J-S27024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

JOSHUA SCOTT SCHAUER,

                         Appellant                     No. 722 MDA 2015


            Appeal from the Judgment of Sentence March 18, 2015
              In the Court of Common Pleas of Lebanon County
             Criminal Division at No(s): CP-38-CR-0000761-2012

BEFORE: SHOGAN, J., DUBOW, J., and STEVENS, P.J.E.*

DISSENTING MEMORANDUM BY STEVENS, P.J.E.:               FILED JULY 28, 2016

      I respectfully disagree with the esteemed Majority that Appellant,

Joshua Scott Schauer, is entitled to relief with regard to his discretionary

aspects of sentencing claim. The Honorable Samuel A. Kline sufficiently set

forth the reasons for the imposition of Appellant’s sentence, made a fully

informed,   individualized   sentencing   decision,   and   did   not   abuse   his

discretion. Accordingly, I dissent.

      Following Appellant’s conviction on drug-related charges, Judge Kline

imposed a sentence, which included a mandatory minimum sentence

pursuant to 18 Pa.C.S.A. § 6317, drug-free school zone.           On appeal, this

Court held the sentence was improper in light of the U.S. Supreme Court’s

decision in Alleyne v. United States, 133 S.Ct. 2151 (2013), which




*Former Justice specially assigned to the Superior Court.
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rendered Section 6317 unconstitutional, and thus, this Court vacated the

sentence and remanded for resentencing.

      Following the imposition of a new sentence, Appellant filed the instant

appeal presenting a challenge to the discretionary aspects of his sentence.

Specifically, Appellant alleges Judge Kline abused his discretion in sentencing

Appellant to time served (eighteen months) to ten years in prison since he

failed to articulate his reasons for resentencing Appellant in the standard

range. Unlike the Majority, for the following reasons, I conclude Appellant is

not entitled to relief.

      At the initial sentencing hearing on June 26, 2013, Judge Kline

acknowledged receipt of Appellant’s pre-sentence investigation report and

set forth Appellant’s prior criminal history.   N.T., 6/26/13, at 2-3.   Judge

Kline indicated he was “well familiar” with Appellant from an incident where

a person almost died from a heroin overdose and Appellant was present at

the scene. Id. at 8. Judge Kline heard from a defense character witness,

Appellant’s mother, who informed the Judge about Appellant’s volunteer

activities, his counseling efforts, and the severe abuse he suffered at the

hands of his father.      Id. at 6-7.    Additionally, Judge Kline heard from

defense counsel, who informed the Judge that Appellant was enrolled in an

engineering program and has put in more than 500 hours of volunteer

service. Id. at 9. Defense counsel admitted that Appellant is a drug addict

and has gotten many “breaks in the past,” to which Judge Kline replied,


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“[He] [s]ure has.” Id. Furthermore, Judge Kline heard from Appellant, who

admitted he has made “bad decisions[,[]” Id. at 11, and from the district

attorney, who set forth the sentencing guideline ranges. Id. at 12.

       At the conclusion of the initial sentencing hearing, Judge Kline set forth

a detailed statement of Appellant’s case and the reasons for the imposition

of his sentence, including the fact Appellant’s sentence had to be “structured

to address the continued abuse of drugs, and quite frankly protect society.”

Id. at 13. Judge Kline then imposed the following sentence: Count I-PWID1-

two years to ten years in prison, with RRRI eligibility at eighteen months;

Count II-criminal conspiracy2-one year to ten years in prison, with RRRI

eligibility at nine months (concurrent to Count I); Count III-criminal use of a

communication facility3-one year to seven years in prison (concurrent to

Count I); and Count IV-criminal conspiracy4-one year to seven years in

prison (concurrent to Count I). As indicated supra, the sentence included a

mandatory minimum sentence pursuant to Section 6317.

       Appellant appealed and began serving his initial sentence.             In

December 2014, Appellant was released on parole after serving eighteen



____________________________________________


1
  Possession with the intent to deliver a controlled substance (“PWID”), 35
P.S. § 780-113(a)(30).
2
  18 Pa.C.S.A. § 903.
3
  18 Pa.C.S.A. § 7512(a).
4
  18 Pa.C.S.A. § 903.



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months in prison and, on February 24, 2015, a panel of this Court vacated

and remanded for resentencing as a result of Alleyne.

      Upon remand, Judge Kline presided over Appellant’s resentencing

hearing.   At the hearing, defense counsel reminded Judge Kline about the

background of Appellant’s case, including the charges for which he was

convicted and the fact Appellant “is now here for a resentencing on the issue

of constitutional fault in the mandatory minimum sentence.” N.T., 3/18/15,

at 2. Defense counsel waived a recitation of the facts underlying Appellant’s

convictions and informed Judge Kline that Appellant was on parole, having

served eighteen months in prison. Id.

      Judge Kline indicated, “[Appellant] is, as a practical matter, within the

range. He’s already more than done enough time for the minimum. It’s a

perfunctory mater with the sentencing; is that correct?”         Id.   Defense

counsel agreed with Judge Kline. Id.

      Defense counsel then shared with Judge Kline that Appellant “had [a]

successful stay in the state correctional facility.” Id. In this regard, defense

counsel indicated Appellant completed anger management courses, he

attended 360 out of 364 sessions in the drug and alcohol program, and he

received therapeutic treatment. Id. at 3. Defense counsel noted Appellant’s

prison counselor indicated Appellant made progress in identifying his

“various emotions and realizing how they were related to his addiction and

criminal behavior.”   Id.   The counselor further noted Appellant developed


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new coping skills to deal with his emotions, and he has a plan to maintain

his recovery outside of prison. Id.

       Additionally, defense counsel informed Judge Kline that Appellant “has

voluntarily sought outpatient counseling and continues to contend with his

issues, which he has been able to successfully manage so far.” Id. at 3-4.

Defense         counsel   indicated   Appellant’s   state   parole   officer   was

“complimentary” of Appellant, indicating he has had no adjustment

difficulties.    Id. at 4.    Defense counsel requested that Appellant “be off

supervision as soon as possible [as Appellant would] like to pursue

employment with a potential job. . .available to him in Texas.” Id.

       Judge Kline asked Appellant if he would like to make a statement, to

which Appellant responded negatively. Id. Judge Kline then indicated the

case “was remanded on an issue of a mandatory. . .[The Superior Court]

basically just said, okay, the two year mandatory is not permissible.” Id. at

4-5.    Judge Kline noted he read the case law and the Superior Court’s

decision carefully. As a result, Judge Kline said, “So what I’m going to do is

just a technical resentencing.        It’s the same thing only we’ll just do time

served and he’s immediately released on parole. All the other conditions will

remain the same as they would have previously been imposed.” Id. at 5.

Appellant did not object, and the sentencing hearing concluded.

       The subsequent written sentencing order indicated: Count I-PWID-

time served to ten years in prison, with RRRI eligibility at eighteen months;


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Count II-criminal conspiracy-one year to ten years in prison, with RRRI

eligibility at nine months (concurrent to Count I); Count III-criminal use of a

communication facility-one year to seven years in prison (concurrent to

Count I); and Count IV-criminal conspiracy-one year to seven years in

prison, with RRRI eligibility at nine months (concurrent to Count I). The

written sentencing order specifically indicated that “[s]ince [Appellant] has

served the minimum, he is immediately released on parole.”         Trial Court

Order, filed 3/23/15.

      As indicated supra, Appellant now alleges in the instant appeal that

Judge Kline abused his discretion in sentencing Appellant to time served

(eighteen months) to ten years in prison. In this vein, Appellant contends

Judge Kline erred in failing to articulate his reasons for resentencing

Appellant in the standard range. Id.

      It is well settled that “sentencing is a matter vested in the sound

discretion of the sentencing judge, whose judgment will not be disturbed

absent an abuse of discretion.”     Commonwealth v. Ritchey, 779 A.2d

1183, 1185 (Pa.Super. 2001) (citation omitted).        Moreover, there is no

automatic right to appeal with regard to challenges to the discretionary

aspects of sentencing. Id.

            A four-pronged analysis is required before the
      Pennsylvania Superior Court will review the merits of a challenge
      to the discretionary aspects of a sentence. Those prongs are:
      (1) whether the appellant has filed a timely notice of appeal,
      Pa.R.A.P. 902 and 903; (2) whether the issue was properly
      preserved at sentencing or in a motion to reconsider and modify

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      sentence, Pa.R.Crim.P. 720; (3) whether [the] 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. Hyland, 875 A.2d 1175, 1183 (Pa.Super. 2005).

      Initially, with regard to prong one, I agree with the Majority that

Appellant’s instant appeal is untimely; however, I further agree that we

should overlook the untimeliness in light of the trial court’s failure to advise

Appellant of his post-sentence and appellate rights. Similarly, with regard to

prong two, due to the trial court’s failure to advise Appellant, it is

appropriate for this Court to overlook Appellant’s failure to preserve his

discretionary aspects of sentencing claims in a post-sentence motion. As to

prongs three and four, Appellant included a separate Rule 2119(f) statement

in his brief, and the issue raised therein presents a substantial question,

thus invoking our appellate jurisdiction to review his sentencing claim. See

Commonwealth v. Eline, 940 A.2d 421 (Pa.Super. 2007) (holding claim

court did not state adequate reasons on the record for the imposition of

sentence presents substantial question). However, in reviewing the totality

of this case, unlike the Majority, I conclude Appellant’s issue is meritless.

      With regard to Appellant’s specific issue, whether Judge Kline set forth

a sufficient statement of the reasons for the sentence imposed, an en banc

panel of this Court has set forth the following relevant legal precepts:

      The Supreme Court of Pennsylvania has outlined the standard
      which governs whether a sentencing court has properly stated its
      reasons for imposing sentence. . .:

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            Where pre-sentence reports exist, we shall continue
            to 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....
            Having been fully informed by the pre-sentence
            report, the sentencing court's discretion should not
            be disturbed.
     Commonwealth v. Devers, 519 Pa. 88, 101-102, 546 A.2d 12,
     18 (1988). Therefore, this requirement is met if the court states
     on the record that it has consulted a pre-sentence report. Id.
                                  ***
     Moreover, when reviewing sentencing matters, we must accord
     the sentencing court great weight as it is in the best position to
     view the defendant's character, displays of remorse, defiance or
     indifference, and the overall effect and nature of the crime.
     Commonwealth v. Clever, 576 A.2d 1108, 1110 (Pa.Super.
     1990). Where the court's sentencing colloquy “shows
     consideration of the defendant's circumstances, prior criminal
     record, personal characteristics and rehabilitative potential, and
     the record indicates that the court had the benefit of the
     presentence report, an adequate statement of the reasons for
     the sentence imposed has been given.” Commonwealth v.
     Phillips, 601 A.2d 816, 823-24 (Pa.Super. 1992) (citations
     omitted).

Commonwealth v. Brown, 741 A.2d 726, 735-36 (Pa.Super. 1999) (en

banc).

     In the case sub judice, the record reveals Judge Kline was aware of

Appellant’s circumstances, prior criminal history, personal characteristics,

and rehabilitative potential.   Moreover, Judge Kline acknowledged at

Appellant’s initial sentencing hearing that he had reviewed Appellant’s pre-

sentence investigation report, and at the resentencing hearing, defense

counsel provided Judge Kline with information pertaining to Appellant’s

progress in prison and on parole.    Furthermore, during the resentencing

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hearing, Judge Kline stated that he had reviewed this Court’s decision and

was fully aware of the reason for the remand. Judge Kline then specifically

indicated that, in resentencing Appellant, he was not going to consider

Section 6317’s mandatory minimum since it would be impermissible to do

so.

      Unlike    the   Majority, I respectfully   conclude   that Judge   Kline’s

statements made during the resentencing hearing may not be examined in a

vacuum; but rather, his statements, as well as the imposition of Appellant’s

new sentence, must be considered in light of the information available to

him during the initial sentencing hearing, the reasons for this Court’s

vacating and remanding the matter, as well as the supplemental information

provided to him during the resentencing hearing. Simply put, based on the

record, Judge Kline sufficiently set forth the reasons for the imposition of

Appellant’s    new sentence and made a fully informed, individualized

sentencing decision.     Accordingly, I find no abuse of discretion and would

affirm Appellant’s judgment of sentence.




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