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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DESSIE LEWIS SEATON, III
Appellant No. 2009 WDA 2015
Appeal from the Judgment of Sentence December 3, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002538-2013
BEFORE: BENDER, P.J.E., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED SEPTEMBER 20, 2016
Dessie Lewis Seaton, III, appeals from the judgment of sentence
imposed on December 3, 2015, in the Erie County Court of Common Pleas,
following a remand by this Court for resentencing. A prior panel found
Seaton’s original sentence, an aggregate term of five to 12 years’
imprisonment, was unconstitutional under Alleyne v. United States, 133
S.Ct. 2151 (2013), because it included the imposition of a mandatory
minimum sentence pursuant to 18 Pa.C.S. § 7508. See Commonwealth v.
Seaton, 122 A.3d 1139 (Pa. Super. 2015) (unpublished memorandum).
Upon remand, the trial court re-imposed the same sentence, absent the
mandatory minimum, for Seaton’s jury conviction of possession with intent
to deliver (“PWID”) heroin, possession of heroin, possession of drug
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paraphernalia and criminal conspiracy.1 On appeal, Seaton challenges the
discretionary aspects of his sentence. For the reasons that follow, we affirm.
Seaton’s conviction is based upon his control of a sophisticated heroin
operation in Erie County, the details of which are aptly summarized in the
trial court’s opinion and need not be reiterated herein. See Trial Court
Opinion, 6/21/2016, at 3-6. As noted above, he was originally sentenced to
an aggregate term of five to 12 years’ imprisonment, which included a
mandatory minimum sentence imposed on his conviction of PWID pursuant
to Section 7508(a)(7)(ii).2 Seaton filed a direct appeal, raising a double
jeopardy challenge. See Seaton, supra, unpublished memorandum at 3.3
Although the panel rejected the double jeopardy claim, it vacated the
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1
35 P.S. §§ 780-113(a)(30), (a)(16), and (a)(32), and 18 Pa.C.S. § 903,
respectively.
2
See 18 Pa.C.S. § 7508(a)(7)(ii) (mandatory minimum five years’
imprisonment for possession with intent to deliver five to 50 grams of heroin
and a prior drug trafficking conviction).
3
The double jeopardy claim was based upon the fact that Seaton was
charged, under another docket number, with possession with intent to
deliver 49.9 grams of heroin seized from a vehicle on November 9, 2012.
See Docket No. 3652 of 2012. That same day, the police obtained a search
warrant for the apartment where Seaton stored the heroin that led to the
charges in the present case. See Trial Court Opinion, 8/1/2014, at 1-2.
Seaton argued his possession of the drugs in both locations “stemmed from
a single criminal act or episode.” Seaton, supra, unpublished
memorandum, at 4. However, the panel concluded the offenses “stemmed
from discrete criminal episodes, being both logically and temporally distinct.”
Id. at 9.
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judgment of sentence, sua sponte, as violative of Alleyne, and remanded
the case to the trial court for resentencing. See id. at 9-13.
Upon remand, the trial court conducted a resentencing hearing on
December 3, 2015. At the conclusion of the hearing, the court imposed the
following sentence: (1) a term of five to 12 years’ imprisonment on the
charge of PWID, which fell within the aggravated range of the sentencing
guidelines;4 (2) a concurrent term of three and on-half to seven years’
imprisonment on the charge of conspiracy; and (3) a concurrent term of
three to 12 months’ imprisonment on the charge of possession of drug
paraphernalia. The court found the charge of possession merged for
sentencing purposes, and directed that the aggregate sentence run
consecutively to the drug sentence imposed at Docket No. 3652 of 2012.
See supra n.3. Seaton filed a post-sentence motion seeking
reconsideration of his sentence. The trial court denied the motion on
December 9, 2015, and this timely appeal followed.5
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4
Seaton’s conviction of PWID called for a standard range sentence of 42 to
54 months’ imprisonment, with an aggravated term of 66 months’
imprisonment. See Guidelines Sentence Form, 12/3/2015.
5
On December 23, 2015, the trial court ordered Seaton to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Seaton complied with the court’s directive, and filed a concise statement on
December 30, 2015.
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Seaton’s sole claim on appeal is a challenge to the discretionary
aspects of his sentence. Specifically, he contends the sentence imposed was
“manifestly excessive and clearly unreasonable.” Seaton’s Brief at 5.
Seaton argues the trial court failed to individualize his sentence when it
imposed “the exact same sentence upon resentencing” and failed to consider
his “accomplishments while in prison and … his heartfelt indication that he
had learned from this experience.” Id. at 4, 8. Moreover, he asserts the
trial court “double counted” his prior record by considering it “heavily” when
determining his sentence. Id. at 4.
Preliminarily, we note “[a] challenge to the discretionary aspects of a
sentence must be considered a petition for permission to appeal, as the right
to pursue such a claim is not absolute.” Commonwealth v. Hoch, 936
A.2d 515, 518 (Pa. Super. 2007) (citation omitted). Accordingly, to reach
the merits of a discretionary issue, this Court must 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; and
(4) whether the concise statement raises a substantial question
that the sentence is appropriate under the sentencing code.
Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)
(citation omitted), appeal denied, 81 A.3d 75 (Pa. 2013).
Seaton complied with the procedural requirements for this appeal by
filing a timely post-sentence motion for modification of sentence, and
subsequent notice of appeal, and by including in his appellate brief a
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statement of reasons relied upon for appeal pursuant to Commonwealth v.
Tuladziecki, 522 A.2d 17 (Pa. 1987), and Pa.R.A.P. 2119(f). Therefore, we
must determine whether he raised a substantial question justifying our
review.
A substantial question exists when an appellant sets forth “a colorable
argument that the sentence imposed is either inconsistent with a specific
provision of the Sentencing Code or is contrary to the fundamental norms
underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d
1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)
(citation omitted). To the extent Seaton argues the trial court imposed a
manifestly excessive sentence when it failed to consider his
accomplishments in prison, we find that this claim raises a substantial
question. See Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa.
Super. 2015), appeal denied, 125 A.3d 1198 (Pa. 2015) (finding defendant
presented a substantial question when he raised an “excessive sentence
claim[ ] in conjunction with an assertion that the court did not consider
mitigating factors.”) (citation omitted). Furthermore, Seaton’s claims that
the court failed to impose an individualized sentence and improperly
“double-counted” his prior record also raise substantial questions for our
review. See Commonwealth v. Walls, 926 A.2d 957, 966 (Pa. 2007)
(“Pennsylvania’s sentencing system, as evidenced by the Sentencing Code
and our case law, is based upon individualized sentencing.”);
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Commonwealth v. Robinson, 931 A.2d 15, 27 (Pa. Super. 2007) (en
banc) (claim that trial court “imposed a manifestly excessive sentence … by
impermissibly double-counting factors that are already incorporated into the
guidelines” raises a substantial question). Accordingly, we proceed to an
examination of Seaton’s argument on appeal.
When considering a challenge to the discretionary aspects of
sentencing, we must bear in mind the following:
Sentencing is a matter vested in the sound discretion of the
judge, and will not be disturbed on appeal absent a manifest
abuse of discretion. 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. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation
omitted), appeal denied, 980 A.2d 607 (Pa. 2009).
Our review of the trial court’s opinion, as well as the resentencing
hearing transcript, reveals no abuse of discretion on the part of the trial
court. Indeed, the court provided a lengthy explanation for the sentence
imposed, in which it focused on “the level of sophistication of [Seaton’s]
drug operation.” Trial Court Opinion, 1/21/2016, at 11. The court stated:
[Seaton’s] conviction is based off of a complex, interstate drug
operation involving a hierarchical chain of command, with
[Seaton] at the top, three mid-level operatives who would travel
[from] Detroit to Erie and keep the heroin at the Granada
Apartments, and a number of low-level distributors, often
addicts themselves …, who would sell the heroin to others and
be paid for in doses of heroin.
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Id. Moreover, the court emphasized “this entire operation was set up under
[Seaton’s] direction within three months of termination of state supervision
in the state of Michigan.” Id. Indeed, the trial court’s focus on Seaton’s
prior conviction was with regard to the short time period between the end of
his supervision in Michigan and the charges in the present case. See id. at
10. In this context, we find the court did not “double count” Seaton’s prior
record.
Pursuant to Section 9721(b) of the Sentencing Code, a trial court
should impose an individualized sentence, taking into consideration the
following factors:
[T]he 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. § 9721(b). Here, it is evident the court did so. As the trial court
explained in its opinion:
In summary, [Seaton’s] sentence was placed in the aggravated
range for the following reasons: the level of sophistication of
[Seaton’s] drug operation; his history of dealing in varying
Schedule I controlled substances; the particularly grievous
effects Schedule I controlled substances, specifically heroin, and
[Seaton’s] distribution of heroin have had on the Erie
Community; and the fact that [Seaton] was charged with the
instant offenses within three months of state supervision in the
state of Michigan.
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Trial Court Opinion, 1/21/2016, at 13. The court’s considerations amply
support the imposition of a sentence in the aggravated range of the
guidelines.
Lastly, although Seaton asserts the trial court should have considered
his accomplishments and good conduct in prison as mitigating factors, he
fails to demonstrate that the court abused its discretion. Indeed, the trial
court found that Seaton’s “accomplishments and positive adjustment [were]
considerations for parole” and “not necessarily relevant” for purposes of his
resentencing. Id. at 7. Seaton fails to provide this Court with any authority
to the contrary. Accordingly, no relief is warranted.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/20/2016
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