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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
LEON DAVID RANSOM, :
:
Appellant : No. 1495 MDA 2016
Appeal from the Judgment of Sentence August 2, 2016
In the Court of Common Pleas of Columbia County
Criminal Division at No.: CP-19-CR-0000913-2015
BEFORE: BOWES, J., DUBOW, J., and FITZGERALD, J.*
MEMORANDUM BY DUBOW, J.: FILED MAY 15, 2017
Appellant, Leon David Ransom, appeals from the Judgment of
Sentence entered August 2, 2016, in the Court of Common Pleas of
Columbia County. After careful review, we affirm.
The relevant facts and procedural history of this case are as follows.
On August 2, 2016, Appellant entered an open guilty plea to one count of
Robbery, a felony of the second degree.1 The charges stemmed from
Appellant’s participation in a September 3, 2015 armed robbery of
Sneidman’s Jewelry Store in Bloomsburg, PA. During the robbery,
Appellant’s codefendant pointed a firearm at an employee’s head and held it
against her head while Appellant took items from the display cases. Both
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3701(a)(1)(iv).
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Appellant and his codefendant wore masks and hoods, and they were both
caught on video surveillance fleeing the scene in a white 2003 Volvo sedan.
Police in Maryland stopped and arrested Appellant and his codefendant in the
same vehicle on unrelated charges a few days later, and police recovered
the proceeds of the Robbery and two firearms.
The trial court sentenced Appellant to a term of two to five years’
incarceration. Appellant filed a timely Post-Sentence Motion to Modify
Sentence, which the trial court denied on September 6, 2016.
On September 12, 2016, Appellant filed a timely Notice of Appeal.
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following issue for our review:
Whether the [t]rial [c]ourt can sentence a defendant in the
aggravated range when the sentence is already enhanced by the
weapon enhancement provision of the sentencing code?
Appellant’s Brief at 6.
Appellant challenges the discretionary aspects of his sentence and, as
such, must properly invoke this Court’s jurisdiction in order to seek review
on the merits. See Commonwealth v. Rhoades, 8 A.3d 912, 915 (Pa.
Super. 2010) (clarifying that a challenge to the application of a deadly
weapon enhancement is a challenge to the discretionary aspects of a
sentence rather than its legality). “Challenges to the discretionary aspects
of sentencing do not entitle an appellant to review as of right.”
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (citation
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omitted). Rather, Appellant must first meet his burden of satisfying the
following four elements before we will review the discretionary aspect of a
sentence:
(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).
Id. (quoting Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006)).
Here, Appellant met the first three elements by filing a timely Notice of
Appeal, properly preserving the issue, and including in his Brief a Statement
of Reasons Relied Upon for Allowance of Appeal pursuant to Pa.R.A.P.
2119(f) (“Rule 2119(f) Statement”).
Accordingly, we next determine whether Appellant’s claims present a
“substantial question” for review. An appellant raises a “substantial
question” when he “sets forth a plausible argument that the sentence
violates a provision of the sentencing code or is contrary to the fundamental
norms of the sentencing process.” Commonwealth v. Crump, 995 A.2d
1280, 1282 (Pa. Super. 2010) (citation omitted). This Court has no
jurisdiction where an appellant’s Rule 2119(f) Statement fails to raise “a
substantial question as to whether the trial judge, in imposing sentence,
violated a specific provision of the Sentencing Code or contravened a
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‘fundamental norm’ of the sentencing process.” Commonwealth v.
Coulverson, 34 A.3d 135, 142 (Pa. Super. 2011) (citations omitted).
In the instant case, Appellant avers that the trial court’s decision to
impose a sentence in the aggravated range, while at the same time applying
the deadly weapon enhancement (“DWE”), was “unjust.” Appellant’s Brief at
5. Appellant’s Rule 2119(f) Statement essentially challenges the application
of the DWE, which presents a substantial question. See Commonwealth v.
Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014) (en banc) (holding that
defendant presented a substantial question by challenging the application of
the DWE where the deadly weapon was a truck); Commonwealth v.
Smith, 151 A.3d 1100, 1103 (Pa. Super. 2016) (holding that the
Commonwealth presented a substantial question by challenging trial court’s
refusal to apply DWE where defendant caused injuries with a motor vehicle).
Appellant also alleges that the trial court failed to explain adequately
the basis for aggravating the sentence. Appellant claims that the trial court
failed to “state any additional reasons to aggravate this sentence” because
the factors the trial court listed during Appellant’s sentencing hearing “were
incorporated in the guidelines and the [A]ppellant’s offense gravity score.”
Appellant’s Brief at 8. This also presents a substantial question. See
Commonwealth v. McNabb, 819 A.2d 54, 56-57 (Pa. Super. 2003)
(finding a substantial question where defendant “alleg[ed] that the
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sentencing court did not sufficiently state its reasons for the sentence” and
relied on “impermissible factors.”).
Having determined that Appellant has presented two substantial
questions for our review, we turn to the merits of his sentencing claims.
“[W]e analyze the sentencing court’s decision under an abuse of
discretion standard.” Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa.
Super. 2015) (citation omitted). “An abuse of discretion requires the trial
court to have acted with manifest unreasonableness, or partiality, prejudice,
bias, or ill-will, or such lack of support so as to be clearly erroneous.”
Crump, supra at 1282 (citation omitted). In addition, “this Court’s review
of the discretionary aspects of a sentence is confined by the statutory
mandates of 42 Pa.C.S. § 9781(c) and (d).” Commonwealth v. Macias,
968 A.2d 773, 776-77 (Pa. Super. 2009).
Section 9781(c) provides that this Court shall vacate a sentence and
remand under three circumstances:
(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines erroneously;
(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly unreasonable; or
(3) the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.
42 Pa.C.S. § 9781(c). In addition, we consider:
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.
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(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).
The DWE provides, in relevant part, as follows:
(1) When the court determines that the offender possessed a
deadly weapon during the commission of the current conviction
offense, the court shall consider the DWE/Possessed Matrix (§
303.17(a)). An offender has possessed a deadly weapon if any of
the following were on the offender’s person or within his
immediate physical control
(i) Any firearm, (as defined in 42 Pa.C.S. § 9712) whether
loaded or unloaded, or
(ii) Any dangerous weapon (as defined in 18 Pa.C.S. §
913), or
(iii) Any device, implement, or instrumentality designed as
a weapon or capable of producing death or serious bodily
injury where the court determines that the offender
intended to use the weapon to threaten or injure another
individual.
204 Pa. Code § 303.10(a)(1). Thus, according to Section 303.10(a)(1), the
DWE sentencing matrix applies to offenders who possessed a deadly weapon
during the commission of a crime.
The DWE applies to non-armed co-conspirators in robberies where one
co-conspirator holds a weapon and another co-conspirator takes items from
the victim. See Commonwealth v. Phillips, 946 A.2d 103, 114 (Pa.
Super. 2008) (observing that the unarmed offender had knowledge of the
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existence of a weapon and “could easily have been given or taken the gun at
any moment during the robbery.”).
“A sentencing court need not undertake a lengthy discourse for its
reasons for imposing a sentence or specifically reference the statute in
question, but the record as a whole must reflect the sentencing court’s
consideration of the facts of the crime and character of the offender.”
Crump, supra at 1283 (citation omitted). Further, “[w]here pre-sentence
reports exist, we shall ... presume that the sentencing judge was aware of
relevant information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.” Commonwealth v.
Antidormi, 84 A.3d 736, 761 (Pa. Super. 2014) (quotation marks and
citation omitted). Additionally, “[w]hen the court imposes an aggravated or
mitigated sentence, it shall state the reasons on the record[.]” 204 Pa.Code
§ 303.13(c).
Here, the trial court did not abuse its discretion when it sentenced
Appellant. The parties agreed that the PSI, which stated that Appellant’s
prior record score was zero and the offense gravity score was 7, was
accurate. Appellant offered no corrections to the PSI. See N.T. Sentencing,
8/2/16, at 2. Using the DWE (Possessed) matrix, the standard range of the
guidelines was from 12 to 20 months’ incarceration, with an available
aggravated range of up to 26 months (i.e., six additional months). 204 Pa.
Code § 303.17(a); 204 Pa. Code § 303.13(a)(3).
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The trial court imposed a minimum sentence of 24 months, which is
within the aggravated range of the applicable sentencing guidelines. See
N.T. Sentencing, 8/2/16, at 12. After the Commonwealth presented victim
impact testimony from the employee whom Appellant and his codefendant
had held at gunpoint during the robbery, the trial court issued the following
statement when imposing the sentence:
My reasons, to state the reasons, it is my purpose, my
obligation, to state the reasons for my sentence. I have
considered probation and rejected the same because I believe
that you knew or you should have known that your actions
would cause serious harm to the victims. You knew or should
have known it could cause physical and/or psychological injury.
There is no provocation for your actions, no grounds tending to
excuse or justify your crimes. The victims did nothing to
facilitate or induce the crimes committed against them. You will
not be able to compensate the victims for their injuries. I
considered guilt without penalty and partial confinement,
rejected both for the above stated reasons. I believe the lesser
sentence would seriously depreciate the nature of your crimes.
N.T. Sentencing, 8/2/16, at 11.
We conclude that the trial court did not abuse its discretion in
sentencing Appellant. First, the trial court properly applied the DWE. Even
though Appellant did not actually hold the weapon and threaten the
employee, Appellant knew his codefendant had the weapon and Appellant
could have taken the gun at any moment. See Phillips, supra at 114.
Second, the trial court’s statement of reasons adequately explained its
decision to impose a sentence in the aggravated range of the DWE
guidelines. The trial court relied on several permissible factors to impose a
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sentence in the aggravated range. Such factors were not duplicative of
factors already taken into consideration by the prior record score, offense
gravity score, or the deadly weapon enhancement.
Moreover, Appellant’s bald assertion that it is never permissible to
impose an aggravated sentence when applying the “already enhanced” DWE
matrix2 simply ignores the contents of the DWE matrices and the Sentencing
Code. See, e.g., 204 Pa. Code § 303.17(a)-(b) (including a separate
column listing the aggravated and mitigated ranges for the DWE matrices).
We discern no abuse of discretion. Therefore, we affirm Appellant’s
Judgment of Sentence.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/15/2017
2
Appellant’s Brief at 6.
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