J-S15011-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
COLEY ROBINSON
Appellant No. 1397 EDA 2015
Appeal from the Judgment of Sentence December 19, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s):
CP-51-CR-0000621-2013
CP-51-CR-0014500-2012
CP-51-CR-0014501-2012
BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY BOWES, J.: FILED JUNE 23, 2017
Coley Robinson appeals from the aggregate judgment of sentence of
fourteen to twenty-eight years incarceration1 imposed following his guilty
plea at three criminal cases. The sole claim on appeal pertains to the
discretionary aspects of Appellant’s sentence. We affirm.
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1
The Commonwealth notes that there is a discrepancy between the
sentence announced at the sentencing hearing, which was fourteen to
twenty-eight years imprisonment, and the sentence imposed via written
order, which states that Appellant’s aggregate sentence is twenty and one-
half to forty-two years in jail. Appellant has not asked us to resolve this
conflict, and we observe that he remains free to seek a correction of the
order in as much as it conflicts with the actual sentence imposed. See e.g.
Commonwealth v. Holmes, 933 A.2d 57 (Pa. 2007).
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The instant sentence was imposed after Appellant tendered guilty
pleas at three criminal cases with no agreement to sentence. We briefly
review the facts of each case.
On August 19, 2012, Philadelphia Police officers were dispatched for
reports of gunfire. Police officers observed Appellant enter a vehicle with
multiple bullet holes. Appellant was detained and a search of the vehicle
yielded a loaded firearm. At case number 2013-621, Appellant pleaded
guilty to carrying a firearm without a license and carrying a firearm in public
in Philadelphia.
On September 25, 2012, Appellant announced to a group of three
males that they were being robbed. He pointed a gun at all three men and
demanded money. Two of the men, Ron Rojas and Christian Navarro, gave
Appellant some cash. The third victim, Isiah Durham, who was deaf,
hesitated, and Appellant shot him in the stomach. Mr. Durham survived, but
was taken to the hospital in critical condition. Appellant fled the scene, and
was not apprehended until October 12, 2012.
Appellant was thereafter charged with twenty counts at case number
2012-14500. He entered a guilty plea to the following charges: three counts
of robbery, one for each victim; aggravated assault for shooting Mr.
Durham; simple assault; carrying a firearm without a license; carrying a
firearm in Philadelphia; and possessing an instrument of crime. The
remaining charges were nolle prossed.
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On October 12, 2012, police officers investigated Appellant’s vehicle,
and discovered a firearm along with multiple packets of crack cocaine. At
criminal case 2012-14501, he pleaded guilty to carrying a firearm without a
license, carrying a firearm in Philadelphia, and one count of possession of a
controlled substance.
On December 19, 2014, Appellant appeared for sentencing on all three
cases. He received an identical sentence of two to four years incarceration
at case numbers 2012-14501 and 2013-621, imposed concurrently to the
sentence imposed at case number 2012-14500.
We now review the sentence imposed at 2012-14500, as there is a
discrepancy between the oral calculation and the written order of sentence.
We first set forth the trial court’s oral statements:
THE COURT: . . . As to the aggravated assault in this matter . . .
I follow the Commonwealth’s recommendation of 17 – sorry
seven to 15 years of incarceration, pertaining to Isiah Durham.
As to the robbery of Ron Rojas and Christian Navarro, I am
sentencing two to five years of incarceration. Each [of] these
sentences will run consecutive sorry – two and a half to five. On
the VUFA charge, I will sentence two to four years also
consecutive. The VUFA charges on the other firearms cases will
be two to four concurrent.
The other charges, the simple assault firearm, PIC, will be no
further penalty.
MR. FISHMAN: Just so I’m clear, Your Honor, in advising my
client. Is the aggregate sentence of the court fourteen to
twenty-nine years?
THE COURT: Let me add it up. Yes.
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MR. FISHMAN: Credit for time served.
THE COURT: It’s 14 to 28. Credit for time served.
N.T. Sentencing, 12/19/14, at 49 (emphases added). We note that the
aggregate sentence was correctly calculated by Appellant as fourteen to
twenty-nine years, as the court orally imposed a sentence of seven to fifteen
years of incarceration at the aggravated assault count. Nevertheless, the
trial court then amended its aggregate sentence to fourteen to twenty-eight
years, and, as noted supra, ultimately imposed an aggregate sentence of
twenty and one-half to forty-two years in jail notwithstanding its stated
intent to impose an aggregate sentence of fourteen to twenty-eight years.
Appellant has continuously relied upon the trial court’s oral calculation. “The
aggregate sentence of fourteen (14) to twenty-eight (28) years . . . [was]
unduly harsh[.]” Appellant’s brief at 10.
Following sentencing, Appellant filed a post-sentence motion, and the
post-sentence motion was denied by operation of law. Appellant then filed a
timely notice of appeal and complied with the trial court’s order to file a
Pa.R.A.P. 1925(b) concise statement of matters complained of on appeal,
again relying on the trial court’s oral statements, arguing that the trial court
erred in denying his post-sentence motions “as it relates to the sentence
imposed . . . of fourteen (14) to twenty-eight (28) years[.]” Concise
Statement, 2/17/16, at 1. The trial court issued its opinion in response, and
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the matter is now ready for our review. Appellant raises one issue for our
review.
Did the trial court err in denying post-sentence motions as it
relates to the sentence imposed by imposing an excessive and
manifestly unreasonable aggregate sentence of fourteen (14) to
twenty-eight (28) years, where said sentence was based on
factors already accounted for in the prior record score, the
offense gravity score, the mitigation provided at the sentencing
hearing and failing to provide reasons justifying its manifestly
unreasonable aggregate sentence on the record at the time of
sentencing?
Appellant’s brief at 4.
Appellant’s sole claim concerns the discretionary aspects of
sentencing. When reviewing a criminal sentence, we apply the following
standard of review.
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. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014) (citing
Commonwealth v. Robinson, 931 A.2d 15, 26 (Pa.Super. 2007)).
However, the right to appeal the discretionary aspects of a sentence is not
absolute. We determine whether Appellant has invoked this Court’s
jurisdiction by examining the following four criteria:
(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
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preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief
[complies with] 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).
Commonwealth v. McLaine, 150 A.3d 70, 76 (Pa.Super. 2016) (citing
Commonwealth v. Samuel, 102 A.3d 1001, 1006–07 (Pa.Super. 2014)).
Appellant’s appeal was timely filed and he preserved his claims in the
post-sentence motion to reconsider the sentence. Additionally, Appellant’s
brief complies with Pa.R.A.P. 2119(f). He presents two separate substantial
questions. First, he raises a global sentencing challenge, arguing that the
sentencing court failed to conduct an individualized consideration of
Appellant’s rehabilitative needs and mitigating circumstances, and instead
imposed the sentence solely on the seriousness of the crime and the fact
that the shot victim was deaf. We find that this claim raises a substantial
question, as “an averment that the court sentenced based solely on the
seriousness of the offense and failed to consider all relevant factors raises a
substantial question.” Commonwealth v. Macias, 968 A.2d 773
(Pa.Super. 2009) (citation omitted). Additionally, he separately contends
that the sentence is manifestly excessive for the same reason, i.e., the court
failed to consider mitigating factors in imposing the aggregate sentence, as
the guidelines already accounted for the seriousness of the offenses. We
find that both claims present a substantial question. Commonwealth v.
Johnson, 125 A.3d 822, 826 (Pa.Super. 2015) (excessive sentence claim in
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conjunction with assertion that court failed to consider mitigating factors
raises a substantial question).
In Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007), our Supreme
Court noted that our ability to review a sentence is constrained by 42
Pa.C.S. § 9781(c). The Walls Court stressed the deferential nature of our
examination of any sentence, stating that the “sentencing court is in the
best position to determine the proper penalty for a particular offense based
upon an evaluation of the individual circumstances before it.” Id. at 961
(citation and quotation marks omitted). By statute, we can vacate a
sentence and remand for re-sentencing only if we find 1) that the court
intended to sentence within the guidelines but “applied the guidelines
erroneously;” 2) a sentence was imposed within the guidelines “but the case
involves circumstances where the application of the guidelines would be
clearly unreasonable;” or 3) “the sentencing court sentenced outside the
sentencing guidelines and the sentence is unreasonable.” 42 Pa.C.S. §
9781(c). “In all other cases the appellate court shall affirm the sentence
imposed by the sentencing court.” Id.
Presently, we find that the second of these categories is implicated.
Appellant attempts to argue that the sentence is outside of the guidelines by
ignoring the distinction between the total sentence imposed versus the
individual sentence imposed at the aggravated assault count. “Appellant
submits that there were no aggravating circumstances to justify a sentence
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eighty-four (84) or seventy-two (72) months over the aggravated range of
the sentencing guidelines for the most serious offenses.” Appellant’s brief at
15. Hence, Appellant refers to the total sentence imposed, or, more
accurately, his incorrect calculation of the total sentence imposed, and
compares that total sentence to the aggravated range for the individual
crimes of aggravated assault and/or robbery, which he asserts are “the most
serious offenses.” Appellant’s brief at 13.
However, it is inappropriate to maintain that Appellant’s true sentence
was for “the most serious offense” while ignoring the fact that the aggregate
sentence was achieved through the imposition of consecutive sentences.
The aggravated assault (serious bodily injury) sentence was within the
guidelines, as the parties agreed that the deadly weapon used enhancement
matrix would apply to that charge, which carries an offense gravity score of
eleven. See 204 Pa.Code. § 303.15. Therefore, when paired with
Appellant’s prior record score of zero, the standard range with the
enhancement called for a sentence of fifty-four to seventy-two months, with
an aggravated range of eighty-four months.2 Hence, the sentence of seven
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2
This is how Appellant arrives at his conclusion that his sentence was
manifestly excessive because it was “eighty-four (84) . . . months over the
aggravated range of the sentencing guidelines.” Appellant’s brief at 15. He
has calculated his sentence as imposing a minimum of 168 months (fourteen
years multiplied by twelve), and compares that 168 months to the eighty-
(Footnote Continued Next Page)
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to fifteen years incarceration at that count, while in the aggravated range, is
still within the guidelines. See Commonwealth v. Bowen, 975 A.2d 1120,
1128 (Pa.Super. 2009) (sentence within aggravated range still constitutes a
sentence within the guidelines). Appellant does not argue that any of the
other sentences falls outside of the guidelines for the pertinent offense.3
Hence, we can vacate judgment of sentence only if application of the
guidelines was clearly unreasonable, which “commonly connotes a decision
that is ‘irrational’ or not guided by sound judgment.” Walls, supra at 963.
Additionally, § 9781(d) of the Sentencing Code provides that when we
review the record, we must have regard for:
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
_______________________
(Footnote Continued)
four month aggravated range guideline sentence for the aggravated assault
charge.
3
Since Appellant fails to acknowledge the actual sentence imposed, he does
not mount any challenge whatsoever to the sentences imposed at
possession of an instrument of crime, robbery with respect to Mr. Durham,
and the carrying a firearm in Philadelphia charge.
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42 Pa.C.S. § 9781(d). A sentence can be deemed unreasonable only after
review of these four factors or if the court failed to take into account the
factors outlined in 42 Pa.C.S. § 9721, which states, in relevant part:
[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. The court shall also
consider any guidelines for sentencing and resentencing adopted
by the Pennsylvania Commission on Sentencing and taking effect
under section 2155 (relating to publication of guidelines for
sentencing, resentencing and parole and recommitment ranges
following revocation).1
42 Pa.C.S. § 9721(b).
We now examine the sentence in light of the foregoing standards.
First, we reject Appellant’s claim that the sentencing court imposed its
sentence based solely on the seriousness of the crime. This assertion is
belied by the record. The trial court had the benefit of sentencing
memoranda by both parties as well as a pre-sentence investigation report
(“PSI”). “Where the sentencing court had the benefit of a [PSI], we can
assume the sentencing court was aware of relevant information regarding
the defendant's character and weighed those considerations along with
mitigating statutory factors. Commonwealth v. Moury, 992 A.2d 162, 171
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(Pa.Super. 2010) (quotation marks and citation omitted). 4 Furthermore,
these mitigating facts were heard during argument, as Appellant called
witnesses and offered argument regarding mitigation; to wit, his traumatic
experiences from serving in Iraq and family support. The court cited these
facts when imposing the sentence. Therefore, the trial court weighed the
mitigating factors, just not in the fashion Appellant wished. The trial court
clearly considered the § 9721(b) general standards regarding the need to
protect the public, the gravity of the offense, and the rehabilitative needs of
Appellant.
With respect to the § 9781(d) factors, we likewise cannot deem the
sentence unreasonable. Appellant maintains that this case was no different
than a “normal” aggravated assault. Assuming there can be said to be such
a thing, we disagree with Appellant’s conclusion. Appellant shot a man in
the stomach after robbing two other men at gunpoint. As the trial court
remarked, these circumstances presented a strong case for attempted
murder. Moreover, as noted at sentencing, this was not an isolated criminal
episode, as the instant sentence applied to three separate criminal cases.
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4
Appellant recognizes that the trial court had a PSI, but maintains that this
principle does not apply herein because the trial court, while mentioning the
PSI at sentencing, did not explicitly state it had read it. We do not find this
distinction relevant. We presume that the trial court solemnly performed its
duties and would not ignore the information in the pre-sentence report.
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Appellant was arrested on August 19, 2012 and charged for carrying a
firearm without a license, which resulted in confiscation of that firearm.
Then, on September 25, 2012, he used a separate firearm to commit the
robberies and aggravated assault. The trial court was not obligated to
ignore the fact that Appellant procured a firearm after his arrest for violating
the firearm laws, and we find adequate support for the imposed sentence.
We now turn to Appellant’s second claim, that the aggregate sentence
was excessive. In reality, Appellant is mounting a challenge to the
consecutive nature of the other sentences, which is a separate substantial
question. See Antidormi, supra at 760 (concluding that substantial
question was raised only to the one sentence which fell outside the guideline
range). His excessive sentence claim relies on the assertion that the court
sentenced Appellant due solely to the serious nature of the offense, a claim
which we have rejected.
Absent that allegation, the imposition of consecutive sentences does
not present the type of circumstances in which we would deem the sentence
excessive in light of Appellant’s crimes. We stated in Commonwealth v.
Zirkle, 107 A.3d 127 (Pa.Super. 2014), that
the imposition of consecutive rather than concurrent sentences
lies within the sound discretion of the sentencing court. Long
standing precedent of this Court recognizes that 42 Pa.C.S.A. §
9721 affords the sentencing court discretion to impose its
sentence concurrently or consecutively to other sentences being
imposed at the same time or to sentences already imposed. A
challenge to the imposition of consecutive rather than concurrent
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sentences does not present a substantial question regarding the
discretionary aspects of sentence. We see no reason why [a
defendant] should be afforded a ‘volume discount’ for his crimes
by having all sentences run concurrently.
However, we have recognized that a sentence can be so
manifestly excessive in extreme circumstances that it may
create a substantial question. When determining whether a
substantial question has been raised, we have focused upon
whether the decision to sentence consecutively raises the
aggregate sentence to, what appears upon its face to be, an
excessive level in light of the criminal conduct in this case.
Id. at 133-34 (citations and quotation marks omitted). Zirkle concluded
that a minimum sentence of seventeen years and one month incarceration
for three burglaries and one terroristic threat was not so manifestly
excessive as to present a substantial question.
We do not view this case as one of these extreme circumstances
where the aggregate sentence appears to be excessive in light of the
conduct in this case, for the reasons delineated supra. Hence, upon
reviewing the actual argument advanced in support of this claim, we
conclude that Appellant failed to raise a substantial question justifying a
merits review of the sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/23/2017
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Com. v. Robinson, C.
Combined Opinion