J-S28010-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAWN MICHAEL ALEXANDER :
:
Appellant : No. 148 MDA 2018
Appeal from the Judgment of Sentence November 1, 2017
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0001893-2016
BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED JUNE 29, 2018
Appellant, Shawn Michael Alexander, appeals from the judgment of
sentence entered on November 1, 2017, following his jury trial convictions for
two counts of theft by unlawful taking.1 We affirm.
We briefly summarize the facts and procedural history of this case as
follows. The Commonwealth charged Appellant with two counts of theft by
unlawful taking on October 20, 2016 for stealing automobiles in Franklin
County, Pennsylvania. A trial commenced on September 18, 2017 and the
jury found Appellant guilty of the aforementioned charges. The trial court held
a sentencing hearing on November 1, 2017 and imposed consecutive
sentences of 36 to 84 months of incarceration on each count of theft by
unlawful taking. On November 2, 2017, the trial court filed a statement of
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1 18 Pa.C.S.A. § 3921(a).
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reasons for imposing sentence. On November 7, 2017, Appellant filed a post-
sentence motion for reconsideration of his sentence. On December 19, 2017,
the trial court denied relief by order and accompanying opinion. This timely
appeal resulted.2
On appeal, Appellant presents the following issue for our review:
Did the sentencing court abuse its discretion in sentencing []
Appellant, when the sentence is outside the sentencing guideline,
and is manifestly excessive and unreasonable, because the court
failed to consider the specific and unique circumstances of the
case and [] Appellant’s background pursuant to the requirements
of 42 Pa.C.S.A. § 9721(b) and 42 Pa.C.S.A. § 9721(d)?
Appellant’s Brief at 9.
Appellant summarizes his argument as follows:
[] Appellant in the instant case has a prior record score of four,
and an offense gravity [s]core of six. The sentencing guidelines
call for a standard range sentence of fifteen to twenty-one months
and an aggravated range of twenty-seven months. The sentence
imposed by the [trial c]ourt of thirty-six to eighty four months, on
each count, exceeds the aggravated ranges of the sentencing
guidelines. The sentencing court failed to state adequate reasons
on the record for this departure from the Pennsylvania
[s]entencing [g]uidelines which constitutes an abuse of discretion.
Id. at 19.
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2 Appellant filed a notice of appeal on January 16, 2018. On January 22, 2018,
the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely on January 29, 2018. On January 31, 2018, the trial court filed an
opinion pursuant to Pa.R.A.P. 1925(a), relying upon its previous decision filed
on December 19, 2017.
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Appellant further avers that the trial court erred by justifying above
guideline sentences based upon the fact that Appellant escaped from an
intermediate punishment program and committed the offenses at issue. Id.
He claims the sentencing court failed to acknowledge that Appellant assumed
responsibility for escaping, pled guilty to the charge of escape, and is currently
serving a term of 9 to thirty-six months of incarceration on that charge. Id.
Appellant further argues that the trial court erroneously considered his prior
thirteen convictions for theft, mainly stolen automobiles, when it already
considered his prior record score in applying the sentencing guidelines. Id.
at 20. Appellant contends that the trial court further erred by considering
Franklin County’s lack of public transportation as an additional reason to
impose sentences outside of the aggravated range, citing the victims’ reliance
on personal transportation. Id. Appellant posits that, “[i]f every sentencing
[j]udge were to impose longer prison terms to residents of rural counties than
to those in urban ones, the resulting disparity in treatment would be precisely
what the sentencing guidelines were designed to prevent.” Id. Finally,
Appellant argues that the trial court failed to consider his rehabilitative needs
as a long-term crack addict and that Appellant was unable to work because
he was his father’s caretaker during cancer treatment. Id. at 21.
“It is well-settled that, with regard to
the discretionary aspects of sentencing, there is no automatic right to
appeal.” Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa. Super. 2014)
(citation omitted). Accordingly,
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[b]efore this Court may reach the merits of a challenge to
the discretionary aspects of a sentence, we must engage in a four
part analysis to determine: (1) whether the appeal is timely; (2)
whether [the a]ppellant preserved his issue; (3) whether [the
a]ppellant's brief includes a concise statement of the reasons
relied upon for allowance of appeal with respect to
the discretionary aspects of sentence [see Pa.R.A.P. 2119(f); and
(4) whether the concise statement raises a substantial question
that the sentence is appropriate under the sentencing code. If the
appeal satisfies each of these four requirements we will then
proceed to decide the substantive merits of the case.
Id. (original brackets, ellipsis, and citation omitted).
Here, Appellant filed a timely notice of appeal after preserving his
sentencing claim in a post-sentence motion. He has included a proper Rule
2119(f) statement in his brief. See Appellant’s Brief at 12. Appellant also
presents a substantial question. Antidormi, 84 A.3d at 759 (“This Court has
held that claims that the sentencing court imposed a sentence outside the
standard guidelines without stating adequate reasons on the record presents
a substantial question.”).
Our standard of review of a challenge to the discretionary aspects of
sentence is well-settled:
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.
In every case in which the court imposes a sentence for a felony
or a misdemeanor, the court shall make as a part of the record,
and disclose in open court at the time of sentencing, a statement
of the reason or reasons for the sentence imposed. The sentencing
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guidelines are not mandatory, and sentencing courts retain broad
discretion in sentencing matters, and therefore, may sentence
defendants outside the guidelines. In every case where the court
imposes a sentence outside the guidelines adopted by the
Pennsylvania Commission on Sentencing the court shall provide a
contemporaneous written statement of the reason or reasons for
the deviation from the guidelines. However, this requirement is
satisfied when the judge states his reasons for the sentence on
the record and in the defendant's presence. Consequently, all that
a trial court must do to comply with the above procedural
requirements is to state adequate reasons for the imposition of
sentence on the record in open court.
When imposing sentence, a court is required to consider the
particular circumstances of the offense and the character of the
defendant. In considering these factors, the court should refer to
the defendant's prior criminal record, age, personal characteristics
and potential for rehabilitation.[3] Where 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. A pre-sentence report constitutes the record and speaks
for itself.
Id. at 760–761 (internal citations, quotations, original brackets and ellipsis
omitted).
Here, we initially note that the trial court had the benefit of a
pre-sentence investigation report. Thus, the trial court was aware of
Appellant’s relevant personal background. We presume the trial court
considered it.
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3 Moreover, “[t]he court shall follow the general principle that the sentence
imposed should call for confinement that is consistent with the protection of
the public, the gravity of the offense as it relates to the impact on the life of
the victim and on the community, and the rehabilitative needs of the
defendant.” 42 Pa.C.S.A. § 9721(b).
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Furthermore, at the sentencing hearing, the trial court noted that prior
rehabilitation efforts with Appellant had failed. N.T., 11/1/2017, at 14-15.
The trial court recounted Appellant’s eight-year criminal record, spanning
most of Appellant’s adult life, resulted in 15 criminal convictions and none of
his past punishments “resulted in [Appellant] conforming [his] conduct to
comply with the law.” Id. at 15. Thus, while the trial court cited Appellant’s
criminal record, which also factored into his prior record score, the trial court
looked specifically at the pattern of behavior in determining that past
rehabilitative efforts with Appellant failed. Moreover, the trial court noted that
Appellant escaped from an “intensive treatment program” and “committed
these new crimes.” Trial Court Opinion, 12/19/2017, at 13. The trial court
stated that, while it was “laudable” Appellant took responsibility for escaping
by pleading guilty, that fact did not “mitigate the additional criminal conduct
for which [Appellant] was proven guilty beyond a reasonable doubt at trial
here, namely the theft of two motor vehicles.” Id. at 10 (emphasis in
original). Hence, the trial court concluded that Appellant did not avail himself
of prior rehabilitation opportunities and above guideline sentences were
appropriate in this case. Based upon our standard of review and our
examination of the record, we agree with the trial court’s assessment
regarding Appellant’s rehabilitative needs.
The trial court also heard testimony from Appellant at the sentencing
hearing regarding his employment history. Appellant, 28-years-old at the
time of sentencing, admitted that he only held one job in his life, his
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work-release warehouse job where he escaped. N.T., 11/1/2017, at 10-11.
At this point, Appellant explained that “he went a couple of years without
working because [he] was living with [his father] at the time helping take care
of him.” Id. at 11. The trial court, however, also recognized that Appellant
never held employment outside of confinement, regardless of whether he was
caring for his father. Id. at 11. Thus, the trial court reflected on Appellant’s
role as caregiver at the time of sentencing, but ultimately determined his need
for rehabilitation outweighed this consideration. We discern no abuse of
discretion.
The trial court also concluded that sentences above the guidelines were
appropriate for the protection of the public. The trial court recognized that
Franklin County residents are without public transportation and rely upon their
personal vehicles for their employment, medical needs, and any emergencies
and when Appellant stole two vehicles those thefts impacted the lives of the
victims. Id. at 16. The trial court concluded that Appellant’s “seven prior
convictions for unauthorized use of a motor vehicle[,] established a pattern of
complete disregard for other citizens’ modes of transportation.” Id. at 15.
Based upon the foregoing, we determine that the trial court appropriately
balanced the protection of the public with the particular circumstances of the
offenses and the character of the defendant, when imposing Appellant’s
sentences. In deviating from the sentencing guidelines, the trial court placed
its reasons for doing so on the record as required.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/29/2018
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