J-A12029-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JONATHAN W. ANDERSON,
Appellant No. 2671 EDA 2015
Appeal from the Judgment of Sentence July 10, 2015
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-0000450-2015
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS,* P.J.E.
MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 27, 2016
Appellant, Jonathan W. Anderson, appeals from the judgment of
sentence entered by the Honorable F.P. Kimberly McFadden, Northampton
County Court of Common Pleas. We affirm.
The relevant facts and procedural history are as follows. On August 14,
2014, Anderson was driving a vehicle in Williams Township, Northampton
County, while high on morphine. Anderson allowed his vehicle to drift from
the roadway and struck Nicholas Brutts, a young man who had been walking
on the side of the road with a friend. Ultimately, Brutts died from the injuries
caused by Anderson’s actions.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-A12029-16
Anderson was charged with twelve offenses, including homicide by
vehicle while driving under the influence,1 homicide by vehicle,2 and
involuntary manslaughter.3 On May 14, 2015, Anderson entered an “open”
guilty plea4 to homicide by vehicle while driving under the influence, driving
under the influence of a controlled substance,5 possession of drug
paraphernalia,6 and recklessly endangering another person.7
Following Anderson’s guilty plea to the above-mentioned charges, the
trial court imposed an aggregate term of 60 to 155 months’ imprisonment,
consisting of 48 to 120 months for homicide by vehicle while driving under
the influence, 6 to 23 months of consecutive imprisonment for recklessly
endangering another person, and 6 to 12 months of consecutive
imprisonment for possession of drug paraphernalia. The trial court found
that driving under the influence of a controlled substance merged with
homicide by vehicle while driving under the influence for sentencing
____________________________________________
1
75 Pa.C.S. § 3735(a).
2
75 Pa.C.S. § 3732(a).
3
18 Pa.C.S. § 2540(a).
4
An “open” plea agreement does not include a negotiated sentence. See
Commonwealth v. Vega, 850 A.2d 1277, 1280 (Pa. Super. 2004).
5
75 Pa.C.S. § 3802(d)(2).
6
35 Pa.C.S. § 780-113(a)(32).
7
18 Pa.C.S. § 2705.
-2-
J-A12029-16
purposes. Anderson filed a post-sentence motion, which the trial court
denied. This timely appeal followed.
On appeal, Anderson’s challenges the discretionary aspects of his
sentence.8 Anderson argues that the sentence imposed by the trial court was
manifestly unreasonable. To do so, Anderson relies upon two arguments. 9
First, Anderson argues that the trial court abused its discretion by
sentencing him to aggravated range sentences and running the sentences
consecutively. See Appellant’s Brief, at 7. Second, Anderson argues that the
sentence imposed was improper because the trial court imposed a sentence
outside the standard range without offering adequate reasons for the
sentence. See id. Anderson concedes that both arguments constitute
challenges to the discretionary aspects of his sentence. See id.
Anderson preserved his argument concerning the discretionary aspects
of his sentence through a post-sentence motion. Thus, he is in technical
____________________________________________
8
The “open” guilty plea permits Anderson to challenge the discretionary
aspects of his sentence. See Commonwealth v. Tirado, 870 A.2d 362, 365
n.5 (Pa. Super. 2005).
9
Throughout his brief, Anderson raises additional arguments to challenge
the discretionary aspects of his sentence. Specifically, Anderson argues that
the trial court improperly relied upon factors that are elements of the
charged offenses, failed to consider mitigating factors, and failed to issue a
contemporaneous written statement to support its sentence. See Appellant’s
Brief, at 10-11. However, because Anderson failed to raise these specific
arguments in his 2119(f) statement, he has waived them on appeal. See
Pa.R.A.P. 2119(f); Commonwealth v. Shugars, 895 A.2d 1270, 1273 (Pa.
Super. 2006).
-3-
J-A12029-16
compliance with the requirements to challenge the discretionary aspects of
his sentence. “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. McAfee, 849 A.2d 270, 274
(Pa. Super. 2004) (citation omitted). “Two requirements must be met before
we will review this challenge on its merits.” Id. (citation omitted).
“First, 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.” Id. (citation omitted). “Second, the
appellant must show that there is a substantial question that the sentence
imposed is not appropriate under the Sentencing Code.” Id. (citation
omitted). That is, “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.” Tirado, 870 A.2d at
365 (citation omitted).
We examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists. See id. “Our inquiry must focus on
the reasons for which the appeal is sought, in contrast to the facts
underlying the appeal, which are necessary only to decide the appeal on the
merits.” Id. (citation omitted); see also Pa.R.A.P. 2119(f). In the present
case, Anderson’s appellate brief contains the requisite Rule 2119(f) concise
statement.
-4-
J-A12029-16
First, Anderson contends in his Rule 2119(f) statement that the trial
court abused its discretion by sentencing him in the aggravated range and
running the sentences consecutively, creating a manifestly unreasonable
sentence. Essentially, through this argument, Anderson is objecting to the
consecutive nature of his sentence.
“Although Pennsylvania’s system stands for individualized sentencing,
the court is not required to impose the ‘minimum possible’ confinement.”
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (citation
omitted). The sentencing court “has the discretion to impose sentences
consecutively or concurrently and, ordinarily, a challenge to this exercise of
discretion does not raise a substantial question.” Id. (citation omitted); see
also 42 Pa.C.S.A. § 9721(a); Commonwealth v. Hoag, 665 A.2d 1212,
1214 (Pa. Super. 1995) (stating that an appellant is not entitled to a
“volume discount” for his crimes by having all sentences run concurrently).
“The imposition of consecutive, rather than concurrent, sentences may raise
a substantial question in only the most extreme circumstances, such as
where the aggregate sentence is unduly harsh, considering the nature of the
crimes and the length of imprisonment.” Moury, 992 A.2d at 171-72
(citation omitted).
An “extreme circumstance” is not present here. The trial court acted
well within its discretion in imposing consecutive sentences. Additionally,
Anderson was charged with the offenses of homicide by vehicle while driving
under the influence and recklessly endangering another person as a result of
-5-
J-A12029-16
his actions in relation to two different victims, running these sentences
concurrently would allow Anderson a “volume discount” for his crimes. See
Hoag, 665 A.2d at 1214. Given Anderson’s history of failed attempts at
rehabilitation, and the extreme emotional harm that Anderson inflicted on
his victim’s family, we find no abuse of discretion with the trial court’s
conclusion that a sentence of 60 to 155 months’ imprisonment is reasonable
and not excessive. Accordingly, Anderson’s first challenge to the
discretionary aspects of his sentence is without merit; it does not even raise
a substantial question for our review.
Finally, Anderson argues in his Rule 2119(f) statement that the trial
court abused its discretion by imposing a sentence outside of the standard
range of the sentencing guidelines without a meaningful consideration of the
statutory factors. Anderson cites Commonwealth v. Goggins, 748 A.2d
721 (Pa. Super. 2000), for the proposition that imposing a sentence outside
of the standard range of the sentencing guidelines without stating adequate
reasons raises a substantial question for appellate review. See Appellant’s
Brief, at 7. However, Anderson’s belief that Goggins stands for this
proposition is simply wrong. Goggins elucidates that a sentence imposed
outside of the guideline ranges, which includes both standard range and
mitigated/aggravated range sentences, imposed without specifying sufficient
reasons presents a substantial question for review. See Goggins, 748 A.2d
at 728. Here, Anderson’s sentences for possession of drug paraphernalia
and recklessly endangering another person do fall outside of the guideline
-6-
J-A12029-16
ranges. Therefore, despite Anderson’s misunderstanding of the holding in
Goggins, we find that Anderson presented a substantial question for review.
Our standard of review of a challenge to the discretionary aspects of
sentencing is well-settled.
[s]entencing 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. Anderson, 830 A.2d 1013, 1018 (Pa. Super. 2003)
(quotation omitted).
In imposing a sentence, the sentencing court must consider relevant
statutory factors, including “the protection of the public, gravity of an
offense in relation to impact on victim and community, and rehabilitative
needs of the defendant.” 42 Pa.C.S.A. § 9721(b). A sentencing court has
broad discretion in fashioning its sentence. See Commonwealth v. Walls,
926 A.2d 957, 962-63 (Pa. 2007). While the court is required to consider the
sentence ranges set forth in the sentencing guidelines, it is not bound by
them. See Commonwealth v. Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007).
The sentencing court may depart 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
-7-
J-A12029-16
offense as it related to the impact on the life of the victim and the
community.” Commonwealth v. Eby, 784 A.2d 204, 206 (Pa. Super.
2001).
Initially, we note that the trial court reviewed the pre-sentence
investigation report. See N.T., Sentencing, 7/10/15 at 3. Where the trial
court had the benefit of reviewing a pre-sentence investigation report, we
must
presume that the sentencing judge was aware of relevant
information regarding the defendant’s character and weighed
those consideration along with mitigating statutory factors. A
pre-sentence report constitutes the record and speaks for itself.
In order to dispel any lingering doubt as to our intention of
engaging in an effort of legal publication, we state clearly that
sentencers are under no compulsion to employ checklists or any
extended or systematic definitions of their punishment
procedure. Having been fully informed by the pre-sentence
report, the sentencing court’s discretion should not be disturbed.
This is particularly true, we repeat, in those circumstances where
it can be demonstrated that the judge had any degree of
awareness of the sentencing considerations, and there we will
presume also that the weighing process took place in a
meaningful fashion. It would be foolish, indeed, to take the
position that if a court is in possession of the facts, it will fail to
apply them to the case at hand.
Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citing
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)). As the trial court
in this case had the benefit of a pre-sentence report, we must presume that
it considered all relevant sentencing factors and did not impose an
unreasonable sentence.
-8-
J-A12029-16
Further, after review of the trial court’s statements at sentencing, we
are satisfied that the trial court relied upon the proper factors and
adequately stated its reasons for imposing sentence. During its exchange
with Anderson, the sentencing court noted: (1) Anderson’s history of drug
and alcohol use and addiction; (2) Anderson’s multiple prior attempts at
rehabilitation; (3) Anderson’s age and family background; (4) the substantial
effect Anderson’s actions had on Brutts’ family and the community; (5) the
need to protect the public; and (6) Anderson’s need for drug rehabilitation.
See N.T. Sentencing, 7/10/15 at 4-8, 10, 18, 19-24. Our analysis of the
sentencing court’s statements persuades us that the court carefully weighed
all of the relevant statutory factors, and determined that a departure from
the statutory guidelines was necessary. Further, it is clear that the court
relied upon permissible reasons for deviating from the guidelines ranges,
including the seriousness of the crime, Anderson’s need for rehabilitation,
and the impact upon the victim and the community. See Eby, 784 A.2d at
206. Therefore, we find that Anderson’s final challenge to the discretionary
aspects of his sentence merits no relief.
Judgment of sentence affirmed.
-9-
J-A12029-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/27/2016
- 10 -