonable sentence
which contravenes the policy underlying the Sentencing Code
where the sentence is manifestly unreasonable, focuses solely on
the seriousness of the offense without considering any mitigating
factors, is not an individualized sentence and appears to be the
result of partiality, prejudice, bias or ill will?
(Appellant’s Brief, at 4).
Appellant challenges the discretionary aspects of his sentence.
However, “[t]he right to appeal the discretionary aspects of a sentence is not
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3
At the time of sentencing, Appellant was twenty-two years old. (See N.T.
Sentencing, 9/26/14, at 19). He already was serving sentences for other
offenses he committed in Lancaster and Berks Counties. (See id. at 37;
Commonwealth’s Brief, at 5).
4
The trial court did not order Appellant to file a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b). On January 20, 2015, it
entered an order relying on its December 18, 2014 opinion and order. See
Pa.R.A.P. 1925(a).
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absolute.” Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super.
2011) (citation omitted).
Before we reach the merits of this [issue], we must engage
in a four part analysis to determine: (1) whether the appeal is
timely; (2) whether Appellant preserved his issue; (3) whether
Appellant’s brief includes a concise statement of the reasons
relied upon for allowance of appeal with respect to the
discretionary aspects of sentence[, see Pennsylvania Rule of
Appellate Procedure 2119(f)]; and (4) whether the concise
statement raises a substantial question that the sentence is
appropriate under the sentencing code. . . . [I]f the appeal
satisfies each of these four requirements, we will then proceed to
decide the substantive merits of the case.
Commonwealth v. Edwards, 71 A.3d 323, 329-30 (Pa. Super. 2013),
appeal denied, 81 A.3d 75 (Pa. 2013) (citation omitted).
Here, Appellant has complied with the first three requirements because
he filed a timely notice of appeal, preserved his claim in a timely post-
sentence motion, and included a Rule 2119(f) statement in his brief. See
id.
With respect to the fourth requirement:
The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis. A
substantial question exits 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. Austin, 66 A.3d 798, 808 (Pa. Super. 2013), appeal
denied, 77 A.3d 1258 (Pa. 2013) (citations and quotation marks omitted).
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In his Rule 2119(f) statement, Appellant concedes that the sentences
imposed on the individual counts were within the standard range of the
sentencing guidelines. (See Appellant’s Brief, at 8, 10). However, he
maintains that the aggregate sentence imposed is excessive and constitutes
too severe a punishment. (See id. at 8-9). He contends that the court
ignored mitigating factors including his young age and his potential for
rehabilitation, resulting in a sentenced that is not individualized. (See id. at
9-10, 14).
We are mindful that “a sentencing court generally has discretion to
impose multiple sentences concurrently or consecutively, and a challenge to
the exercise of that discretion does not ordinarily raise a substantial
question.” Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super.
2014), appeal denied, 105 A.3d 736 (Pa. 2014) (citations omitted).
However, “this Court has held that an excessive sentence claim—in
conjunction with an assertion that the court failed to consider mitigating
factors—raises a substantial question.” Id. (citations omitted). Therefore,
we will address the merits of Appellant’s claim.
Our standard of review in sentencing matters is well settled:
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.
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Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa. Super. 2013), appeal
denied, 85 A.3d 481 (Pa. 2014) (citation omitted).
“[T]he 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). Therefore,
“a sentencing court must formulate a sentence individualized to that
particular case and that particular defendant.” Clarke, supra at 1287
(citations and internal quotation marks omitted).
In the instant case, at the sentencing hearing, the court heard a
statement from Appellant and argument from defense counsel and the
Commonwealth. (See N.T. Sentencing, 9/26/14, at 7-17). The court
acknowledged the contents of several victim-impact statements and made
the PSI report a part of the record. (See id. at 6, 13, 18, 31). It explained
its rationale for the aggregate sentence as follows:
I have been reviewing all of this information; reviewing
each criminal complaint and affidavit of probable cause;
reviewing each criminal information; reviewing everything in the
pre-sentence investigation report; certainly reviewing the
statements of the victims that have been offered; trying to
discern [Appellant’s] motivation or path. And two things more
than anything else stand out to me.
Within mere months . . . of being released on the York
County charges, which were serious charges and would have
called for state time, [Appellant] resumed his prior activities, and
he did so with an enthusiasm and apparent lack of any
introspection of what he had been through in the juvenile
system, what he had been through in the York County Prison
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system, and certainly without ever appearing to stop and think
about what he had done, maybe it was only minutes before in
any of these given robberies or burglaries, never once pausing to
stop this headlong flight, criminal behavior.
And I am now faced with someone who is serving a state
sentence imposed by this [c]ourt [by] my colleague . . . back in
September. . . .
. . . [Appellant], you are capable of great danger. And in
your headlong flight through life, you take no care for what you
leave behind you and I cannot risk anyone else’s safety,
security, possessions, peace of mind by disregarding the fact
that you are a very, very dangerous man.
And to say that about a 22-year-old, frankly, pains me.
But I look at everything in front of me. . . .
To get my mind and my sense of fairness and justice for
these victims around this has been very difficult.
The easiest thing, other than math, would simply be to
make every single [sentence] consecutive. But I don’t think that
takes into proper account the individual nature of the dockets,
the individual nature of the various offenses.
I think the tipping point comes for me when on recorded
prison phone calls you try and plan with your girlfriend to
dispose of evidence and embark on this plan to have . . . [a]
breakout from [a] [magisterial district justice] hearing[.] . . .
. . . And I say whether it is immaturity or simply no
motivation on your part to view your conduct and grow from it in
a positive way, I cannot and will not risk guessing that this time
maybe the jail time has made a little difference in you.
And as I say, in trying to fashion the sentences, it has not
been easy, because I want each victim to feel that I have really
looked at their facts and that I appreciate that the things you
may have taken and the mayhem you may have left behind for
them to find are nothing compared to that sense of safety and
security they should have when they’re at home or when they’re
at work.
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And knowing that your ego or your compulsion is such that
doesn’t stop you from flashing the gun and firing the gun, means
that whatever the controls are on that kind of behavior, you
don’t have them. . . .
The idea of confining a young man to a State Correctional
Institution for an extended period of time, for what will largely
be the better part of his life, is not something that I do with any
sense of satisfaction or any sense of ill will towards you as a
human being, but it is consistent with my duty to stop and think
about the magnitude of the crimes, how they have affected
those direct and indirect victims, how the community can be
protected, and how others can be deterred when the [c]ourt
makes a strong statement that behavior of this kind will not be
countenanced in a civilized society, because it is the civilized
society that is entitled to the greater consideration.
You say that reading the papers you feel that the papers
paint you as a monster. [Appellant], I want you to know that I
don’t see you as a monster. I see you as a troubled young man,
but I also see you as a dangerous young man. And I don’t see
any indication from your past that you’ve had any interest in
ameliorating that danger.
(Id. at 17-21).
Thus, the record reflects that the trial court reviewed extensive
documentation regarding this case, carefully considered the individual
sentences, and exercised discretion in declining to run all of the sentences
consecutively. The court’s comments at sentencing demonstrate that it took
into account Appellant’s young age and was “pain[ed]” by it. (Id. at 19).
Further, “where, as here, the sentencing court had the benefit of a
pre-sentence investigation report, we can assume [it] was aware of relevant
information regarding [Appellant’s] character and weighed those
considerations along with mitigating statutory factors.” Commonwealth v.
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Rhoades, 8 A.3d 912, 919 (Pa. Super. 2010), appeal denied, 25 A.3d 328
(Pa. 2011), cert. denied, 132 S. Ct. 1746 (2012) (citation and internal
quotation marks omitted). While the trial court acknowledged that
Appellant’s aggregate sentence is lengthy, (see Trial Court Opinion,
12/18/14, at 7), we agree with the court that it is not manifestly excessive
and Appellant is not entitled to a “volume discount” for his numerous crimes.
Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa. Super. 1995); see
also Commonwealth v. Caldwell, 2015 WL 3444594, at *6 (Pa. Super.
May 29, 2015) (en banc) (holding court did not abuse its discretion in
imposing consecutive sentences resulting in lengthy aggregate sentence
where appellant stole money from his neighbor’s apartment and fired
gunshots at him on a crowded street). Accordingly, after review of the
record, we conclude that the trial court did not abuse its discretion in
imposing Appellant’s sentence. See Clarke, supra at 1287. Appellant’s
sole issue on appeal does not merit relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/15/2015
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