J-S54011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    SHANE ALLSHOUSE                            :
                                               :
                      Appellant                :   No. 1899 WDA 2016

           Appeal from the Judgment of Sentence November 2, 2016
              In the Court of Common Pleas of Jefferson County
             Criminal Division at No(s): CP-33-CR-0000258-2016


BEFORE:      OTT, J., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                              FILED SEPTEMBER 25, 2017

        Shane Allshouse appeals the judgment of sentence imposed on

November 2, 2016, in the Court of Common Pleas of Jefferson County. A

jury found Allshouse guilty of persons not to possess firearms,1 a felony of

the second degree, and the trial court imposed a sentence of five to ten

years’ imprisonment. The sole issue raised by Allshouse in this appeal is a

challenge to the discretionary aspects of his sentence.         Based upon the

following, we affirm.

        The evidence supporting Allshouse’s conviction was summarized by the

trial court, as follows:


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 6105(a)(1).
J-S54011-17


       [Allshouse] had been convicted of aggravated assault in 2004 and
       was thus statutorily disqualified from possessing a firearm, and
       when [Pennsylvania State] Trooper Seth Rupp went out to
       investigate a reported suicide at [Allshouse’s] residence,
       [Allshouse] informed him that the rifle the victim had used was
       his. … In addition, …, [Allshouse] admitted both elements of the
       offense [18 Pa.C.S. § 6105(a)(1)] in front of the jury, first that he
       had both possessed and used the firearm, and also that he had
       been convicted of aggravated assault. His only defense was
       ignorance of the law, which [is] not a legally cognizable defense
       and which the jury also did not have to believe as a matter of
       fact.1
       _________________________________________
           1
             Whether or not the jurors believed [Allshouse] had not
          been told earlier, they heard that Trooper Rupp had told
          him shortly after the shooting that he could not possess a
          firearm.
       __________________________________________

Trial Court Opinion, 4/24/2017, at 1.

       As already stated, the jury convicted Allshouse of persons not to

possess a firearm, and the trial court sentenced him to five to ten years’

imprisonment.         Allshouse    filed   a   timely   post   sentence   motion   for

reconsideration of sentence, which was denied, and this appeal followed. 2

       At the outset, we state the prerequisites for review of a discretionary

aspects of sentencing claim:

       A challenge to the discretionary aspects of sentencing is not
       automatically reviewable as a matter of right. Commonwealth
       v. Hunter, 2001 PA Super 38, 768 A.2d 1136 (Pa.Super. 2001).
       Prior to reaching the merits of a discretionary sentencing issue:

____________________________________________


2
  Allshouse timely complied with the trial court’s order to file a Pa.R.A.P.
1925(b) statement.



                                           -2-
J-S54011-17


         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.A. § 9781(b).

     Commonwealth v. Evans, 2006 PA Super 132, 901 A.2d 528,
     533 (Pa.Super. 2006) (citations omitted).

                                       ****

         The determination of what constitutes a substantial
         question must be evaluated on a case-by-case basis. 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.

     Commonwealth v. Moury, 2010 PA Super 46, 992 A.2d 162,
     170 (Pa.Super. 2010) (citation, quotation marks, and quotation
     omitted).

Commonwealth v. Grays, ___ A.3d ___, ___ [2017 PA Super 245] (Pa.

Super. July 27, 2017).

     Instantly,    the   appeal   is   timely   and   Allshouse   preserved   the

discretionary aspect of sentencing issue by filing a post sentence motion for

reconsideration.   Further, Allshouse has included in his brief the required

Pa.R.A.P. 2119(f) statement, asserting “A claim that the sentencing court

sentenced within the guidelines but failed to consider the factors set out in

42 Pa.C.S. § 9721(b) presents a substantial question.” Allshouse’s Brief at 5



                                       -3-
J-S54011-17


(citation omitted). Section 9721(b) requires the sentencing court to “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.” 42 Pa.C.S. § 9721(b).        In

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014)

(en banc), this Court held that “[a]rgument that the sentencing court failed

to consider the factors proffered in 42 Pa.C.S. § 9721 does present a

substantial question.” (citation omitted). Accordingly, all the requirements

for review of the discretionary aspects of sentencing claim have been met.

      Our standard of review is well-settled:

         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.

      Additionally, our review of the discretionary aspects of a
      sentence is confined by the statutory mandates of 42 Pa.C.S.[A.]
      §§ 9781(c) and (d). Subsection 9781(c) provides:

         The appellate court shall vacate the sentence and remand
         the case to the sentencing court with instructions if it
         finds:

            (1) the sentencing court purported to sentence
            within the sentencing guidelines but applied the
            guidelines erroneously;

                                     -4-
J-S54011-17


            (2) the sentencing court sentenced within the
            sentencing 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.

         In all other cases[,] the appellate court shall affirm the
         sentence imposed by the sentencing court.

      42 Pa.C.S.[A.] § 9781.

      In reviewing the record, we consider:

         (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.

      42 Pa.C.S.[A.] § 9781(d).

Commonwealth v. Johnson, 125 A.3d 822, 825-27 (Pa. Super. 2015)

(case citations omitted).

      Here, the sentencing guideline recommendations for possession of a

firearm, based upon Allshouse having a prior record score of two, and an

offense gravity score of 10 was 24 months for the mitigated range, 36-48

months for the standard range, and 60 months for the aggravated range.




                                    -5-
J-S54011-17



See Pennsylvania Sentencing Guideline Form, 11/2/2016.3          The statutory

maximum sentence for a felony of the second degree is 10 years’

imprisonment. See 18 Pa.C.S. § 1103(2). Therefore, Allshouse’s 5-10 year

sentence is the statutory maximum and falls in the aggravated range of the

sentencing guidelines. Because the sentence falls within the guidelines, we

review the sentence to determine if the trial court’s application of the

guidelines is “clearly unreasonable.” 42 Pa.C.S. § 9781(c)(2).

       At sentencing, the trial court explained its sentence, addressing

Allshouse, as follows:

       You weren’t allowed by law, as your attorney pointed out; and as
       the jury found, you’re not allowed [to possess a firearm]
       because you have a felony aggravated assault, which also is
       what makes your prior record score a two.          The situation
       regarding firearms charges and why I take them so seriously, I
       mean, regular citizens’ gun rights are under attack constantly;
       and by regular citizens, I mean those that don’t have a criminal
       record or mental health commitment or other things that take
       away the right to bear arms. And in your case, that right was
       taken away even though you continued to possess the gun your
       father gave you at 12. Now, the standard range sentence is
       anywhere from three to four years. I can’t go away from
       sentencing you to total confinement because this is exactly the
       kind of thing the law was meant to prevent people who have
       felonies to possess firearms. And why don’t they want a person
       who’s committed a felony like aggravated assault to possess a
       firearm? Because bad things can happen, and people can get
       killed. In your case, not only did you possess it, you did not
       keep it in a safe manner or with ammo separate; and because of
____________________________________________


3
 See Pennsylvania Sentencing Guidelines Manual (7th edition) (9/25/2015),
204 Pa. Code § 303.15 (“Firearms-persons not to possess: convicted of
enumerated felony (loaded/ammo available) [18 Pa.C.S. § 6105](a.1)(1)”).



                                           -6-
J-S54011-17


     that, a child’s committed suicide, which I am finding is an
     aggravating factor to your case of possession of a firearm. This
     isn’t one where police came in the door because the child was
     acting up and the school [sic] saw the gun and arrested you. In
     that case, I’d probably still go with a standard range or maybe
     mitigated, but it would be at the bottom because I think after
     you’ve already served a year in jail, you’ve got to know you can’t
     have a gun. But I’m finding the aggravated factor that this gun
     was used in a suicide. And I’m going to sentence you to no less
     than five nor more than ten years in a state correctional facility
     with credit for the time you’ve served at any time on this case….

N.T., 11/2/2016, at 5–7.

     Allshouse argues that the trial court’s 5-10 year sentence is “clearly

unreasonable” because “[t]he objectives of [42 Pa.C.S. §] 9721(b) of the

Pennsylvania Sentencing Code could have been achieved without the

imposition of such a lengthy sentence.” Allshouse’s Brief at 6. Additionally,

Allshouse argues that he “and other similarly situated offenders would be

deterred by a mitigated or standard range sentence.”       Id. at 8.      These

arguments are meritless. The Pennsylvania Supreme Court has made clear

that “under the current Sentencing Code there is no requirement that a

sentencing court’s imposition of sentence must be the minimum possible

confinement[.]” Commonwealth v. Walls, 926 A.2d 957, 965 (Pa. 2007).

Consequently, these arguments fail to warrant relief.

     Allshouse further contends a mitigated or standard range sentence is

warranted because: (a) his underlying felony occurred in 2004 and he has

been offense free for 11 or 12 years, (b) he is forty years of age, suffers

from disability (artificial eye, back and cardiac problems) and has family

support, and (c) “[s]uicide on the part of a third party is insufficient and


                                    -7-
J-S54011-17



beyond [Allshouse’s] reasonable foreseeability and control. Commonwealth

v. Basinger, 592 A.2d 1363 (Pa. Super. 1991).” Allshouse’s Brief at 7–8.

Allshouse asserts the trial court “gave death of a third party primary

importance in sentencing while relegating moot mitigating factors including

the fact that [Allshouse’s] underlying felony conviction occurred in 2004 and

involved a domestic dispute, [Allshouse’s] poor health, age (40) and family

support.” Id. at 8.

     The trial court rejected these arguments in its opinion, stating:

     [Allshouse] lists several “mitigating circumstances” he says the
     Court failed to consider at sentencing, but the record does not
     support his claim. On the contrary, the Court reviewed his
     presentence investigation report prior to the hearing and was thus
     familiar with his history. See Commonwealth v. Antidormi, 84
     A.3d 736, 761 (Pa. Super. 2014) (saying that the existence of a
     presentence report creates the presumption that the sentencing
     judge was aware of relevant information regarding the
     defendant’s character and weighed it along with mitigating
     statutory factors). It also presided over his trial, and between it
     and the sentencing hearing, either [Allshouse] or his attorney
     highlighted each of the allegedly mitigating circumstance[s]. He
     now assumes, though, that the Court’s failure to mention them
     equates with a failure to consider them rather than an assessment
     that they did not warrant a lesser sentence, and the record simply
     does not sustain that assumption.

            Nor was it error for the Court to consider the deadly
     outcome of [Allshouse’s] crime. Had he not possessed the rifle,
     and had he not kept it loaded in a highly visible location, easily
     accessible to a 16-[y]ear-old girl who did not know how to
     operate it, she may still be alive today, and her twin sister
     certainly would not have found her dead from its blast. That is
     not to say that [Allshouse] anticipated that outcome. In choosing
     to possess a firearm, however, he chose to accept the very sort of
     risk the legislature purposed to avoid when it enacted 18 Pa.C.S.
     § 6105. See also Sentencing Transcript, 11/[2]/2016, pp. 5-7
     (recording the Court’s contemporaneous explanation for why it

                                    -8-
J-S54011-17


      was imposing the maximum sentence in this case). The Court
      could not overlook that, not because it bore any animosity or ill-
      will toward [Allshouse], but because the egregious consequences
      of his crime called for a more severe penalty.

Trial Court Opinion, 4/24/2017, at 2.

      It is well settled that this Court is not permitted to substitute its

judgment for that of the sentencing court and re-weigh the various

sentencing factors at play in a sentencing decision. Commonwealth v.

Macias, 968 A.2d 773, 778 (Pa. Super. 2009) (“We cannot re-weigh the

sentencing factors and impose our judgment in the place of the sentencing

court.” (citing Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007)).

Furthermore, in the present case, the sentencing court had the benefit of a

presentence report and has also indicated in its opinion that it was aware of

and weighed the mitigating factors; therefore, we are required to presume

that it gave proper consideration and weight to the various factors Allshouse

presented in support of mitigation of the sentence. Macias, supra (citing

Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988)).             Consequently, we

cannot disturb Allshouse’s sentence based on his position that the trial court

should have given greater significance to mitigating factors.

      Furthermore, Allshouse’s argument that “suicide on the part of a third

party is insufficient and beyond [Allshouse’s] reasonable foreseeability and

control,” with citation to Basinger, supra, fails to warrant relief.

      In Basinger, the defendant was driving under the influence (DUI)

when he fatally struck an intoxicated pedestrian who jumped in front of his

vehicle.   The defendant entered a guilty plea to DUI-first offense and was

                                     -9-
J-S54011-17



sentenced to one to two years’ imprisonment. On appeal, this Court found

the trial court, in sentencing the defendant, had speculated on matters that

were not of record, regarding the cause of the accident. Id. at 1367. In

addition, this Court pointed out the trial court had rejected its own credibility

determination accepting the defendant’s testimony that he could not have

avoided the fatal accident. Id. at 1368. Therefore, this Court remanded the

case for resentencing. Id. However, the Basinger Court made clear:

       Our finding today in no way limits a trial judge in imposing a
       maximum sentence when such a sentence can be justified on the
       record. The sound discretion of the trial judge will not be
       overturned by this Court when the reasons for the sentence are
       established on the record and the Sentencing Code or the
       Sentencing Guidelines, when applicable, have been properly
       applied.

Id. at 1367.4

       Here, in contrast to Basinger, the sentence imposed is a fully justified

sentence based upon facts of record.           See N.T., 11/2/2016, at 6, supra

(stating that Allshouse not only possessed the rifle, he did not keep it in a

safe manner and because of that, a child committed suicide). See also Trial

Court Opinion, 4/24/2017, supra at 2. Therefore, we conclude Allshouse is

not entitled to relief on this claim.




____________________________________________


4
 It bears noting that Basinger did not involve the sentencing guidelines.
See id. at 1365–1366.



                                          - 10 -
J-S54011-17



     In sum, we conclude the trial court’s reasons for imposing a sentence

in the aggravated range do not appear to be “clearly unreasonable.”    42

Pa.C.S. § 9781(c)(2). Therefore, we affirm the judgment of sentence.

     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/25/2017




                                  - 11 -
