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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GERALD LEWIS COTTLE, JR., :
:
Appellant : No. 1911 WDA 2017
Appeal from the Judgment of Sentence November 29, 2017
in the Court of Common Pleas of Mercer County,
Criminal Division, at No(s): CP-43-CR-0000636-2017
BEFORE: BOWES, STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JULY 16, 2018
Gerald Lewis Cottle, Jr. (Appellant) appeals from the judgment of
sentence imposed after he pled guilty to possession with intent to deliver
(PWID). We affirm.
Appellant pled guilty[1] to [PWID] 5.08 grams of cocaine, an
ungraded felony, a second or subsequent offense, in violation of
35 Pa.C.S.[] § 780-113(a)(30)[,] and was sentenced on
November 29, 2017 to serve a term of incarceration in a state
correctional facility of not less than thirty-six (36) months nor
more than ten (10) years. That sentence was consecutive to any
other sentences [A]ppellant was serving.[2]
This offense had an offense gravity score of 7 and
[A]ppellant had a prior record score of 5, resulting in a standard
1
In exchange for his guilty plea, the Commonwealth agreed to nol pros the
remaining charges and would not oppose Appellant’s request to the court that
his sentence run concurrently to already imposed sentences. Plea of Guilt,
9/11/2017.
2
At the time of Appellant’s sentencing hearing, Appellant was serving
backtime for a parole violation. N.T., 11/29/2017, at 14.
*Retired Senior Judge assigned to the Superior Court.
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range of 24 to 30 months plus or minus six months. Thus, the
sentence imposed was at the top end of the aggravated range of
the sentence guidelines []. Appellant filed a timely post-sentence
motion challenging the discretionary aspects of the sentence[.]
Sentencing Court Opinion, 1/30/2018, at 1.
In his post-sentence motion Appellant requested a sentencing
modification because: (1) “[T]he sentence of the [c]ourt is manifestly
excessive in length, because it is not specifically tailored to the nature of the
offense, the ends of justice and society and the rehabilitative needs of
[Appellant;]” (2) Appellant’s sentence exceeded the standard range of the
sentencing guidelines, and his aggravated range sentence was imposed
without sufficient reason; and (3) the court abused its discretion when it
imposed a consecutive sentence “since a concurrent sentence is appropriate.”
Post-Sentence Motion, 12/5/2017, at 1-2 (unnumbered).
After the filing of his post-sentence motion, the sentencing court
scheduled a hearing. At the hearing, Appellant’s counsel acknowledged that
several issues had been raised in Appellant’s motion but that “it all boil[ed]
down to the fact that [Appellant] was given an aggravated[-]range sentence.”
N.T., 12/14/2017, at 1. Counsel stated that this issue was “the only
argument.” Id. at 2. That same day, Appellant’s post-sentence motion was
denied. Appellant thereafter timely filed a notice of appeal.3
3
Both Appellant and the sentencing court complied with Pa.R.A.P. 1925.
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On appeal, Appellant sets forth the three aforementioned issues for our
review. As a preliminary matter, as detailed supra, because Appellant decided
to focus solely on the imposition of an aggravated range sentence at his post-
sentence motion hearing, we find Appellant has abandoned his two remaining
claims for the purposes of this appeal. Regardless, even if Appellant’s issues
were preserved, for the reasons that follow, he would still not be entitled to
relief.
Appellant’s claims all challenge the discretionary aspects of his
sentence. Appellant’s Brief at 7. Accordingly, we bear in mind the following.
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 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).
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Here, Appellant timely filed a post-sentence motion and a notice of
appeal, and included a statement pursuant to Rule 2119(f) in his brief. 4 We
now turn to consider whether Appellant has presented substantial questions
for our review.
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825,
828 (Pa. Super. 2007). “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.” Griffin, 65 A.3d at 935 (citation and quotation marks omitted).
We address first Appellant’s claim challenging the court’s order that his
sentence run “consecutive to any sentence [he] may now be serving.”
Sentencing Order, 11/29/2017, at 1-2. By way of further background, at the
time of Appellant’s sentencing hearing, Appellant had already been sentenced
to three-to-10 years’ incarceration in an unrelated case. N.T., 11/29/2017,
at 13. However, Appellant had yet to begin this sentence because he was
serving backtime for a parole violation. See N.T., 11/29/2017, at 13-14 (In
response to the sentencing court’s inquiry as to when Appellant started
4Despite Appellant’s woefully inadequate 2119(f) statement, see Appellant’s
Brief at 12-13, the Commonwealth has not objected, so we will consider
whether Appellant has raised substantial questions for our review.
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serving his three-to-10 year sentence, Appellant replied that he “hadn’t even
started [it] yet, sir. I was a parole violator so I really got a year hit so I am
still doing that right now, I got like eight months on that.”).
It is clear that Appellant’s sentence was to run consecutively to the
remaining time on his parole violation, since he was serving his backtime when
he was sentenced in the instant case. It is less clear whether the court’s order
intended that Appellant’s sentence run consecutive to the sentence he had yet
to begin serving.
With respect to the former, it is well-settled that “where a state parolee
gets a new state sentence, he must serve his backtime first before
commencement of the new state sentence. Imposition of a new state
sentence concurrent with parolee’s backtime on the original state sentence is
an illegal sentence[.]” Commonwealth v. Kelley, 136 A.3d 1007, 1013-14
(Pa. Super. 2016) (internal citation omitted). Because Appellant was legally
required to serve his backtime before beginning to serve a new sentence, the
sentencing court was without the discretion to impose a concurrent sentence.
With respect to the latter, even if the court ordered Appellant’s sentence
to run consecutively to his three-to-10 year term of incarceration he had yet
to begin serving, a bald assertion that the court’s imposition of a consecutive
sentence was an abuse of discretion does not raise a substantial question.
See Appellant’s Brief at 16.
Although Pennsylvania’s system stands for individualized
sentencing, the court is not required to impose the “minimum
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possible” confinement. Under 42 Pa.C.S.[] § 9721, the court has
discretion to impose sentences consecutively or concurrently and,
ordinarily, a challenge to this exercise of discretion does not raise
a substantial question.
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (citation
omitted). See also Commonwealth v. Diehl, 140 A.3d 34, 45, (Pa. Super.
2016) (“A bald claim of excessiveness due to the consecutive nature of a
sentence will not raise a substantial question.”). No relief is due.
However, Appellant’s remaining two claims, that the court erred in (1)
imposing an aggravated range sentence without sufficient reasoning, and (2)
failing to consider the factors set forth in the sentencing code, do raise
substantial questions for our review. See Commonwealth v. Wellor, 731
A.2d 152, 155 (Pa. Super. 1999) (“In his final issue [a]ppellant claims the
lower court failed to state on the record adequate reasons for imposing
sentences in the aggravated range. This Court has held that such a challenge
to the sentence raises a substantial question.”); Commonwealth v.
Serrano, 150 A.3d 470, 473 (Pa. Super. 2016) (“This Court has previously
found a substantial question to be raised where an appellant alleged that the
sentencing court [] failed to consider relevant sentencing criteria, including
the protection of the public, the gravity of the underlying offense and the
rehabilitative needs of appellant.”).
With respect to these claims, Appellant’s entire argument is as follows:
For [Appellant], the applicable sentence guidelines for an offense
gravity score of 6 and a prior record score of 5 called for [24 to
30] month range, plus or minus six (6) months. The sentenc[ing]
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court imposed an aggravated range sentence of [36 months to
10] years without a sufficient justification. The sentence was not
specifically tailored to the nature of the offense, the ends of justice
and society nor the rehabilitative needs of [Appellant].
Appellant’s Brief at 15-16 (unnecessary capitalization omitted). With the
exception of case law, Appellant’s “argument” is essentially a recitation of his
questions presented. See Appellant’s Brief at 7.
It is Appellant’s obligation to sufficiently develop arguments in his
brief by applying the relevant law to the facts of the case,
persuade this Court that there were errors below, and convince us
relief is due because of those errors. If an appellant does not do
so, we may find the argument waived.
Commonwealth v. Gibbs, 981 A.2d 274, 284 (Pa. Super. 2009). Here, we
find that Appellant has failed to develop his issues “in any meaningful fashion
capable of review.” Commonwealth v. Walter, 966 A.2d 560, 566 (Pa.
2009). Thus, his remaining claims are waived.
Even if we did reach the merits of Appellant’s claims, he would not
prevail on appeal. At Appellant’s sentencing hearing, the court stated the
following.
Unfortunately, [Appellant], I have been dealing with you for a
number of years on these drug cases. It doesn’t appear as though
anything has been internalized by you in the therapeutic
community programs. It is a lifestyle, it is a career for you almost
of [sic] drug dealing.
***
You have a profound drug addiction that has not been overcome
by whatever programs were made available to you prior to your
going out [sic] from the prison again. You were on parole when
this one happened as well. … So we have been unsuccessful,
unfortunately, in trying to rehabilitate you. … You do not appear
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to be [amenable] to supervision in the community from your
continued parole violations and continued offenses, so there is no
reason for me not to give you a sentence in the aggravated range.
… In addition, because it is a career problem that you have been
unable to shake, I will make it consecutive to anything you’re
serving now.
***
[T]his is a sentence in the aggravated range because of
[Appellant] being a career drug dealer with a profound drug
addiction that has not been overcome by various treatment
programs within a State Correctional Facility and because
[Appellant] ha[d] been on parole while the new offense was
committed and that he is not [amenable] to supervision in the
community.
N.T., 11/29/2017, at 18-20. Additionally, the court, acknowledging
Appellant’s drug addiction, directed Appellant “be placed in a therapeutic
community” to address this issue. Sentencing Order, 11/29/2017, at 2.
Moreover, we note that the sentencing court reviewed a pre-sentence report
(PSI) prior to sentencing.5 “[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).
Furthermore, in addition to the foregoing, the sentencing court listened
to statements made by Appellant and asked several questions regarding
5
Appellant and the Commonwealth agreed that the sentencing court would
review the most recent PSI, which was created for a previous sentencing
hearing that occurred in May 2017. Order, 9/11/2017; N.T., 11/29/2017, at
12.
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Appellant’s background and previous incarcerations. N.T., 11/29/2017, at 14-
18. Nonetheless, for the reasons cited supra, the sentencing court concluded
that the imposition of an aggravated-range sentence was appropriate. See
Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003) (An
“appellate court must give great weight to the sentencing court’s discretion,
as he or she is in the best position to measure factors such as the nature of
the crime, the defendant’s character, and the defendant’s display of remorse,
defiance, or indifference.”).
In light of the foregoing, we find Appellant has presented no issue on
appeal which would convince us to disturb his judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/16/2018
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