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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JOHN CARL PEARCE III, :
:
Appellant : No. 773 MDA 2016
Appeal from the Judgment of Sentence April 11, 2016
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0002268-2013
BEFORE: GANTMAN, P.J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY DUBOW, J.: FILED MAY 16, 2017
Appellant, John Carl Pearce III, appeals from the April 11, 2016
Judgment of Sentence entered in the Luzerne County Court of Common
Pleas following Appellant’s open guilty plea to one count of Carrying a
Firearm Without a License.1 After review, we affirm.
On August 10, 2015, Appellant pled guilty to one count of Carrying a
Firearm Without a License. There was no agreement as to sentencing. The
trial court ordered a Pre-Sentence Investigation (“PSI”) Report, which
indicated that Appellant had a prior record score of two points: one point for
two ungraded misdemeanor convictions and one point for a prior juvenile
1
18 Pa.C.S. § 6106(a)(1).
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adjudication for “possession of a weapon on school property.” N.T.,
4/11/16, at 2.
The trial court held a sentencing hearing on April 11, 2016. At the
outset, Appellant raised an issue regarding his prior record score. Although
Appellant did not contest the accuracy of the PSI report or the existence of
the prior adjudication, he questioned whether his juvenile adjudication
should be included in his prior record score because the “weapon” at issue
wasn’t “really a knife.” Id. at 3. Although the trial court offered Appellant a
one week continuance to look into Appellant’s the juvenile adjudication,
Appellant advised the court that he wanted to “proceed forward with
sentencing.” Id. at 5. At the close of the hearing, the trial court sentenced
Appellant to 24 to 48 months of incarceration, a sentence at the bottom of
the standard range of the Sentencing Guidelines.
Appellant did not file a Motion to Modify Sentence.
Appellant timely filed a counseled Notice of Appeal on May 9, 2016.
On May 10, 2016, the trial court entered an Order on the docket directing
Appellant to file a Concise Statement of Errors Complained of on Appeal
pursuant to Pa.R.A.P. 1925(b) within twenty-one days, which Appellant
failed to do.
On July 11, 2016, the trial court filed a Rule 1925(a) Opinion in which
the court noted that, as of that date, Appellant had not filed a Rule 1925(b)
Statement as ordered and had not requested an extension of time in which
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to do so. The trial court opined, therefore, that Appellant had waived his
issues on appeal.
On July 14, 2016, Appellant filed a Nunc Pro Tunc Petition for
Permission to File a Concise Statement of Errors Complained of on Appeal,
which the trial court denied on July 18, 2016. On July 20, 2016, Appellant
filed a Motion for Reconsideration, which the trial court also denied.
Appellant’s counsel nonetheless filed a Brief on October 31, 2016,
challenging the discretionary aspects of his sentence.
On March 13, 2017, this Court filed a non-precedential Judgment
Order, finding that defense counsel’s failure to file a Pa.R.A.P. 1925(b)
Statement constituted per se ineffectiveness. We, therefore, remanded the
case with instructions for Appellant to file a Pa.R.A.P. 1925(b) Statement
nunc pro tunc and for the trial court to file a Pa.R.A.P. 1925(a) Opinion.
On remand, both Appellant and the trial court complied with Pa.R.A.P.
1925.
Appellant raises one issue for our review, namely, “[w]hether the trial
court abused its discretion and imposed a manifestly unreasonable sentence
by miscalculating Appellant’s prior record score[?]” Appellant’s Brief at 1.
Initially, we note that Appellant's claim implicates the discretionary
aspects of sentencing. See Commonwealth v. Johnson, 758 A.2d 1214,
1216 (Pa. Super. 2000) (“A challenge to the calculation of the Sentencing
Guidelines raises a question of the discretionary aspects of a defendant's
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sentence.”). Challenges to the discretionary aspects of sentence are not
appealable as of right. Commonwealth v. Leatherby, 116 A.3d 73, 83
(Pa. Super. 2015). Rather, an appellant challenging the sentencing court's
discretion 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.A. § 9781(b).
Id. (citation omitted).
Here, Appellant complied with the first three requirements above.2
Moreover, we have held that a claim that a trial court's improper
consideration of a prior conviction, with a resulting improper prior record
score, raises a substantial question that the court has violated a
fundamental norm underlying the sentencing process. Commonwealth v.
Anderson, 830 A.2d 1013, 1018 (Pa. Super. 2003). Thus, we will examine
Appellant's claim.
Our well-settled standard of review concerning the discretionary
aspects of sentencing is as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
2
Although Appellant did not file a Post-Sentence Motion, he did challenge
the calculation of his prior record score at the April 11, 2016 Sentencing
Hearing.
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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.
[ ... ]In fashioning a sentence, the trial court must impose a
term of confinement consistent with the protection of the public,
the gravity of the offense as it relates to the impact of the victim
and to the community, and the rehabilitative needs of the
defendant.... Although the trial court must consider the
Sentencing Guidelines, the court is not obligated to impose a
sentence deemed appropriate under the Sentencing Guidelines.
At the same time, the trial court cannot justly sentence a
defendant unless it possesses sufficient and accurate information
about the circumstances of the offense and the character of the
defendant to formulate its judgment. In imposing a defendant's
sentence, the trial court must state the reasons for the sentence
on the record. As long as the trial court's reasons demonstrate
that it weighed the Sentencing Guidelines with the facts of the
crime and the defendant's character in a meaningful fashion, the
court's sentence should not be disturbed.
Anderson, 830 A.2d at 1018–19 (internal citations omitted).
The trial court, in determining the guideline sentence for a criminal
conviction, must establish the defendant's prior record score. 204 Pa.Code §
303.2(a)(2). The prior record score “is based on the type and number of
prior convictions (§ 303.5) and prior juvenile adjudications (§ 303.6).” 204
Pa.Code § 303.4(a). Importantly, as this Court has previously noted:
The practice for calculation of a prior record score usually is as
follows: The court orders a presentence report, which contains a
list of prior arrests and convictions. The court examines the
report, and, at the sentencing hearing, listens to arguments by
prosecution and defense counsel and entertains their
suggestions as to sentence. At that time, counsel make
objections to information obtained in the report and the court
takes their arguments into consideration.
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***
[Accordingly], we hold that the defense has the burden of
alleging invalid prior convictions, and that if the allegations
appear to have merit, the court ordinarily should inquire into the
circumstances surrounding the convictions. If the allegations
warrant it, the court should require the production of evidence
by the Commonwealth showing the validity of the convictions.
If the defendant fails to prove to the satisfaction of the
court that the inference of constitutional adjudications is
wrong, the court may infer that a presentence report
showing convictions is accurate, and proceed on that
basis.
Commonwealth v. Charles, 488 A.2d 1126, 1132 (Pa. Super.
1985) (citations omitted, emphasis added).
In the instant case, although Appellant did raise some question about
his juvenile adjudication, a careful review of the record reveals that
Appellant conceded both the validity of his adjudication, and its computation
as one point towards his prior record score. Specifically, defense counsel
initially told the trial court that she had “some questions about not so much
the adjudication but if, in fact, it is valid as one point.” N.T., 4/11/16, at 2.
However, defense counsel then immediately conceded that the prior
adjudication, as listed on the PSI report, “would render one point” towards a
prior record score, before ultimately telling the trial court that she had “no
reason to dispute” the adjudication listed in the PSI report. Id. at 4.
Appellant himself addressed the trial court, agreeing that he was charged
with possession of a weapon on school property, and ultimately given six
months of probation for the offense. Id. at 3. He did argue, however, that
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the weapon he possessed on school property was “a lighter with a cigar
cutter on it” and not “really a knife.” Id.
Despite the fact that Appellant conceded the accuracy of the PSI
report, the trial court offered Appellant a one-week continuance to permit
him to look into his juvenile record. Id. at 4-5. Defense counsel advised
the court that Appellant wished to proceed to sentencing immediately. Id.
at 5. In response to an inquiry from the trial court, Appellant confirmed his
desire to proceed immediately to sentencing. Id.
In light of the foregoing circumstances, we conclude that the trial court
did not err or otherwise abuse its discretion in relying on the PSI report,
including the prior record score therein. Appellant's sentencing claim,
therefore, fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/16/2017
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