J-A33031-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ARTHUR PHILLIPS, :
:
Appellant : No. 767 WDA 2016
Appeal from the Judgment of Sentence April 21, 2016,
In the Court of Common Pleas of Allegheny County,
Criminal Division, at No(s): CP-02-CR-0002048-2013
BEFORE: LAZARUS, SOLANO, and STRASSBURGER, JJ.*
MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 31, 2017
Arthur Phillips (Appellant) appeals from the judgment of sentence
entered on April 21, 2016, following a resentencing hearing pursuant to this
Court’s opinion remanding Appellant’s case for resentencing.1 Upon review,
we affirm.
The trial court summarized the pertinent factual and procedural history
underlying Appellant’s case as follows.
[Appellant] proceeded to a jury trial on February 20, 2014,
February 21, 2014[,] and February 24, 2014, after which he was
convicted of robbery, aggravated assault, criminal conspiracy
and flight to avoid apprehension. [The trial court] imposed a
term of imprisonment of not less than 10 nor more than 20
years relative to the conviction of robbery. [Appellant] received
a consecutive term of not less than 2 years nor more than 4
years relative to the conviction for aggravated assault.
[Appellant] received a consecutive term of not less than 1 year
nor more than 2 years relative to the conviction for criminal
1
Commonwealth v. Phillips, 129 A.3d 513 (Pa. Super. 2015).
*Retired Senior Judge assigned to the Superior Court.
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conspiracy[. Appellant] received a sentence of not less than 1
year nor more than 2 years relative to the conviction for flight to
avoid apprehension, consecutive to all preceding sentences. The
aggregate sentence of imprisonment imposed on [Appellant] was
not less than 14 years nor more than 28 years. A timely appeal
followed.
[Appellant] raised a number of issues on appeal. [Through
an opinion dated December 14, 2015,] the Superior Court
reversed [Appellant’s] conviction for flight to avoid apprehension
and remanded the case for resentencing.
Upon resentencing, [the trial court] sentenced [Appellant]
to a term of imprisonment of not less than 10 nor more than 20
years relative to the conviction of robbery. [Appellant] received
a consecutive term of not less than one year nor more than two
years relative to the conviction of aggravated assault. No
further penalty was imposed relative to the conviction for
criminal conspiracy. The aggregate sentence of imprisonment
was not less than 11 years nor more than 22 years.
Trial Court Opinion, 6/22/2016, at 1-2 (unnecessary capitalization omitted).
Appellant filed a post-sentence motion arguing that the trial court
failed to provide sufficient reasons for Appellant’s sentence at count 1,
robbery, and double counted factors already subsumed in the guidelines.
Post-Sentence Motions, 4/27/2016, at 5 (unnumbered). Appellant also
averred that he had made “rehabilitative progress” since being incarcerated,
and cited several mitigating factors, which Appellant argued warranted a
reduction in his sentence. Id. at 3-5 (unnumbered). That motion was
denied. This appeal followed, wherein Appellant’s sole issue challenges the
discretionary aspects of his sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant
challenging the discretionary aspects of his [or her] sentence
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must invoke this Court’s jurisdiction by satisfying a four-part
test:
We conduct a four-part analysis to determine: (1) whether
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
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.[] § 9781(b).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some
citations omitted).
Here, Appellant timely filed a post-sentence motion in which he
requested a modification of his sentence, as well as a timely notice of
appeal. Additionally, Appellant included a 2119(f) statement in his brief.
However, before reaching the merits of the issues Appellant raised, we must
first examine if the issues presented were properly preserved. “Objections
to the discretionary aspects of a sentence are generally waived if they are
not raised at the sentencing hearing or in a motion to modify the sentence
imposed.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013).
Appellant’s 2119(f) statement set forth the following issues: (1) the
trial court erred in failing to provide a contemporaneous written statement to
justify Appellant’s sentence to count 1, robbery, which exceeded the
aggravated range, and failed to recite Appellant’ sentencing guidelines,
which is required when sentencing Appellant outside the guidelines, and (2)
the trial court erred by double counting the gravity of the offense,
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Appellant’s criminal history, and his use of deadly weapon during the
commission of the crime. Appellant’s Brief at 14-16.
Upon review, Appellant’s first issue is not in his post-sentence motion.
Nor did, Appellant raise this issue at his sentencing hearing. Therefore,
Appellant has not preserved this issue, and it is waived. Commonwealth v.
Tejada, 107 A.3d 788, 799 (Pa. Super. 2015) (holding discretionary aspects
claims not raised at sentencing or in a post-sentence motion are not subject
to our review, even if raised in 1925(b) statement and addressed in the trial
court’s 1925(a) opinion).
Even if we were to address the merits of his claim, Appellant would not
be entitled to relief. First, Appellant is correct that 42 Pa.C.S. § 9721(b),
requires the trial court to issue a written contemporaneous statement
justifying the imposition of a sentence outside the guideline range. This
Court has held that a “judge’s statement of reasons for the sentence made
of record at sentencing in the defendant’s presence constitutes a
‘contemporaneous written statement,’ within the meaning of the act.”
Commonwealth v. Royer, 476 A.2d 453, 457 (Pa. Super. 1984). Here,
the record is clear that the trial court set forth its reasons for sentencing
Appellant on the record at Appellant’s resentencing hearing. Furthermore,
Appellant acknowledges that the trial court set forth reasons on the record
for sentencing Appellant outside the guideline range, since the trial court’s
reasoning is an integral part of Appellant’s first argument, namely that the
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trial court’s reasoning amounted to double counting of factors already taken
into consideration in the guidelines. Appellant’s Brief at 20-23.
Furthermore, Appellant has failed to provide this Court with any case
law to support his argument that a trial court, upon resentencing, must
again reiterate the sentencing guidelines. Not only has Appellant failed to
convince this Court that an error was made, we note that
while we continue to suggest that “prior to sentencing outside
the guidelines, [the trial court] would do well to specifically
articulate the guideline range of sentences,” we recognize that
such a recitation is not uniformly necessary to establish “that the
court was aware of, and considered, the guidelines[.]”
Accordingly, we hold that when imposing sentence, a trial court
has rendered a proper “contemporaneous statement” under
section 9721(b) of the Sentencing Code, so long as the record
demonstrates with clarity that the court considered the
sentencing guidelines in a rational and systematic way and made
a dispassionate decision to depart from them.
Commonwealth v. Rodda, 723 A.2d 212, 216 (Pa. Super. 1999) (citations
and quotations omitted).
We now consider Appellant’s remaining argument. He argues that the
trial court double counted factors already subsumed in the guidelines. The
Commonwealth concedes that Appellant’s issue raises a substantial question
for our review. See Commonwealth v. Goggins, 748 A.2d 721, 732 (Pa.
Super. 2000) (“When fashioning a sentence, a sentencing court may not
‘double count’ factors already taken into account in the sentencing
guidelines.”). See also Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa.
Super. 2005) (finding appellant raised a substantial question for the Court’s
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review when claiming that the trial court “considered factors already
included in the guidelines”).
Appellant contends that the trial court erred “by strictly relying on
factors already taken into account by the sentencing guidelines to justify its
sentence.” Appellant’s Brief at 16. Specifically, Appellant argues the trial
court “relied on [Appellant’s] prior criminal history and the gravity of the
offense as the sole bases for its sentence.” Id. at 20. Appellant avers that
the trial court’s reliance on these factors, as well as Appellant’s use of an
AK-47 during the commission of the home invasion, which had already
elevated Appellant’s guidelines under the deadly weapon enhancement, was
an abuse of discretion.
The trial court provided the following analysis.
The sentencing record reflects that [the trial court]
considered the presentence report [(PSI)], the testimony
presented at trial and at resentencing and all other relevant
factors.1 [Appellant] did not object to the substance of
information contained in the [PSI]. The sentencing record
reflects that in imposing the sentence [the trial court] considered
that [Appellant’s] conduct in this case was very violent. [The
trial court] considered the impact on the victim, Mr. Sharpley.
[Appellant’s] conduct was part of a violent home invasion. [The
trial court] considered that [Appellant] took an AK-47 and fought
with Mr. Sharpley as Mr. Sharpley was fighting for his life.
1
Though not at issue in this appeal, it is clear that
[the trial court] considered mitigating information at
resentencing. [The trial court] credited [Appellant]
with what the [court] believed to be positive changes
in [Appellant] since he was incarcerated in this case.
[The trial court] reduced the original sentence
relative to the [a]ggravated [a]ssault conviction to
not less than one nor more than two years. [The
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trial court] reduced the original sentence on the
[c]onspiracy conviction to no further penalty.
[The trial court] exhibited concern that society should be
protected from [Appellant] due to the “outright dangerous,
intentional[,] and knowing” conduct in this case. The
presentence report reflected that [Appellant] was on probation
on one case and parole on another case at the time of the
incident. [The trial court] believed that [Appellant’s] conduct
demonstrated that he could not conform his own conduct to the
dictates to the law and he had a propensity to harm others. This
presentence report noted that prior rehabilitative efforts of
county supervision had not dissuaded [Appellant] from
committing other violent crimes. In [the trial court’s] view,
[Appellant’s] violent conduct continued to escalate despite all of
the efforts that were made to rehabilitate him. His own conduct
further demonstrated his ignorance of his obligations to the
community and his own family.
Further, [the trial court] was convinced that the sentence
imposed in this case would have a deterrent effect on
[Appellant] and on others inclined to commit similar offenses.
Trial Court Opinion, 6/22/2016, at 8-9 (footnote omitted).
Upon review of the record, this Court finds the trial court did not
double count Appellant’s prior criminal history. The trial court did speak at
length about Appellant’s prior convictions, how prior attempts of
rehabilitation proved futile, and how Appellant’s escalating conduct was
undeterred by prior arrests and sentences. See N.T., 4/21/2016, at 41-42
(“[Appellant’s] past demonstrates that he promises [the trial court] all the
time he will be a good guy and follow the rules, then he does something
worse the next time. If you look at his criminal history, he kept doing worse
things. None of the arrests had any good impact on him. The next time he
got arrested was for something worse than the last.”). While the trial court
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indicated it did see some change in Appellant, resulting in a reduction in
Appellant’s aggregate sentence, the court found Appellant’s confinement
necessary for the protection of the public.
I have to say, and I’m saying for the record, that I do
believe [Appellant] is a little different person now than when I
encountered him the last time on this case and when I
sentenced him [] on other cases. … The problem with what you
are asking for … is that now all of that comes a little too late in
the scheme of things. [Appellant] is constantly ignoring his
duties to the community, to his own family, to his own children.
His conduct continued to escalate through all of the efforts that
were made to rehabilitate him. Now he finally got a very severe,
stiff sentence, which he deserved, now suddenly he is making all
of these changes in this relatively short time.
Id. at 43-44.
Furthermore, nowhere in the record does it reflect that the trial court
imposed its sentence based upon the fact that Appellant was armed with an
AK-47 when he entered Mr. Sharpley’s home. To the contrary, the trial
court set forth the facts in the context of detailing Appellant’s crime and his
complete disregard for the safety of others. Id. at 30-31, 38 (“Only because
Mr. Sharpley was able to fight off his attacker, [] was he able to come in this
courtroom and tell us about it. Under a [same] but slightly different
scenario, Mr. Sharpley would be dead having been on the wrong end of the
bullet of [Appellant’s] AK-47. … We are not talking about [Mr. Sharpley]
fighting for his life in a fist fight, we are talking about fighting for his life
when the other guy has an AK-47.”).
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Lastly, Appellant fails to make a cognizable argument, or cite any
authority to support the contention that the individual nature of the crime,
the impact to the victim, and the events surrounding the incident are
incorporated as factors that comprise the guidelines. See Commonwealth
v. Wall, 926 A.2d 957, 967 (Pa. 2007) (holding that the defendant “offered
no legitimate basis to presume” that individual factors of the case “are
subsumed within the sentencing guidelines”). Additionally, we note that the
trial court reviewed Appellant’s PSI prior to sentencing. “[W]here the
sentencing judge had the benefit of a PSI, it will be presumed that he or she
was aware of the relevant information regarding the defendant’s character
and weighed those considerations along with mitigating statutory factors.”
Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa. Super. 2004).
We are not persuaded by Appellant’s argument that the trial court
double counted the gravity of the offense, Appellant’s use of a deadly
weapon or his prior criminal history when imposing Appellant’s sentence, as
the record indicates otherwise. No relief is due.
In light of the foregoing, we discern no abuse of discretion.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/31/2017
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