J-S51044-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER WATSON :
:
Appellant : No. 3081 EDA 2016
Appeal from the Judgment of Sentence May 5, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004189-2015
BEFORE: BOWES, SHOGAN, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 29, 2017
Appellant, Christopher Watson, appeals from the judgment of sentence
entered in the Court of Common Pleas of Philadelphia County after he
entered into an open guilty plea to Possession with the Intent to Deliver
(PWID) a controlled substance. Sentenced to an upward departure sentence
that was three months beyond the applicable sentencing guideline’s
aggravated range, Appellant contends the court abused its sentencing
discretion by providing no reason for exceeding the guidelines other than
Appellant’s criminal history, which was already factored in the guideline
range sentences. We affirm.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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On April 4, 2015, plainclothes police officers arrested Appellant after
observing him retrieve two packets of heroin from a large plastic bag within
his car and sell them to a known heroin user. A search of Appellant’s car
incident to his arrest uncovered nearly five hundred dollars and eight
additional packets of heroin. N.T. 1/27/15, at 7-9, 21.
On January 27, 2016, Appellant entered an open guilty plea to PWID
and knowingly or intentionally possessing a controlled substance. At his
sentencing hearing on May 5, 2016, the parties and the court agreed that
Appellant’s offense gravity score of six and prior record score of five resulted
in an applicable standard range guideline sentence of 21 to 27 months’
incarceration, plus or minus six months. N.T. 5/5/16, at 7. Appellant
exercised his right of allocution, wherein he apologized for his conduct and
asked the court to consider mitigating circumstances. N.T. at 2-7. Defense
counsel likewise argued for a mitigating sentence given Appellant’s guilty
plea, remorseful attitude, and good behavior while in custody. N.T. at 7-11.
Prior to imposing sentence, the trial court stated the following:
Mr. Watson, the reason why [the prosecutor’s] comments or her
sentencing memo is long is because your criminal record is long.
I reviewed it and I’m astonished [over] all the crimes that you
have been convicted of since the time you were 11 years old.
You got at least one gun case, possibly two. You got all kinds of
numerous drug convictions.
And domestic violence convictions to the point that the police
were standing there while you hit a female right in front of the
police. I can’t believe such arrogance.
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You were even on my probation there for a while for possession
of a controlled substance. Obviously, probation means nothing
to you. Obviously, looks like a county sentence means nothing
to you. So I’m going to impose a sentence of 3 to 6 years
followed by 5 years’ probation.
N.T. at 15-16.
On May 12, 2016, Appellant filed a Motion for Reconsideration of
Sentence pursuant to Pa.R.Crim.P. 720(A)(1), arguing that the sentence was
above the aggravated range and asking for a “sentence at the low end of the
guidelines.” Post-sentence Motion, 5/12/16 at 2. In support of Appellant’s
motion, he argued that he had voluntarily waived his right to a trial and pled
guilty, his case was a non-violent drug offense, he did not resist arrest, he is
28 years old with only one prior felony from eight years ago, the sentence
“was above the aggravated range of the sentencing guidelines without
sufficient reason,” and the Commonwealth presented stale evidence of his
involvement with a local gang from nearly ten years earlier. Id. at 2-3. On
September 9, 2016, the court denied Appellant’s motion. This timely appeal
followed.
Appellant presents one question for our review:
DID NOT THE TRIAL COURT IMPOSE AN EXCESSIVE AND
UNREASONABLE SENTENCE BY SENTENCING MR. WATSON
IN EXCESS OF THE SENTENCING GUIDELINES WITHOUT
ANY ADEQUATE EXPLANATION, APPARENTLY BECAUSE OF
A FACTOR, MR. WATSON’S PRIOR RECORD, WHICH WAS
ALREADY COUNTED BY THE SENTENCING GUIDELINES?
Appellant’s brief at 3.
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“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,
1064 (Pa.Super. 2011). Before we address a challenge to the discretionary
aspects of sentence, we must determine:
(1) whether the appeal is timely; (2) whether Appellant
preserved his issue; (3) whether Appellant's brief includes a
concise statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of sentence; and
(4) whether the concise statement raises a substantial question
that the sentence is appropriate under the sentencing code.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting
Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)).
Our review of the record shows that Appellant timely filed both a post-
sentence motion, in which he requested reconsideration of his sentence, and
a notice of appeal. However, with respect to whether Appellant’s motion
preserved the specific issue he raises in the present appeal, namely, that the
court departed from the guideline ranges because of a consideration—his
criminal record—already factored in the sentencing guidelines, we observe
that it failed to do so. See supra. Accordingly, we find this aspect to the
present appeal waived.
To the extent appellant argues that the trial court failed to articulate
sufficient reasons on the record for its upward departure from the guidelines,
he raises a substantial question for our review. See, e.g., Commonwealth
v. Griffin, 804 A.2d 1, 8 (Pa.Super. 2002) (citing Commonwealth v. Eby,
784 A.2d 204 (Pa.Super. 2001) (“[T]he sentencing judge must state of
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record the factual basis and specific reasons which compelled him or her to
deviate from the guideline ranges. When evaluating a claim of this type, it is
necessary to remember that the sentencing guidelines are advisory only.”);
Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa.Super.1999) (en banc)
(quoting Commonwealth v. Wagner, 702 A.2d 1084, 1086
(Pa.Super.1997) (“Where the appellant asserts that the trial court failed to
state sufficiently its reasons for imposing sentence outside the sentencing
guidelines, we will conclude that the appellant has stated a substantial
question for our review.”).
However, the record belies such a claim.
When the sentence imposed is outside the sentencing guidelines,
moreover, the court must provide a contemporaneous written
statement of the reason or reasons for the deviation from the
guidelines. This requirement is satisfied when the judge states
his reasons for the sentence on the record and in the defendant's
presence.
Commonwealth v. Widmer, 667 A.2d 215, 223 (Pa.Super. 1995),
reversed on other grounds, 689 A.2d 211 (Pa. 1997) (citations and
quotation marks omitted). “A sentencing court need not undertake a
lengthy discourse for its reasons for imposing a sentence or specifically
reference the statute in question, but the record as a whole must reflect the
sentencing court's consideration of the facts of the crime and character of
the offender.” Id. at 1283.
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Besides considering Appellant’s prior criminal history, the trial court
considered the information in Appellant’s PSI,1 his continuous drug abuse,
and the apparent futility in imposing another county or probationary
sentence. Thus, because Appellant’s criminal record was not the sole factor
in sentencing him outside the Guidelines,2 we find no abuse of discretion in
the court’s sentence.
Judgment of sentence is AFFIRMED.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2017
____________________________________________
1
“Where pre-sentence reports exist, we ... presume that the sentencing
judge was aware of relevant information regarding the defendant's character
and weighed those considerations along with mitigating statutory factors.”
Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009) (quoting
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)).
2
While a trial court may not consider, as the sole reason for increasing a
sentence, factors already included within the Sentencing Guidelines, “[t]rial
courts are permitted to use prior conviction history and other factors already
included in the guidelines if [ ] they are used to supplement other
extraneous sentencing information.” Commonwealth v. Shugars, 895
A.2d 1270, 1275 (Pa.Super. 2006) (emphasis in original) (quoting
Commonwealth v. Simpson, 829 A.2d 334, 339 (Pa.Super. 2003)).
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Com. v. Watson, C.
Combined Opinion