J-S77009-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PARIS L. GANTZ
Appellant No. 492 MDA 2016
Appeal from the Judgment of Sentence February 25, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0002557-2015
BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PANELLA, J. FILED DECEMBER 09, 2016
Appellant, Paris L. Gantz, appeals from the judgment of sentence
entered after a jury convicted him of possession of marijuana with intent to
deliver (“PWID”) and illegal possession of a firearm. Gantz contends that the
trial court abused its discretion in imposing a sentence in the aggravated
range of the sentencing guidelines for the PWID conviction. After careful
review, we affirm.
A detailed presentation of the factual and procedural history of this
appeal is unnecessary given that Gantz’s sole issue on appeal concerns the
discretionary aspects of the sentence imposed. Gantz was convicted of PWID
and possession of a firearm as a previously convicted felon.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S77009-16
At sentencing, the trial court reviewed a pre-sentence investigation
report (“PSI”) and was correctly informed of the guideline ranges that
applied. Gantz does not challenge the sentence imposed for the firearm
charge. He contends that the trial court was not aware that it was imposing
an aggravated range guideline sentence, and therefore abused its discretion.
Gantz concedes that this is a challenge to the discretionary aspects of
the sentence imposed. See Appellant’s Brief, at 6-7. “A challenge to the
discretionary aspects of a sentence must be considered a petition for
permission to appeal, as the right to pursue such a claim is not absolute.”
Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) (citation
omitted). When challenging the discretionary aspects of the sentence
imposed, an appellant must present a substantial question as to the
inappropriateness of the sentence. See Commonwealth v. Tirado, 870
A.2d 362, 365 (Pa. Super. 2005).
“Two requirements must be met before we will review this challenge
on its merits.” McAfee, 849 A.2d at 274 (citation omitted). “First, an
appellant must set forth in his brief a concise statement of the reasons relied
upon for allowance of appeal with respect to the discretionary aspects of a
sentence.” Id. (citation omitted). “Second, the appellant must show that
there is a substantial question that the sentence imposed is not appropriate
under the Sentencing Code.” Id. (citation omitted). That is, “the sentence
violates either a specific provision of the sentencing scheme set forth in the
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Sentencing Code or a particular fundamental norm underlying the sentencing
process.” Tirado, 870 A.2d at 365 (citation omitted).
We examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists. See id. “Our inquiry must focus on
the reasons for which the appeal is sought, in contrast to the facts
underlying the appeal, which are necessary only to decide the appeal on the
merits.” Id. (citation omitted). See also Pa.R.A.P. 2119(f).
In the present case, Gantz’s appellate brief contains the requisite Rule
2119(f) concise statement. Furthermore, he preserved his argument against
the discretionary aspects of his sentence through a post-sentence motion.
Thus, he is in technical compliance with the requirements to challenge the
discretionary aspects of his sentence.
Next, we must determine whether Gantz has raised a substantial
question. Gantz concedes that the sentence imposed is within the
guidelines; his dispute centers on the fact that the sentence is in the
aggravated range of the guidelines. See Appellant’s Brief, at 12. Specifically,
Gantz contends that the trial was unaware that it had imposed an
aggravated range sentence, as it did not acknowledge this fact while
imposing sentence. See id. (“Appellant’s claim on appeal is not primarily
that the sentence is manifestly excessive … but that, where the court is
going to sentence outside the standard range, the record should at least
indicate that the court is aware that it is doing so.”)
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Assuming, without so deciding, that this claim raises a substantial
question, we conclude that Gantz is due no relief. A sentencing court has
broad discretion in fashioning its sentence. See Commonwealth v. Walls,
926 A.2d 957, 962-63 (Pa. 2007). While the court is required to consider the
sentence ranges set forth in the sentencing guidelines, it is not bound by
them. See Commonwealth v. Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007).
Furthermore, where the sentencing court had the benefit of reviewing a PSI,
we must
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.
In order to dispel any lingering doubt as to our intention of
engaging in an effort of legal purification, we state clearly that
sentencers are under no compulsion to employ checklists or any
extended or systematic definitions of their punishment
procedure. Having been fully informed by the pre-sentence
report, the sentencing court's discretion should not be disturbed.
This is particularly true, we repeat, in those circumstances where
it can be demonstrated that the judge had any degree of
awareness of the sentencing considerations, and there we will
presume also that the weighing process took place in a
meaningful fashion. It would be foolish, indeed, to take the
position that if a court is in possession of the facts, it will fail to
apply them to the case at hand.
Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citation
omitted).
Here, the trial court had the benefit of a PSI. Furthermore, the
assistant district attorney presented the correct guideline ranges to the trial
court at the beginning of the sentencing hearing. See N.T., Sentencing,
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2/25/16, at 4. Defense counsel agreed with the prosecutor’s calculation of
the guideline ranges. See id., at 6. Finally, the trial court stated that it had
“taken into account the provisions of the sentencing code.” Id., at 19. Under
these circumstances, we cannot conclude that the trial court was unaware of
the guideline ranges, or that it did not intend to impose an aggravated range
sentence. The trial court was clearly concerned with Gantz’s recidivist nature
and quick return to the narcotics trade after being released from prison on a
previous conviction. See id., at 18-20. This reasoning is sufficient to support
the aggravated range sentence imposed by the trial court. Thus, Gantz’s sole
claim on appeal merits no relief.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/9/2016
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