J-S67012-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
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SHAWN TURNER :
: No. 3046 EDA 2016
Appellant
Appeal from the Judgment of Sentence August 3, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001329-2015
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
SHAWN TURNER :
: No. 3047 EDA 2016
Appellant
Appeal from the Judgment of Sentence August 3, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001336-2015
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
SHAWN TURNER :
: No. 3048 EDA 2016
Appellant
Appeal from the Judgment of Sentence August 3, 2016
J-S67012-17
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001354-2015
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
SHAWN TURNER :
: No. 3050 EDA 2016
Appellant
Appeal from the Judgment of Sentence August 3, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001370-2015
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
SHAWN TURNER :
: No. 3051 EDA 2016
Appellant
Appeal from the Judgment of Sentence August 3, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001371-2015
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
SHAWN TURNER :
: No. 3053 EDA 2016
Appellant
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J-S67012-17
Appeal from the Judgment of Sentence August 3, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001372-2015
BEFORE: GANTMAN, P.J., MUSMANNO, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 15, 2017
This is an appeal from the judgment of sentence entered in the Court of
Common Pleas of Philadelphia County following Appellant Shawn Turner’s
guilty plea in six separate cases, which were consolidated in the lower court.
On appeal, Appellant contends the trial court abused its discretion in imposing
his sentence. After a careful review, we affirm.
The relevant facts and procedural history are as follows: Following his
arrest for six separate robberies,1 Appellant, who was represented by counsel,
proceeded to a hearing on March 22, 2016, at which he entered an open guilty
plea to various charges related to the six robberies.2 Sentencing was deferred
pending a presentence investigation and a mental health evaluation.
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* Former Justice specially assigned to the Superior Court.
1Appellant, along with a co-conspirator, robbed two Metro PCS stores, a T-
Mobile store, a pizza restaurant, a Tru-Mobile store, and a corner store. N.T.,
3/22/16, at 18-29.
2 Specifically, he entered an open guilty plea to the following:
CP-51-CR-0001329-2015-robbery (F-1), conspiracy (F-1),
possession of an instrument of crime (M-1), and terroristic threats
(M-1).
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On August 3, 2016, Appellant, represented by counsel, proceeded to a
sentencing hearing at which the trial court indicated it had reviewed the
presentence investigation report, mental health evaluation, and sentencing
guidelines form. N.T., 8/3/16, at 4. The parties agreed that Appellant’s prior
record score was 1; the offense gravity score for each robbery was 10 and for
each conspiracy 9; and under the sentencing guidelines, the standard range
was 48 to 60 months plus or minus 12 for each count of robbery and 36 to 48
months plus or minus 12 for each count of conspiracy. Id.; Trial Court Opinion,
filed 12/23/16, at 4.
The trial court acknowledged that Appellant had “a lot of family” at the
sentencing hearing, Appellant was eighteen years old at the time he
committed the instant robberies, Appellant was addicted to drugs and alcohol,
and Appellant had been candid with presentence investigators as to his role in
____________________________________________
CP-51-CR-0001336-2015-2 counts of robbery (F-1), conspiracy
(F-1), possession of an instrument of crime (M-1), terroristic
threats (M-1), and simple assault (M-2).
CP-51-CR-0001354-2015-2 counts of robbery (F-1) and
possession of an instrument of crime (M-1).
CP-51-CR-0001370-2015-2 counts of robbery (F-1) and
conspiracy (F-1).
CP-51-CR-0001371-2015-robbery (F-1), conspiracy (F-1), and
possession of an instrument of crime (M-1).
CP-51-CR-0001372-2015-2 counts of robbery (F-1), conspiracy
(F-1), and possession of an instrument of crime (M-1).
Trial Court Opinion, filed 12/23/16, at 1.
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the robberies. N.T., 8/3/16, at 5-7. The trial court indicated it reviewed
statements provided on behalf of Appellant. Id. at 5-6.
Defense counsel admitted that Appellant has “a history of arrests and
these particular crimes represent a significant increase in his criminal
activity[;]” however, in consideration of Appellant’s “strong family support,”
“young age at the time of th[e] offenses,” and acceptance of responsibility for
his crimes, defense counsel averred that Appellant has a potential for
rehabilitation. Id. at 7, 9. Defense counsel asked for an aggregate sentence
of three years to six years in prison, with a lengthy probationary tail, so that
Appellant could receive drug treatment in prison and then have an opportunity
to prove he has been rehabilitated. Id. at 8-9.
The prosecutor indicated that Appellant, as a juvenile, was committed
to “Saint Gabe’s” with a supervision termination date of April 25, 2014. Id.
at 9-10. Based on the dates of the robberies at issue, he had committed at
least two of the robberies before he was terminated from supervision as a
juvenile. Id. Further, the prosecutor noted that, within weeks of the juvenile
supervision termination, Appellant committed another robbery on May 9,
2014. Id. at 10. The prosecutor noted that the violence involved with the
robberies was progressively increasing. Id. at 10-11.
Opining that Appellant is not amenable to rehabilitation, the prosecutor
requested an aggregate sentence of ten years to twenty years in prison, with
a consecutive period of ten years’ reporting probation. Id. at 11. Further,
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the prosecutor averred that a lengthy prison sentence was required for the
protection of the community, noting “[Appellant] did terrorize multiple
innocent victims, people who were just doing work. . . .They were just doing
their jobs and trying to make a living, and [Appellant] comes in and terrorizes
them.” Id.
Appellant made a statement to the court in which he apologized to the
victims, indicating he did not intend to hurt them physically or mentally. Id.
at 15-16. He indicated he was “a young, absent-minded child at the time
[and] [a]ll [he saw] was an opportunity to get some quick money and nothing
else.” Id. at 16. He stated that his drug habit “clouded his better judgment,”
and when he committed the robberies he was “a lost child trying to find
[himself].” Id. He noted he is “not really a bad person,” and he hoped the
victims would forgive him. Id.
Appellant further apologized to his family, noting they “tried to instill
morals into [his] everyday life” and “tried to steer [him] away from the
streets[.]” Id. at 16-17. He acknowledged he had “a pretty good upbringing
and caring people who supported [him] in everything [he] did.” Id. He
indicated he was raised primarily by his grandmother, who was a teacher as
well as a “strong-willed, church-going woman who raised [him] to the best of
her ability.” Id. He noted his father, who is a behavioral specialist counselor,
was “also very supportive of [him] in [his] upbringing.” Id. at 17. He
indicated his father came to the grandmother’s house every day to help him
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with his homework and “teach [him] new things about life[.]” Id. His mother
is a nurse. Id.
Appellant informed the trial court of the following:
I was deemed mentally gifted at the age of eight or nine
years old. I was reading on a tenth grade level when I was in
sixth grade. I completed school a year earlier than when I was
supposed to. I ha[ve] certifications in Microsoft Word,
PowerPoint, and Excel. And I also have a certification where I’m
allowed to work in kitchens and prepare, cook, and serve food.
***
I was 18 years old at the time for most of these crimes. I’m
now 20. I’ve been locked up for two years. During the two-year
period, I got the time to actually sit down and evaluate my
situation, and jail is not what I want my life to become, Your
Honor.
Before my incarceration when I left placement, I did apply
for community college. I took my placement test and picked my
courses. The only thing I had left to do was to get approved for
my financial aid so I could start. I was going to take up business
administration just like my father. If I go home anytime soon, I
think I would reapply and try to take psychology courses instead.
Your Honor, all I’m asking for here today is a chance,
another chance in life, please. I don’t think me sitting in jail for
the next few years is going to benefit me in any way. I know what
I did was wrong, Your Honor, and I do own up to my mistakes,
but could you please have mercy upon me and give me another
chance in life, please?
Id. at 17-19.
Following Appellant’s statement, the trial court indicated the
following:
I’ve considered the arguments of both counsel, the
presentence report, the sentencing guidelines form. I’ve
considered [Appellant’s] allocution, which I do credit, and, again,
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the Court recognizes the people in the room for [Appellant] and
finds [Appellant] does have some family support.
With the presentence report or attached to the presentence
report, the Court made note before today of a letter dated June
10, 2016, from Buena Regional High School, authored by the
principal, Mr. Moses White, as well as a letter from Pest Free
Maintenance, Inc., authored by Rhonda Griffin on behalf of
[Appellant], in addition to the addendum that counsel has passed
up.
Among the mitigating factors in this case are [Appellant’s]
youth. This Court recognizes that there’s plenty of room for
improvement. This Court recognizes [Appellant’s] acceptance of
responsibility and, believe it or not, that goes a long way. That’s
got to be balanced with the conduct in each of these cases and
there are many on multiple dates.
As an aggravating factor, [Appellant] has shown that he’s
not amenable to supervision and his repeated conduct for the
same type of crime and criminal history as a whole I believe
mandates a sentence that will protect society adequately; also,
[Appellant’s] rehabilitative needs, given all the information,
requires a lengthier sentence than what is proposed by the
defense.
Id. at 19-20.
The trial court then imposed the following sentence: CP-51-CR-
0001329-2015-robbery and conspiracy-2½ to 5 years in prison, the
sentences to run concurrently; CP-51-CR-0001336-2015-two counts of
robbery and one count of conspiracy-2½ years to 5 years in prison for each
count, the sentences to run concurrently to each other but consecutively to
the sentence imposed at CP-51-CR-0001329-2015; CP-51-CR-0001354-
2015-two counts of robbery and one count of possession of an instrument of
crime-2½ to 5 years in prison, the sentences to run concurrently to each other
but consecutively to the previously imposed sentences; CP-51-CR-0001370-
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2015-robbery and conspiracy-2½ to 5 years in prison, the sentences to run
concurrently to each other, and robbery-2½ to 5 years in prison, the sentence
to run consecutively to the previous sentences at this docket number, as well
as consecutively to the previous docket numbers; CP-51-CR-0001371-
2015-robbery, conspiracy, and possession of an instrument of crime-2½ to 5
years in prison, the sentences to run concurrently to each other but
consecutively to the previously imposed sentences; and CP-51-CR-
0001372-2015-two counts of robbery, conspiracy, and possession of an
instrument of crime-2½ to 5 years in prison, the sentences to run concurrently
to each other but consecutively to the previously imposed sentences.3 The
aggregate sentence was 17½ to 35 years in prison.
Appellant asked the trial court why it imposed such a lengthy sentence,
and the trial court indicated:
In weighing all the factors together, I think that’s what [is]
appropriate if you mean anything of what you said during
allocution, although this is hard to take. All right? I can’t ignore
this number of violent offenses and you started a long time ago.
You’re a smart young man and you can put that to use but we also
don’t need a smart robber.
Id. at 24.
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3The trial court imposed no further penalty for the remaining charges at each
docket number. It should be noted that, at docket number CP-51-CR-8881-
2014, which is not at issue on appeal, Appellant pled guilty to fleeing or
attempting to elude police. The trial court sentenced him to five years of
probation, to run consecutively to the sentences imposed at the docket entries
discussed supra.
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Appellant filed a timely motion for reconsideration of his sentence, which
the trial court denied. This timely, counseled appeal followed. All Pa.R.A.P.
1925 requirements have been met.
On appeal, Appellant avers that his sentence is manifestly excessive and
is not consistent with the protection of the public, the gravity of the offense
as it relates to the impact on the victim and the community, and the
rehabilitative needs of Appellant. Appellant further avers the trial court
abused its discretion in failing to adequately consider the mitigating factors,
including Appellant’s young age, his acceptance of responsibility, his drug
dependency, his mental health issues, and the fact his prior record score was
based on a juvenile adjudication of delinquency.
A challenge to the discretionary aspects of sentencing is not
automatically reviewable as a matter of right.4 Commonwealth v. Hunter,
768 A.2d 1136 (Pa.Super. 2001). Prior to reaching the merits of a
discretionary sentencing issue:
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).
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4 A defendant who enters an open guilty plea may seek to challenge the
discretionary aspects of his sentence on appeal. See Commonwealth v.
Dalbert, 648 A.2d 16 (Pa.Super. 1994).
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Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006) (citations
omitted).
Here, Appellant filed a timely notice of appeal and a timely post-
sentence motion adequately preserving his discretionary aspect of sentencing
claims. Further, he included a separate Pa.R.A.P. 2119(f) statement in his
appellate brief. As to whether Appellant has presented a substantial question,
we note the following:
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. A substantial question
exists only when the appellant advances a colorable argument
that the sentencing judge's actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010) (citation,
quotation marks, and quotation omitted).
This Court has previously found a substantial question to have been
raised when an appellant alleged the trial court failed to consider relevant
sentencing criteria, including the protection of the public, the gravity of the
underlying offense, and the rehabilitative needs of the appellant. See
Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2012). However,
“this Court has held on numerous occasions that a claim of inadequate
consideration of mitigating factors does not raise a substantial question for
our review.” Commonwealth v. Caldwell, 117 A.3d 763, 769 (Pa.Super.
2015) (en banc) (quotation and quotation marks omitted). In any event,
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assuming, arguendo, Appellant has presented a substantial question with
regard to both sentencing claims, we find there is no merit to either claim.
It is well-settled that:
Sentencing 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. Gonzalez, 109 A.3d 711, 731 (Pa.Super. 2015)
(quotation omitted).
In the case sub judice, in rejecting Appellant’s discretionary aspects of
sentencing claims, the trial court relevantly indicated the following:
[T]he court carefully considered the record before it, the
presentence reports, [Appellant’s] allocution, the arguments of
counsel, and the sentencing guidelines. The court also considered
the circumstances of the offenses both in isolation and as a
pattern of criminal behavior, N.T., 8/3/16, [at] 20, 24, and the
need for protection of society. N.T., 8/3/16, [at] 20. Moreover,
two of the robberies were committed while [Appellant] was still
under juvenile court supervision for his delinquency adjudication
on another robbery. The court concluded from this conduct that
[Appellant] was not amenable to supervision. N.T., 8/3/16, [at]
20.
Consistent with 42 Pa.C.S.A. § 9721(b), the court
specifically weighed the mitigating circumstances of [Appellant’s].
N.T., 8/3/16, [at] 19-20. The court also specifically considered
the rehabilitative needs of [Appellant], and addressed those needs
both through the duration of the sentence and by ordering that
“[w]hile in custody, [Appellant] should undergo a dual diagnosis
evaluation to access his needs for treatment, and he should
undergo a treatment as long as recommended in that evaluation.
His treatment should include anger management.” N.T., 8/3/16,
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[at] 22. The court also recommended further vocational training.
N.T., 8/3/16, [at] 23.
To be clear, during April and May of 2014, [Appellant] and
his accomplice went on a crime spree, robbing four (4) phone
stores, a pizza parlor, and a corner grocery at point of apparent
gun, terrorizing the employees and customers, not only stealing
business receipts and merchandise, but even taking money from
individual’s wallets. N.T., 3/22/16, [at] 24-25. Although the gun
was apparently a plastic facsimile, the innocent business persons
and customers did not know this, as they were robbed and
terrorized by [Appellant] and his partner in crime. Nor was
[Appellant] a passive participant or mere lookout. He was an
active participant and in the majority of the robberies, the
apparent leader. These crimes and threats of violence against
businesses and their customers in some of the City’s “shoulder”
neighborhoods harms not just the individuals, but the very
neighborhoods where these businesses are attempting to gain a
foothold and serve the local population.
Nor was [Appellant] disadvantaged, lacking a support
system or suffering from lack of intelligence or education. To the
contrary, he had a supportive family, a good education, and is
quite intelligent. N.T., 8/3/16, [at] 16-18. These factors make
[Appellant’s] crime spree all the more inexcusable and
incomprehensible. As the court noted at sentencing: “You’re a
smart young man and you can put that to use but we also don’t
need a smart robber.” N.T., 8/3/16, [at] 24.
***
[T]here were at least eleven (11) victims in these six (6)
robberies, and [Appellant] could have been charged with other
crimes, including burglary. He was not. The court also did not
impose sentence on the “lesser” offenses, nor did it impose all
available consecutive sentences on the most serious felonies.
Under all these circumstances, the court concluded that an
aggregate sentence of 17½ to 35 years on these six felony of the
first degree conspiracy robberies, with an apparent weapon, was
necessary and appropriate, and was imposed in accordance with
42 Pa.C.S.A. § 9721(b).
Trial Court Opinion, filed 12/23/16, at 6-8 (footnote omitted).
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We find no abuse of discretion. The record reveals the trial court
sentenced Appellant in accordance with the factors set forth in Section
9721(b) pertaining to the protection of the public, the gravity of the underlying
offense, and the rehabilitative needs of Appellant. Also, the trial court had
the benefit of a presentence investigation report, and thus, we can assume
the trial court “was aware of relevant information regarding [Appellant’s]
character and weighed those considerations along with mitigating statutory
factors.” Commonwealth v. Devers, 519 Pa. 88, 101-02, 546 A.2d 12, 18
(1988). See Commonwealth v. Fowler, 893 A.2d 758, 766 (Pa.Super.
2005) (“Since the sentencing court had and considered a presentence
investigation report, this fact alone was adequate to support the sentence,
and due to the court’s explicit reliance on that report, we are required to
presume that the court properly weighed the mitigating factors present in the
case.”). Accordingly, Appellant is not entitled to relief on his discretionary
aspects of sentencing claims.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/15/2017
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