Commonwealth v. Bonner

J-S04023-16

2016 PA Super 48

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

DANTE ALAN BONNER,

Appellant No. 176 WDA 2015

Appeal from the Judgment of Sentence of September 4, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0008568-2013; CP-02-CR-0008642-
2013 AND CP-02-CR-0012173-2012.

BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.

OPINION BY OLSON, J.: FILED FEBRUARY 23, 2016

Appellant, Dante Alan Bonner, appeals from the judgment of sentence

entered on September 4, 2014, as made final by the denial of his post-

sentence motion on December 12, 2014. In this appeal, we consider

whether the Pennsylvania Sentencing Guidelines’ inclusion of certain juvenile

adjudications in calculating a defendant’s prior record score violates the

proportionality principles of the Eighth Amendment. We hold that it is

constitutionally permissible to consider juvenile adjudications when

calculating a prior record score. As we also find Appellant’s discretionary

aspects of sentencing claim without merit, we affirm.

The factual background of case CP-02-CR-0012173-2012 (“case

12173”) is as follows. On October 5, 2012, Allegheny County Housing

*Retired Senior Judge assigned to the Superior Court.
J-S04023-15

Authority Police noticed a vehicle driving in reverse while failing to stop at a

stop sign. Police observed Appellant, the front passenger in the vehicle,

reach under his seat. A search of the vehicle found heroin, a firearm, and

marijuana located under Appellant’s seat.

The factual background of case CP-02-CR-0008568-2013 (“case

8568”) is as follows. In the early morning hours of April 17, 2013, Pittsburgh

Police conducted a traffic stop of a blue Dodge Avenger. Before the officers

could exit their vehicle, Appellant, who was located in the rear seat of the

Avenger, fled the vehicle. Officer Christopher Kertis pursued Appellant and,

during that pursuit, Appellant fired three shots at Officer Kertis. At least one

of those shots hit Officer Kertis. Officer Kertis received treatment at the

hospital, but still suffers symptoms as a result of the shooting.

The factual background of case CP-02-CR-0008642-2013 (“case

8642”) is as follows. On February 15, 2013, Sergeant Cristyn Zett was

driving her personal vehicle when Appellant backed his vehicle into Sergeant

Zett. She exited her vehicle and identified herself as a law enforcement

officer. A struggle between Sergeant Zett and Appellant ensued and

Appellant fled the scene. Appellant was later located and Sergeant Zett

identified him as the individual who backed into her vehicle.

-2-
J-S04023-15

The procedural history of this case is as follows. On June 10, 2014,

Appellant pled guilty to two counts of carrying a firearm without a license,1

two counts of possession of a firearm by a prohibited person,2 possession of

a small amount of marijuana,3 possession of a controlled substance,4

possession with intent to deliver a controlled substance,5 evidence

tampering,6 attempted homicide,7 assault of a law enforcement officer,8

recklessly endangering another person,9 receiving stolen property,10

aggravated assault,11 resisting arrest,12 fleeing the scene of an accident,13

and four summary offenses. In exchange for his guilty pleas, the
____________________________________________

1
18 Pa.C.S.A. § 6106(a)(1).
2
18 Pa.C.S.A. §§ 6105(a)(1), 6105(c)(8).
3
35 P.S. § 780-113(a)(31).
4
35 P.S. § 780-113(a)(16).
5
35 P.S. § 780-113(a)(30).
6
18 Pa.C.S.A. § 4910(1).
7
18 Pa.C.S.A. §§ 901(a), 2501.
8
18 Pa.C.S.A. § 2702.1(a).
9
18 Pa.C.S.A. § 2705.
10
18 Pa.C.S.A. § 3925(a).
11
18 Pa.C.S.A. § 2702(a)(3).
12
18 Pa.C.S.A. § 5104.
13
75 Pa.C.S.A. § 3743(a).

-3-
J-S04023-15

Commonwealth requested that the sentences at cases 12173 and 8642 run

concurrently with the sentence at case 8568. After the completion of a pre-

sentence investigation report (“PSI”), on September 4, 2014, Appellant was

sentenced to an aggregate term of 39 to 78 years’ imprisonment.14 When

calculating the sentencing guidelines range for Appellant, the trial court used

prior juvenile adjudications to arrive at a prior record score of five.

Specifically, Appellant received a four-point enhancement of his prior record

score for a juvenile aggravated assault adjudication together with a one-

point enhancement for a juvenile adjudication involving the carrying of a

firearm without a license.

On September 15, 2014, Appellant filed a post-sentence motion.15 On

December 12, 2014, the trial court denied Appellant’s post-sentence motion.

____________________________________________

14
The aggregate sentence included 10 to 20 years for attempted homicide,
20 to 40 years for assault of a law enforcement officer, 1 to 2 years for
recklessly endangering another person, 3½ to 7 years for carrying a firearm
without a license, 2½ to 5 years for receiving stolen property, and 2 to 4
years for possession of a firearm by a prohibited person. In accordance with
Appellant’s plea agreement, these sentences were imposed at case 8568,
while punishments for the offenses charged at cases 12179 and 8642 were
ordered to run concurrently to case 8568.
15
The motion was timely as September 14, 2014 fell on a Sunday. See
Pa.R.Crim.P. 203(A).

-4-
J-S04023-15

On January 14, 2015, the trial court reinstated Appellant’s direct appeal

rights nunc pro tunc. This appeal followed.16

Appellant presents two issues for our review:

1. Whether the application of juvenile offenses for the purpose[] of
calculating a defendant’s prior record score is unconstitutional
because it violates the proportionality principles of the Eighth
Amendment[?]

2. Whether the trial court abused its discretion by imposing a
manifestly excessive sentence when it sentenced the Appellant
to an aggregate period of incarceration of not less than 39 and
not more than 78 years where his entire prior criminal history
was composed [] of juvenile offenses?

Appellant’s Brief at 4.17

Appellant argues that the use of juvenile adjudications when

calculating prior record scores violates the Eighth Amendment to the United

States Constitution as incorporated by the Fourteenth Amendment.18 We

note that

____________________________________________

16
On January 28, 2015, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On February 3, 2015, Appellant filed his concise
statement. On April 23, 2015, the trial court issued its Rule 1925(a)
opinion. Both issues raised on appeal were included in Appellant’s concise
statement.
17
We have re-numbered the issues for ease of disposition.
18
Appellant also argues that such use violates Article 1, § 13 of
Pennsylvania’s Constitution. “The Pennsylvania prohibition against cruel and
unusual punishment is coextensive with the Eighth and Fourteenth
Amendment of the United States Constitution.” Commonwealth v.
Yasipour, 957 A.2d 734, 743 (Pa. Super. 2008), appeal denied, 980 A.2d
(Footnote Continued Next Page)

-5-
J-S04023-15

[a]lthough the [Pennsylvania Commission on Sentencing], rather
than the General Assembly itself, directly adopts the
[s]entencing [g]uidelines [] and thus they are not statutes per
se, the [g]uidelines nevertheless retain a legislative character, as
the General Assembly may reject them in their entirety prior to
their taking effect, subject, of course, to gubernatorial review.

Commonwealth. v. Hackenberger, 836 A.2d 2, 4 n.9 (Pa. 2003)

(citations omitted). Thus, we review the constitutionality of a sentencing

guideline in the same manner that we review the constitutionality of a

statute.

As the review of the constitutionality of a sentencing guideline raises a

pure question of law, our standard of review is de novo and our scope of

review is plenary. See Commonwealth v. Hopkins, 117 A.3d 247, 255

(Pa. 2015) (citation omitted). We presume that, in promulgating the

sentencing guidelines, the Pennsylvania Commission on Sentencing and the

General Assembly did not intend to violate the Constitution. See 1 Pa.C.S.A.

§ 1922(3). A sentencing guideline will not be declared unconstitutional

“unless it clearly, palpably and plainly violates the Constitution[.]”

Commonwealth v. Hitcho, 123 A.3d 731, 756-757 (Pa. 2015) (citation

omitted).

The Eighth Amendment provides that, “Excessive bail shall not be

required, nor excessive fines imposed, nor cruel and unusual punishments

_______________________
(Footnote Continued)

111 (Pa. 2009) (citation omitted). Therefore, we do not conduct a separate
analysis of Appellant’s state constitutional claim.

-6-
J-S04023-15

inflicted.” U.S. Const. Amend. VIII. “The concept of proportionality is

central to the Eighth Amendment. Embodied in the Constitution’s ban on

cruel and unusual punishments is the precept of justice that punishment for

crime should be graduated and proportioned to the offense.” Graham v.

Florida, 560 U.S. 48, 59 (2010) (internal quotation marks, alteration, and

citation omitted). Nonetheless, “[t]he Eighth Amendment does not require

strict proportionality between crime and sentence. Rather, it forbids only

extreme sentences that are grossly disproportionate to the crime.”

Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (internal quotation

marks and citation omitted).

The Supreme Court of the United States developed a strand of

precedent which “has adopted categorical bans on sentencing practices

based on mismatches between the culpability of a class of offenders and the

severity of a penalty.” Miller v. Alabama, 132 S.Ct. 2455, 2463 (2012).

Based upon Appellant’s brief, it is clear that he is seeking to invoke this line

of precedent. He argues there should be a categorical rule against using

prior juvenile adjudications when calculating a defendant’s prior record

score. See Appellant’s Brief at 29. Appellant cites several factors in arguing

against the use of juvenile adjudications in the calculation of prior record

scores: (1) the failure of the sentencing guidelines to account for a youthful

defendant’s diminished culpability; (2) the failure of the sentencing

guidelines to consider philosophical differences between the juvenile justice

-7-
J-S04023-15

system and the criminal justice system; and (3) the absence of trial by jury

in the juvenile justice system.

When evaluating such a challenge we must first consider “objective

indicia of society’s standards, as expressed in pertinent legislative

enactments and state practice[.]” Roper v. Simmons, 543 U.S. 551, 563

(2005). “Next, guided by the standards elaborated by controlling precedents

and by [our] own understanding and interpretation of the Eighth

Amendment’s text, history, meaning, and purpose, [we] must determine in

the exercise of [our] own independent judgment whether the punishment in

question violates the Constitution.” Graham, 560 U.S. at 61 (internal

quotation marks and citations omitted).

The sentencing guideline challenged by Appellant provides as follows:

(a) Juvenile adjudication criteria. Prior juvenile adjudications are
counted in the [p]rior [r]ecord [s]core when the following criteria
are met:

(1) The juvenile offense occurred on or after the offender’s 14th
birthday, and

(2) There was an express finding by the juvenile court that the
adjudication was for a felony or one of the [first-degree
m]isdemeanor [] offenses listed in § 303.7(a)(4).

(b) Only the most serious juvenile adjudication of each prior
disposition is counted in the [p]rior [r]ecord [s]core. No other
prior juvenile adjudication shall be counted in the [p]rior
[r]ecord [s]core.

(c) Lapsing of juvenile adjudications. Prior juvenile
adjudications for four point offenses listed in § 303.7(a)(1) shall
always be included in the [p]rior [r]ecord [s]core, provided the
criteria in subsection (a) above are met:

-8-
J-S04023-15

(1) All other juvenile adjudications not identified above in
subsection (a) lapse and shall not be counted in the [p]rior
[r]ecord [s]core if:

(i) The offender was 28 years of age or older at the time the
current offense was committed; and

(ii) The offender remained crime-free during the ten-year
period immediately preceding the offender’s 28th birthday.

(iii) Crime-free. Included in the definition of crime-free is any
summary offense and/or one misdemeanor offense with a
statutory maximum of one year or less.

(2) Nothing in this section shall prevent the court from
considering lapsed prior adjudications at the time of sentencing.

204 Pa.Code § 303.6. As noted above, pursuant to this section, Appellant

had a prior record score of five – all resulting from juvenile adjudications.

Appellant relies on Roper, Graham, and Miller19 to argue that juvenile

adjudications must be treated differently than adult convictions when

calculating a prior record score. Neither this Court nor our Supreme Court

____________________________________________

19
After this case was submitted, the Supreme Court of the United States
decided Montgomery v. Louisiana, 2016 WL 280758 (U.S. Jan. 25, 2016),
which held that Miller announced a new substantive constitutional rule. Id.
at *11-16. Although Montgomery arguably expands Miller, see id. at *24
(Scalia, J. dissenting), such expansion is not relevant to the disposition of
the case sub judice as Montgomery, like Miller, addressed the situation
where a defendant was sentenced to life imprisonment without the
possibility of parole for a crime committed while he was a juvenile.

-9-
J-S04023-15

has considered whether section 303.6 violates the proportionality principles

of the Eighth Amendment.20

As noted above, when considering Appellant’s proportionality challenge

we must first consider “objective indicia of society’s standards, as expressed

in pertinent legislative enactments and state practice[.]” Roper, 543 U.S. at

563. We agree with the United States Court of Appeals for the Tenth Circuit

that “states have not reached a meaningful consensus regarding the manner

in which juvenile adjudications may be considered in adult sentencing

proceedings.” United States v. Orona, 724 F.3d 1297, 1301-1302 (10th

____________________________________________

20
We note that our Supreme Court recently decided Commonwealth v.
Hale, 2015 WL 9284110 (Pa. Dec. 21, 2015) in which it considered whether
a juvenile delinquency adjudication qualifies as a “conviction” for purposes of
grading within a particularized sentencing regime. Specifically, our Supreme
Court considered whether Hale could be sentenced under 18 Pa.C.S.A.
§ 6501(a.1)(1) which elevates the sentence for a defendant convicted of
persons not to possess a firearm from a misdemeanor to a felony if the
defendant were previously “convicted” of certain crimes. Our Supreme
Court held that a juvenile adjudication for conduct amounting to an
aggravated assault was not a “conviction” which would elevate Hale’s
persons not to possess a firearm conviction to a felony under section
6501(a.1)(1). In its opinion, our Supreme Court concluded that section
6501 expressly distinguishes between convictions and juvenile adjudications
in determining the grading of the offense; hence, “[s]ection 6015 presents a
context in which the legislative admonition that an adjudication ‘is not a
conviction’ should be respected.” Hale, 2015 WL 9284110 at *3. Although
its focus was not on section 303.6 of the sentencing guidelines, the Hale
Court noted “juvenile adjudications retain their relevance to discretionary
sentencing determinations precisely because their consideration is expressly
provided for in the Sentencing Guidelines.” Id., citing 204 Pa.Code
§ 303.6(a).

- 10 -
J-S04023-15

Cir. 2013).21 “Two states treat juvenile adjudications as convictions for

purposes of broadly applicable habitual offender statutes.” Id. at 1302

(citations omitted). In addition to Pennsylvania, at least 16 “other[ states]

allow prior juvenile adjudications to enhance a sentence in at least some

circumstances.” Id. (citations omitted). “At least [23] additional states

permit the sentencing court to consider prior juvenile adjudications in

selecting a sentence within a statutory range.” Id. at 1304 (citations

omitted).22 Combined, at least 42 states permit the use of juvenile

adjudications during adult sentencing proceedings. Thus, the objective

indicia of society’s standards indicate that section 303.6’s use of prior

juvenile adjudications when calculating a defendant’s prior record score

constitutes neither cruel nor unusual punishment.

Next, we turn to our own independent review of the Eighth

Amendment’s prohibition against cruel and unusual punishment so as to

determine in the exercise of our independent judgment whether the

sentencing guideline in question violates the Constitution.

Without triggering Eighth Amendment or due process concerns, federal

courts of appeals have held that a prior juvenile adjudication can be used to
____________________________________________

21
We reviewed the Tenth Circuit’s citations and find that, but for one citation
change, that court’s opinion continues to reflect accurately the state of the
law today.
22
We note that many of these jurisdictions have adopted variations of
section 33(b) of the Uniform Juvenile Court Act of 1968.

- 11 -
J-S04023-15

raise a mandatory minimum and/or maximum sentence. See United

States v. Hunter, 735 F.3d 172, 176 (4th Cir. 2013); Orona, 724 F.3d at

1309-1310; United States v. Hoffman, 710 F.3d 1228, 1233 (11th Cir.

2013) (per curiam); United States v. Banks, 679 F.3d 505, 507-508 (6th

Cir. 2012); United States v. Scott, 610 F.3d 1009, 1018 (8th Cir. 2010);

United States v. Salahuddin, 509 F.3d 858, 863–864 (7th Cir. 2007);

United States v. Mays, 466 F.3d 335, 339–340 (5th Cir. 2006). Sister

state courts have reached the same conclusion. See Vickers v. Delaware,

117 A.3d 516, 519-520 (Del. 2015); South Carolina v. Smith, 2015 WL

691506, *1 (S.C. Ct. App. Feb. 18, 2015) (per curiam); Counts v.

Wyoming, 338 P.3d 902, 905-906 (Wyo. 2014).

These ten cases all dealt with the use of a prior conviction to increase

a mandatory minimum and/or maximum penalty. Although this is different

from questioning the constitutionality of a sentencing guidelines range

applicable to a criminal defendant, we find the analogy helpful in our present

inquiry. It is difficult to see how the use of a juvenile adjudication to raise

the mandatory minimum and/or maximum penalty passes constitutional

muster while enhancement of advisory sentencing guidelines violates the

Eighth Amendment. Cf. Peugh v. United States, 133 S.Ct. 2072, 2087-

2088 (2013) (constitutional protections for raising mandatory minimum

and/or maximum penalty are greater than the constitutional protections for

raising an advisory sentencing guidelines range).

- 12 -
J-S04023-15

Appellant has not cited, and we are unaware of, any cases in which a

court has held that using juvenile adjudications when calculating an advisory

sentencing guidelines range violates the Eighth Amendment. In addition to

Pennsylvania’s sentencing guidelines, the United States’ sentencing

guidelines and Maryland’s sentencing guidelines use juvenile adjudications

when calculating a defendant’s prior record score.23 U.S.S.G. § 4A1.2(d);

Md. Code Regs. § 14.22.01.10(B)(2). We find persuasive the reasoning of

the United States Court of Appeals for the Ninth Circuit in United States v.

Edwards, 734 F.3d 850 (9th Cir. 2013), when dealing with an issue almost

identical to the one we confront today.

In that case, the defendant challenged United States Sentencing

Guideline § 4A1.2(d), which provides for inclusion of certain juvenile

adjudications when calculating a defendant’s criminal history score. The

Ninth Circuit “reject[ed] Edwards[’] contention and [held] that [Roper,

Graham, and Miller] do not prevent [a] court from assigning criminal

history points for juvenile [adjudications].” Edwards, 734 F.3d at 852. In

so holding, the Ninth Circuit relied on the line of cases cited above which

permits use of juvenile adjudications to raise the mandatory minimum

and/or maximum penalty. See id.
____________________________________________

23
Also, as noted above, at least three dozen other states use juvenile
adjudications in some manner when pronouncing sentence in adult criminal
proceedings.

- 13 -
J-S04023-15

Roper, Graham, and Miller all addressed the constitutionality of

sentencing a defendant for offenses committed as a juvenile.24 In this case,

Appellant was an adult when he committed the instant offenses. Thus,

Roper, Graham, and Miller are inapposite. See Commonwealth v.

Lawson, 90 A.3d 1, 6-8 (Pa. Super. 2014); Commonwealth v. Cintora,

69 A.3d 759, 764 (Pa. Super. 2013), appeal denied, 81 A.3d 75 (Pa. 2013).

Here, Appellant is being held to account for conduct and choices he made as

an adult with full knowledge of the nature and scope of his own criminal

past, including juvenile adjudications. Thus, Appellant’s contention that the

sentencing guidelines fail to recognize the lack of maturity of a youthful

offender holds little sway in the instant circumstances. Moreover, the

sentencing guidelines attempt to ensure that a defendant knows the prior

juvenile adjudications that will be used during subsequent adult sentencing

proceedings by limiting such use to those committed after he turned 14 and

that (typically) occurred within the past 14 years. 204 Pa.Code §§

303.6(a)(1), 303.6(c). They also include only the most serious adjudication

of each disposition, effectively giving the defendant a volume discount for

criminal conduct committed as a juvenile. 204 Pa.Code § 303.6(b).

____________________________________________

24
Furthermore, Roper, Graham, Miller, all dealt with the death penalty or
life imprisonment without the possibility of parole. In this case, the death
penalty and life imprisonment without the possibility of parole were not
options for the trial court. Thus, those cases are also distinguishable on that
ground.

- 14 -
J-S04023-15

Appellant also argues that using prior juvenile adjudications during

criminal justice proceedings fails to account for the difference between the

juvenile justice system and the criminal justice system. As Appellant notes,

the purposes behind the two systems are different. The juvenile justice

system focuses on principles of balanced and restorative justice; i.e., equal

concern for the public interest and the rehabilitation of the juvenile. In the

Interest of J.B., 909 A.2d 393, 402-403 (Pa. Super. 2006). On the other

hand, the criminal justice system has a wider range of objectives. Appellant

committed the instant offenses while an adult. Thus, the criminal justice

system’s purposes control. Among the purposes of the criminal justice

system is to reduce the risk of recidivism by imposing harsher punishments

upon those who have previously committed crimes, either as juveniles or

adults, and failed to conform their conduct appropriately. That purpose is

satisfied by including certain juvenile adjudications in the calculation of a

defendant’s prior record score. Thus, the Pennsylvania Commission on

Sentencing has carefully considered juveniles’ reduced culpability in

promulgating section 303.6. In so doing, it determined that an adult should

remember serious juvenile adjudications from the past 14 years and adjust

his conduct accordingly. We fail to see how such a regulatory scheme runs

afoul of Eighth Amendment concerns or principles of due process.

Appellant also argues that use of prior juvenile adjudications violates

the Eighth Amendment because such use violates his right to a trial by jury

- 15 -
J-S04023-15

and due process. He contends that the right to a jury trial, as interpreted

by Apprendi v. New Jersey, 530 U.S. 466 (2000) and its progeny,

prohibits using prior juvenile adjudications, which do not incorporate the

right to a jury trial, when calculating a prior record score. This argument

fails for two reasons.

Appellant concedes that the Supreme Court of the United States held

that trial by jury is not required in juvenile proceedings. McKeiver v.

Pennsylvania, 403 U.S. 528, 541-551 (1971) (Blackmun, J. opinion

announcing the judgment of the court);25 see Commonwealth v. Hooks,

921 A.2d 1199, 1207 (Pa. Super. 2007), appeal denied, 934 A.2d 1276 (Pa.

2007) (citation omitted) (“[D]ue process for a child in a juvenile delinquency

proceeding does not require a jury trial, which would in fact delay justice in

the juvenile proceeding and diminish the need to have it separate from the

adult criminal system.”). The Supreme Court of the United States has never

held that lack of a jury trial in juvenile proceedings violates Apprendi when

that adjudication is later used in adult criminal proceedings.

Appellant relies on United States v. Tighe, 266 F.3d 1187 (9th Cir.

2001), to support his argument that Apprendi forbids the use of prior
____________________________________________

25
Appellant argues that McKeiver is not controlling because Justice
Blackmun’s opinion did not garner a majority of the justices. The holding in
McKeiver, however, that jury trials are not required in juvenile proceedings,
did garner a majority of justices. Although the rationales offered by
members of the Court differed, we focus on the holding and not the rationale
behind that holding.

- 16 -
J-S04023-15

juvenile adjudications in calculating his prior record score. Appellant’s

reliance on Tighe, however, is misplaced. In Tighe, the defendant was

convicted of possession of a firearm by a convicted felon. Typically, this

carries with it a maximum penalty of 10 years. See 18 U.S.C. § 924(a)(2).

However, if a defendant is convicted of possession of a firearm by a

convicted felon after previously being convicted of three violent felonies

and/or serious drug offenses, the conviction carries with it a mandatory

minimum of 15 years. See 18 U.S.C. § 922(e)(1). In Tighe, one of the

three predicate offenses used to raise the mandatory minimum and

maximum penalty was a prior juvenile adjudication “for reckless

endangerment, robbery[,] and unauthorized use of a motor vehicle.” Tighe,

266 F.3d at 1191. In the case sub judice, Appellant’s prior juvenile

adjudications did not raise his mandatory minimum and/or maximum

penalty. Therefore, the use of his prior juvenile adjudications does not raise

an issue under Apprendi or Alleyne v. United States, 133 S. Ct. 2151

(2013). As noted above, the Ninth Circuit has held that a trial court may,

consistent with the Constitution, use prior juvenile adjudications to raise a

criminal history score. Edwards, 734 F.3d at 852. Thus, under the Ninth

Circuit’s own precedent, Appellant would not be entitled to relief pursuant to

Tighe.

Secondly, in relying upon the Supreme Court of the United States’

recitation of due process rights afforded to adults, the Ninth Circuit in Tighe

- 17 -
J-S04023-15

ignored the difference in due process due to juveniles and adults. As noted

above, the Supreme Court of the United States held that juries are not

necessary in juvenile adjudication hearings while juries are necessary in

criminal trials. As the Sixth Circuit stated, Appellant “received all process

that was due when convicted—for adults that includes the right to a jury

trial; for juveniles, it does not.” Crowell, 493 F.3d at 750 (citation

omitted).

Moreover, as the United States Court of Appeals for the First Circuit

stated, “the question of whether juvenile adjudications should be exempt

from Apprendi’s general rule should turn on an examination of whether

juvenile adjudications, like adult convictions, are so reliable that due process

of law is not offended by such an exemption.” United States v. Matthews,

498 F.3d 25, 35 (1st Cir. 2007) (internal alterations and citation omitted).

As juveniles have a right to due process of law, see J.D.B. v. North

Carolina, 131 S.Ct. 2394, 2408 (2011), and the Supreme Court of the

United States has held that such due process does not require a jury trial, it

naturally follows that non-jury juvenile adjudications are sufficiently reliable

to comport with the requirements of due process.

Finally, Tighe represents the minority view of courts that have

considered the issue. We agree with the majority view, espoused by the

United States Courts of Appeals for the Third, Fourth, Sixth, Eighth, and

Eleventh Circuits, along with the Supreme Courts of Kansas, Indiana, and

- 18 -
J-S04023-15

Washington, that a prior juvenile adjudication, even when the juvenile did

not have the right to a jury trial, falls within the prior conviction exception of

Almendarez–Torres v. United States, 523 U.S. 224 (1998)(prior

conviction of a felony is merely a sentencing enhancement and not an

element of the crime of illegal reentry into United States). United States v.

Wright, 594 F.3d 259, 264-265 (4th Cir. 2010); United States v. Crowell,

493 F.3d 744, 750 (6th Cir. 2007); United States v. Burge, 407 F.3d

1183, 1190 (11th Cir. 2005); United States v. Jones, 332 F.3d 688, 696

(3d Cir. 2003); United States v. Smalley, 294 F.3d 1030, 1033 (8th Cir.

2002); Washington v. Weber, 149 P.3d 646, 652-653 (Wash. 2006); Ryle

v. Indiana, 842 N.E.2d 320 (Ind. 2005); Kansas v. Hitt, 42 P.3d 732

(Kan. 2002).

For all of these reasons, our own independent evaluation indicates that

use of a juvenile adjudication in calculating an adult defendant’s prior record

score does not violate the proportionality principles of the Eighth

Amendment of the United States Constitution and Article 1, § 13 of the

Pennsylvania Constitution. Instead, we hold that section 303.6 of the

Pennsylvania Sentencing Guidelines fully complies with the Eighth

Amendment as interpreted by Roper, Graham, and Miller. Accordingly,

Appellant’s first issue on appeal is without merit.

In his second issue, Appellant argues that his sentence is excessive.

This issue challenges the discretionary aspects of Appellant’s sentence. See

- 19 -
J-S04023-15

Commonwealth v. Haynes, 125 A.3d 800, 806 (Pa. Super. 2015).

Pursuant to statute, Appellant does not have an automatic right to appeal

the discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b).

Instead, Appellant must petition this Court for permission to appeal the

discretionary aspects of his sentence. Id.

As this Court has explained, in order to reach the merits of a

discretionary aspects claim,

[w]e conduct a four-part analysis to determine: (1) whether
[the] 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 [the] 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. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (citation

omitted). Appellant filed a timely notice of appeal, preserved the issue in his

post-sentence motion, and included a Rule 2119(f) statement in his

appellate brief. Thus, we turn to whether Appellant has raised a substantial

question.

“In order to establish a substantial question, the appellant must show

actions by the trial court inconsistent with the Sentencing Code or contrary

to the fundamental norms underlying the sentencing process.”

Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa. Super. 2014)

(citation omitted). “The determination of whether a particular case raises a

substantial question is to be evaluated on a case-by-case basis.”

- 20 -
J-S04023-15

Commonwealth v. Seagraves, 103 A.3d 839, 841 (Pa. Super. 2014),

appeal denied, 116 A.3d 604 (Pa. 2015) (citation omitted).

In his Rule 2119(f) statement, Appellant argues that this appeal

presents a substantial question for two reasons. First, he argues that the

sentence was excessive because the trial court failed to consider his

rehabilitative needs. Second, he argues that the sentence is excessive

because of the consecutive nature of the sentences given in case 8568. This

Court has recently held that a “challenge to the imposition of [] consecutive

sentences as unduly excessive, together with [a] claim that the [trial] court

failed to consider [the defendant’s] rehabilitative needs upon fashioning its

sentence, presents a substantial question.” Commonwealth v. Caldwell,

117 A.3d 763, 770 (Pa. Super. 2015) (en banc), appeal denied, 2015 WL

7288526 (Pa. Nov. 16, 2015). As Appellant raises such a claim, we conclude

that he has raised a substantial question and proceed to consider the merits

of Appellant’s discretionary aspects claim.

Pursuant to statute,

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). Furthermore, when sentencing a defendant, the

trial court is required to consider the sentencing guidelines. See

Commonwealth v. Tobin, 89 A.3d 663, 669 n.4 (Pa. Super. 2014) (citation

omitted). In this case, Appellant was sentenced within the sentencing

- 21 -
J-S04023-15

guidelines. Accordingly, we may only vacate his sentence if this “case

involves circumstances where the application of the guidelines would be

clearly unreasonable[.]” 42 Pa.C.S.A. § 9781(c)(2).

Appellant contends that the trial court failed to consider his

rehabilitative needs. In support of this argument, he relies on

Commonwealth v. Simpson, 510 A.2d 760 (Pa. Super. 1986), appeal

denied, 522 A.2d 49 & 522 A.2d 1105 (Pa. 1987). Simpson, however, is

easily distinguishable from the case at bar. In Simpson, the defendant had

no prior record and had served honorably in the armed forces. Id. at 762.

Contrast that with the case at bar, where Appellant began his string of

criminal behavior at the age of 12. From then until the time he was arrested

for the instant offenses, Appellant was routinely involved in the juvenile

justice system. He continually violated the terms of his probation and other

sentences. In short, Appellant rejected his chance at rehabilitation in the

juvenile justice system. In his brief, Appellant quotes our holding in

Simpson that, “As the trial court aptly pointed out, [it] is unable to predict

the future, therefore, to the extent that we must make a judgment as to

future behavior, we cannot ignore and must be guided by the past.”

Appellant’s Brief at 19, quoting Simpson, 510 A.2d at 764.26 In Simpson,

____________________________________________

26
This language from Simpson echoes the eloquent quote of George
Santayana, “Those who cannot remember the past are condemned to repeat
(Footnote Continued Next Page)

- 22 -
J-S04023-15

that past indicated that the defendant was amenable to rehabilitation. On

the other hand, Appellant’s past demonstrates that he is not amenable to

rehabilitation.

A close examination of the sentencing transcript reveals that the trial

court discussed Appellant’s rehabilitative needs at sentencing. Although the

trial court did not use the phrase “rehabilitative needs,” the trial court

discussed the fact that Appellant’s conduct in June 2014 indicated that he

was not amenable to rehabilitation.27 See N.T., 9/4/14, at 30-31. The trial

court found that if Appellant were truly remorseful, and thus amenable to

rehabilitation, he would not have made the comments he did in June. See

id. The trial court went on to find that Appellant was not amenable to

mental health treatment that may assist him. Id. at 33. Furthermore, the

trial court expressly indicated that it had considered the PSI. Id. at 8.

“Where [a PSI] exist[s], we [] presume that the [trial court] was aware of

relevant information regarding the defendant’s character and weighed those

considerations along with mitigating statutory factors. A [PSI] constitutes

the record and speaks for itself.” Commonwealth v. Antidormi, 84 A.3d

736, 761 (Pa. Super. 2014), appeal denied, 95 A.3d 275 (Pa. 2014).

_______________________
(Footnote Continued)

it.” George Santayana, Reason in Common Sense, in THE LIFE OF REASON, p.
284 (1905).
27
In June, at his guilty plea hearing, Appellant told Officer Kertis “f[---] you,
I should have f[---]ing killed you.” N.T., 9/4/14, at 23-24.

- 23 -
J-S04023-15

Appellant cites to the injuries he suffered as a result of this incident,

his mental illness, and his upbringing as reasons why he is amenable to

rehabilitation. The trial court discussed all of these factors at sentencing. It

noted that Appellant’s injuries were his own fault as he was the one that

opened fire on police. See N.T., 9/4/14, at 34. The trial court’s review of

the record indicated that Appellant was not interested in treatment for his

mental illness.28 Id. at 32-33. The trial court stated that many defendants

with tough upbringings do not resort to the type of criminal behavior in

which Appellant was involved. Id. at 33. Thus, contrary to Appellant’s

argument, the trial court carefully considered Appellant’s rehabilitative needs

when fashioning an appropriate sentence. It determined that Appellant had

little chance of rehabilitation and, when weighed against the other statutory

factors, a lengthy prison sentence within the guidelines range was

appropriate.

Appellant also argues that the consecutive nature of his sentences

makes his sentence excessive. He argues that the mandatory minimum

sentence of 20 to 40 years’ imprisonment would be sufficient to protect the

public. The trial court determined, however, that Appellant should not

receive a volume discount for his crimes. See id. at 31. This is consistent

with the prior decisions of this Court. Commonwealth v. Swope, 123 A.3d
____________________________________________

28
The trial court also serves as the mental health court for the Allegheny
County Court of Common Pleas.

- 24 -
J-S04023-15

333, 341 (Pa. Super. 2015) (citation omitted) (“Appellant is not entitled to a

volume discount for his crimes.”); Commonwealth v. Zirkle, 107 A.3d

127, 134 (Pa. Super. 2014), appeal denied, 117 A.3d 297 (Pa. 2015).

This is not a case, like Commonwealth v. Dodge, 77 A.3d 1263 (Pa.

Super. 2013), appeal denied, 91 A.3d 161 (Pa. 2014), or Simpson, in which

Appellant was sentenced to an excessively long prison term for relatively

minor crimes. Instead, in this case Appellant received an aggregate

sentence of 39 to 78 years for serious offenses, including attempted murder

of a police officer and recklessly endangering the life of a second police

officer. It was a mere fortuity that multiple fatalities did not occur, resulting

in homicide charges. The mere fact that the crimes arose out of the same

incident does not mean that Appellant is entitled to receive concurrent

sentences. Commonwealth v. Ly, 599 A.2d 613, 623 (Pa. 1991) (citations

omitted).

The trial court carefully considered the section 9721(b) factors when

sentencing Appellant, including his rehabilitative needs. The trial court

reviewed the PSI and other information at its disposal when determining that

a lengthy prison sentence was necessary considering the gravity of the

offenses, the impact on the victims, and the need to protect the public in the

future. It therefore sentenced Appellant to consecutive terms of

imprisonment which resulted in an aggregate term of 39 to 78 years’

imprisonment. This application of the guidelines was not “clearly

- 25 -
J-S04023-15

unreasonable.” 42 Pa.C.S.A. § 9781(c)(2). Accordingly, we conclude that

the trial court did not abuse its discretion in sentencing Appellant to 39 to 78

years’ imprisonment.

In sum, we hold that section 303.6 of the Pennsylvania Sentencing

Guidelines, which includes certain juvenile adjudications in the calculation of

a defendant’s prior record score, does not violate the proportionality

principles of the Eighth Amendment. Although we reach the merits of

Appellant’s discretionary aspects claim, we ultimately conclude that his

discretionary aspects challenge is without merit. Accordingly, we affirm.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/23/2016

- 26 -