J-S17028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :   No. 2384 EDA 2017
    DOMINICK FELDER                            :

             Appeal from the Judgment of Sentence June 27, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0011035-2015,
              CP-51-CR-0011036-2015, CP-51-CR-0011037-2015,
              CP-51-CR-0011038-2015, CP-51-CR-0011039-2015,
              CP-51-CR-0011040-2015, CP-51-CR-0011041-2015,
              CP-51-CR-0011042-2015, CP-51-CR-0011116-2015


BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.

MEMORANDUM BY LAZARUS, J.:                                FILED APRIL 02, 2018

       The Commonwealth of Pennsylvania appeals from nine separate

judgments of sentence,1 entered in the Court of Common Pleas of Philadelphia

County, imposing an aggregate sentence of 11½-23 months of imprisonment,

followed by 10 years of probation, upon Appellee, Dominick Felder.        After

careful review, we vacate and remand for resentencing.




____________________________________________


1 See Pa.R.Crim.P. 721 (Procedures for Commonwealth Challenges to
Sentence; Sentencing Appeals).
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      Felder committed nine gunpoint robberies of West Philadelphia pizzerias

from February 2014 through March 2015. The trial court set forth the factual

history of the case as follows:

      On March 31, 2015, Officers Michael Matos and Sean Devlin drove
      by Lebel’s Pizza at 5601 W. Girard Avenue, while on patrol. When
      Officer Matos looked inside he saw employees standing with their
      hands in the air. Both officers approached the restaurant on foot
      and saw Defendant, Dominick Felder, receiving money from a
      female employee while the other employees stood with their
      hands up. When [Felder] left the store, he ignored the officers’
      commands to stop and had to be detained using control holds.
      [Felder] possessed a BB gun and $549[.00], and initially gave the
      police a false name, Jamaal Mickens.

      Approximately two hours after being arrested, [Felder] gave a
      written confession regarding this gunpoint robbery and four
      previous robberies. He denied committing any other robberies.
      About sixteen hours later, [Felder] gave another written
      confession in which he confessed to committing nine gunpoint
      robberies in total.

      [Felder] confessed to the following robberies, in addition to the
      March 13, 2015 robbery:

         1. February 18, 2014: Pete’s Pizza, 1913 N. 54th St.; $600-
            $700 taken from register and manager’s pocket[;]

         2. June 7, 2014: Pete’s Pizza, 1913 N. 54th St.; cell phones
            and unknown amount of cash taken[;]

         3. June 19, 2014: Lebel’s Pizza, 5601 W. Girard Ave.; $500
            taken[;]

         4. November 8, 2014: Robola Pizza, 1999 N. 52nd St.; $500
            taken from register and delivery person[;]

         5. November 8, 2014: Staci’s Pizza, 7404 Drexel Rd.; $150
            taken from register[;]

         6. November 19, 2014: Lebel’s Pizza, 5601 W. Girard Ave.;
            $800 taken from register[;]




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J-S17028-18


           7. November 21, 2014: Yi’s Market, 5941 Haverford Ave.;
              $100 and four cartons of cigarettes taken[; and]

           8. December 1, 2014: Lebel’s Pizza, 5601 W. Girard Ave.;
              $600 taken from register[.]

Trial Court Opinion, 9/25/17, at 2 (citations omitted).

        On June 2, 2016, Felder entered open guilty pleas 2 to nine counts of

robbery (F-1),3 five counts of possession of an instrument of crime (PIC)4 (M-

1), two counts of carrying a firearm without a license,5 and one count of

carrying a firearm on public streets/property in Philadelphia.6 Each robbery

charge carried a maximum sentence of 20 years’ incarceration, 18 Pa.C.S. §

1103(1), and each PIC charge carried a statutory maximum of 5 years’

incarceration, 18 Pa.C.S. § 1104(1).

        The court ordered a presentence investigation report (PSI) prior to

sentencing Felder. The PSI indicated that Felder was arrested eleven times

as a juvenile (the first time at age 14) and adjudicated delinquent nine times

for conspiracy to commit robbery. PSI, 9/2/16. As a result of his juvenile

offenses, Felder was committed to a youth detention center for four years; he

____________________________________________


2 In the instant case, Felder was also initially charged with multiple counts of
theft by unlawful taking and receiving stolen property. However, those
charges were ultimately nolle prossed.

3   18 Pa.C.S. § 3701.

4   18 Pa.C.S. § 907.

5   18 Pa.C.S. § 6106.

6   18 Pa.C.S. § 6108.


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was discharged from placement in December 2007 and placed on probation

until May 2012. As to the current case, Adam Taylor, the investigator who

prepared the PSI, made the following recommendation: “Based on [Felder’s]

juvenile and adult history of committing numerous robberies throughout the

jurisdiction, it appears that he is not amenable to County or community

supervision. He should make himself available to all programs within the state

correctional institutional system.” Id. at 3.

        The court sentenced Felder to nine concurrent terms of 11½ to 23

months’ incarceration for each robbery count, with immediate parole, and a

10-year probationary term for each robbery count, to run concurrently to each

other and consecutive to confinement.7 No further penalties were imposed

for the remaining charges.         At sentencing, the prosecutor objected to the

court’s sentence, asking for reconsideration and claiming that it was too

lenient.    See N.T. Sentencing, 6/27/17, at 25 (“Your Honor, I have to

respectfully ask Your Honor to reconsider. These are nine gunpoint robberies.

A county sentence is wholly inappropriate in this case.”).

        In rendering his sentence and denying the Commonwealth’s request to

reconsider the sentence, the trial judge stated:

        All right. Well, I’ve taken everything into consideration. I think
        that the alcohol led you to the abuse; the things you did. I take
        into consideration strong family ties.      I think you can be
        rehabilitated. You’re only 24 years old. Some options are here to


____________________________________________


7   Felder was also ordered to pay restitution in the amount of $1,644.94.

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      make you a career criminal, and I can send you away for 20 to 40
      years. You’ll come back, and you'll be a career criminal.

      Or I can take a chance at trying to rehabilitate you. I notice that
      you never hurt anybody. A true criminal robs, rapes, shoots,
      pistol whips people, duct tape them. They do all that kind of stuff.
      You've been in jail three years. Two years -- two years and seven
      months -- 27 months.

      I'm going to take a chance on you. I see some good in you. I
      think you can be a good person. And that brother-in-law and that
      sister, I think they're going to keep you straight. I'm going to
      take a chance on you.

N.T. Sentencing, 6/27/17, at 21-22. The court further explained its reasons

for deviating from the guidelines at Felder’s sentencing hearing:

      I -- I deviated from the guidelines because of strong family
      background; the fact that nobody was injured. I’ll say he had a
      gun. And I took into consideration the sentencing memorandum
      I got from the defense. I took into consideration that he didn't
      hurt anybody; didn't duct tape people. He didn’t threaten people.
      He didn’t rape people. He didn’t -- and I think the guy has more
      of a drug issue than anything else. And I took that in – he’s not
      a hardened criminal[.] He’s 24 years[-]old. I think this guy can
      be rehabilitated. I think if we give him the opportunity, I think
      this guy -- with that strong a family background, I think this guy
      can be rehabilitated. I could have put him in jail for 20 years.
      He’d have come out at 44, 50 a hardened criminal[.] Stone cold
      killer, gunpoint robber.     So, I’m taking this opportunity to
      rehabilitate him[.] And that’s why [I] made – that’s why I
      deviated from the guidelines. Ten days to ask me to modify; 30
      days to take an appeal. Now, you come back you get a state hit.

Id. at 26-27. Later, in its Pa.R.A.P. 1925(a) opinion, the trial court further

justified its sentence:

      This [c]ourt did, in fact, consider the guidelines in sentencing
      Defendant. Defendant has a prior record score (“PRS”) of five,
      and Robbery, the lead charge, carries an offense gravity score
      (“OGS”) of ten.      Under the deadly weapons used matrix, the
      guidelines call for a sentence of seventy-eight to ninety months’
      confinement, plus or minus twelve months for aggravating


                                     -5-
J-S17028-18


      circumstances. However this [c]ourt deviated from the guidelines
      based on Defendant’s personal and family history, his acceptance
      of responsibility and remorse, and his confession and guilty plea.
      Specifically, this [c]ourt took into account both defense counsel’s
      and the Commonwealth’s sentencing memoranda, the pre-
      sentence investigation report, the gravity of the crimes involved,
      the effect of the crimes on the community, Defendant’s criminal
      history and familial background, and the deterrent effect of the
      punishment on other potential criminals. Defendant was under
      the influence of alcohol at the time of the latest offense,
      and his alcohol abuse and criminal behavior stem from untreated
      emotional and physical childhood trauma caused by his
      mother and stepfather at a young age. Since Defendant has been
      incarcerated, he has not been written up, has not gotten into any
      fights, and has stayed sober. Defendant also has strong ties to a
      number of family members, especially to his own children, his
      nieces, his sister and brother-in-law, many of whom took the time
      and effort to appear in court to support him and speak on his
      behalf at his sentencing. Defendant has also showed a great deal
      of remorse for his choices and “immediately accepted
      responsibility for his actions” at his first meeting with counsel,
      expressing his desire to stay sober “from this point forward” and
      showing his potential for rehabilitation. This [c]ourt also took into
      account the fact that the weapon used in this case was a BB
      gun, and that Defendant did not injure anyone during the
      commission of the nine robberies. At the time of sentencing,
      Defendant had been incarcerated for twenty-seven months
      already, and the sentence of twenty to forty years requested by
      the Commonwealth would not have given him any chance for
      rehabilitation and reintegration to become a productive member
      of society. Because this [c]ourt explained its reasons for deviating
      from the guidelines, it did not impose an unreasonably lenient
      sentence.

Trial Court Opinion, 9/25/17, at 4-5 (emphasis added).

      The Commonwealth filed a timely notice of appeal and Pa.R.A.P. 1925(b)

statement of errors complained of on appeal, raising the following issue for

our consideration: Did the lower court abuse its discretion where it failed to

protect the public from a dangerous felon and offered flawed reasons for its



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J-S17028-18



volume discount and extreme deviation from the sentencing guidelines in

imposing a mere eleven and one-half month[s’] to twenty-three months’

incarceration for nine gunpoint robberies? Commonwealth’s Brief, at 4.

      The Commonwealth's issue implicates the discretionary aspects of the

sentence imposed by the trial court. We note that:

      The right to appellate review of the discretionary aspects of a
      sentence is not absolute, and must be considered a petition for
      permission to appeal. An appellant must satisfy a four-part test to
      invoke this Court’s jurisdiction when challenging the discretionary
      aspects of a sentence.

      [W]e conduct a four-part analysis to determine: (1) whether
      appellant has filed a timely notice of appeal; (2) whether the issue
      was properly preserved at sentencing or in a motion to reconsider
      and modify sentence; (3) whether appellant’s brief has a fatal
      defect; and (4) whether there is a substantial question that the
      sentence appealed from is not appropriate under the Sentencing
      Code.

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265-66 (Pa. Super. 2014)

(citations omitted).

      Instantly, the Commonwealth’s appeal is timely and its issue was

preserved at sentencing.     See Pa.R.Crim.P. 721(A)(1) (sentencing issues

raised by the Commonwealth at sentencing proceeding shall be deemed

preserved for appeal whether or not Commonwealth elects to file motion to

modify sentence on issues). Furthermore, the Commonwealth has included

in its brief a Pa.R.A.P. 2119(f) statement of reasons relied for allowance of

appeal.   We, therefore, must determine whether the Commonwealth has

presented a substantial question invoking our appellate review. Buterbaugh,

supra.

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      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. Glass, 50 A.3d 720, 727 (Pa. Super. 2012) (internal

quotation marks and citations omitted).       “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.”

Commonwealth v. Gould, 912 A.2d 869, 872 (Pa. Super. 2006) (internal

quotation marks and citations omitted; emphasis in original).

      In its Rule 2119(f) statement, the Commonwealth contends that the trial

court’s sentence fails to protect the public from a repeat, violent felon, see

Commonwealth v. McCain, 176 A.3d 236 (Pa. Super. 2017), and the

reasons offered by the court for the drastically mitigated sentence are not

supported by the record.      Commonwealth v. Dixon, 496 A.2d 802 (Pa.

Super. 1985).     Each of these contentions raises a substantial question, thus,

invoking our appellate review of the Commonwealths’ discretionary aspect of

sentence claim.

      When reviewing the discretionary aspects of a sentence imposed by a

trial court, we are heedful of the following principles.    “The imposition of

sentence is vested in the discretion of the trial court, and should not be

disturbed on appeal for a mere error of judgment but only for an abuse of

discretion and a showing that a sentence was manifestly unreasonable.”

Commonwealth v. Williams, 69 A.3d 735, 740 (Pa. Super. 2013) (citation

                                      -8-
J-S17028-18



omitted). “The proper standard of review for an appellate court is to focus on

the pertinent statutory provisions in the Sentencing Code, specifically 42

Pa.C.S. §[§] 9781(c) and (d), and 42 Pa.C.S. § 9721(b).” Id. at 741 (citation

omitted).

      Section 9781 provides in pertinent part as follows:

      § 9781. Appellate review of sentence

                                 *    *      *

      (c) Determination on appeal.--The appellate court shall vacate
      the sentence and remand the case to the sentencing court with
      instructions if it finds:
                                *  *   *

         (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.

      (d) Review of record.--In reviewing the record the appellate
      court shall 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.

42 Pa.C.S.A. § 9781 (emphasis added). Section 9721 provides in pertinent

part as follow:

      § 9721. Sentencing generally

                                 *    *    *




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       (b) General standards.--In selecting from the alternatives set
       forth in subsection (a), the 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[.] In every case where the court imposes a sentence
       . . . outside the guidelines adopted by the Pennsylvania
       Commission on Sentencing . . ., the court shall provide a
       contemporaneous written statement of the reason or reasons for
       the deviation from the guidelines to the commission[.] Failure to
       comply shall be grounds for vacating the sentence or resentence
       and resentencing the defendant.

42 Pa.C.S.A. § 9721(b).

       Here, the trial court provided a contemporaneous oral statement8

regarding its reasons for deviating from the guidelines. Of significance to the

court was the fact that Felder had already served 27 months in prison at the

time he was being sentenced, so “in effect, he got a state sentence.” N.T.

Sentencing, 6/27/17, at 25. The court noted that Felder has a strong family

support system. The trial judge also believed that the circumstances that led


____________________________________________


8 Although section 9721 states that the court shall provide a contemporaneous
written statement explaining its deviation from the guidelines, our Court has
held that a trial court’s on-the-record statement of reasons for deviating from
the guidelines, stated in the presence of the defendant, satisfies section
9721’s requirement. See Commonwealth v. Royer, 476 A.2d 453 (Pa.
Super. 1984). See also Commonwealth v. Rodda, 723 A.2d 212, 216 (Pa.
Super. 1999) (en banc) (“When imposing sentence, a trial court has rendered
a proper ‘contemporaneous statement’ under section 9721(b) of the
Sentencing Code, so long as the record demonstrates with clarity that the
court considered the sentencing guidelines in a rational and systematic way
and made a dispassionate decision to depart from them.”).



                                          - 10 -
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to Felder becoming a criminal at a young age were created by the terrible

conditions in his home. Finally, the court concluded that Felder’s young age

and remorse for his actions warranted a significantly mitigated sentence.9

       In its brief, the Commonwealth cites to Commonwealth v. McCain,

176 A.3d 236 (Pa. Super. 2017), to support reversal of Felder’s sentence. In

McCain, the defendant was convicted of aggravated assault, conspiracy and

various firearm offenses after he pointed his gun at a victim and then fired

the weapon three times at the ground near the victim, causing him to suffer

serious injuries. McCain was a repeat felon who had a substantial criminal

record. The trial court sentenced McCain to an aggregate sentence of 11½ to

23 months’ imprisonment,10 with immediate parole to house arrest, followed

by seven years of reporting probation and 50 hours of community service. In

explaining his reason for imposing McCain’s sentence, the trial judge noted

that McCain had been turning his life around by doing positive things and being

a productive member of society. The court also noted that it took into account


____________________________________________


9 In its sentencing memorandum, the Commonwealth recommended Felder be
sentenced to 20-40 years’ incarceration, followed by ten years of reporting
probation and restitution. The Commonwealth noted that “the need to protect
the community, the gravity of the offenses, and the defendant’s prior criminal
activity necessitate a sentence of this length.” Commonwealth’s Sentencing
Memorandum, 10/23/16, at 7.

10 In McCain, the court imposed 11½ to 23 months’ imprisonment for the
aggravated assault charge, an 11½ to 23 month concurrent sentence on the
persons not to possess firearms charge, and a two-year consecutive term of
reporting probation for the charge of carrying a firearm on a public street in
Philadelphia.

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J-S17028-18



the fact that McCain had already been in custody for 18 months and that

previously he had successfully been on house arrest while continuing to work.

       On appeal, the Commonwealth argued that McCain’s sentence was

unreasonably lenient and that it failed to protect the public from a violent,

unrepentant, career felon.          Our Court reversed McCain’s sentence and

remanded for resentencing finding that McCain had shot his victim, causing

him to suffer serious injuries requiring surgery, physical therapy and resulting

in long-term pain. Ultimately, our Court concluded that McCain’s sentence

was unreasonably lenient and an abuse of the trial court’s discretion where

his significant criminal history included violent crimes, he had been unable to

abide by the terms of less restrictive punishments, and the trial court’s

reasons for deviating from the guidelines “f[e]ll short of justifying a less-than-

mitigated sentence.” Id. at 243.11 Specifically, our Court noted that the PSI

reflected that McCain:         (1) had three arrests and one adjudication of

delinquency as a juvenile; (2) as an adult, he had 20 arrests resulting in 7

convictions for robbery, rape, simple assault, and a federal firearms offense;

and (3) he had incurred 9 parole/probation violations.         Finally, our Court

____________________________________________


11 We note that at sentencing, the parties misrepresented the appropriate
standard-range of the guidelines for Felder as 78-90 months’ (they listed
Felder’s PRS as 5, when in fact it was 4). Thus, with an offense gravity score
of 10 and the proper PRS of 4, applying the deadly weapons
enhancement/used matrix, the sentencing guidelines called for a standard-
range sentence of 66-78 months’ incarceration (plus or minus 12 months) on
each robbery charge for Felder.



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recognized that a standard-range sentence under the guidelines for an RFEL

with an OGS of 10, like McCain, was 72-84 months of imprisonment in state

prison.

      Instantly, we understand the trial judge’s reticence to sentence Felder

to the lengthy term of imprisonment suggested by the Commonwealth. Felder

is a young man and does appear to have a strong family support system.

However, in sentencing Felder, the court is also obligated to recognize his

extensive criminal activity as a juvenile (having been arrested eleven times

and adjudicated delinquent nine times for conspiracy to commit robbery)

illustrating his apparent inability to rehabilitate, the need to protect the public

from such egregious criminal behavior, and Felder’s significant need to

rehabilitate.

      We acknowledge the well-established precept that when a sentencing

court has reviewed a presentence investigation report, we presume that the

court properly considered and weighed all relevant factors in fashioning the

defendant's sentence.     Commonwealth v. Baker, 72 A.3d 652, 663 (Pa.

Super. 2013). However, when the PSI contains information that the court has

either inadvertently missed or intentionally ignored, we must comment upon

it. In the PSI, the investigator noted that Felder stated: his childhood was

“good,” he received all of life’s necessities (food, clothing and shelter), never

witnessed domestic violence, was never exposed to drug abuse, physical or

sexual abuse, or ever suffered any emotionally traumatic events as a child.

PSI, 9/2/16, at 1.    Despite these statements, the trial judge believed that

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J-S17028-18



Felder’s “alcohol abuse and criminal behavior stem from untreated emotional

and physical childhood trauma.” Trial Court Opinion, 9/25/17, at 4 (emphasis

added). The trial judge also justified its sentence based on the fact that Felder

“did not injure anyone during the commission of the nine robberies” and that

the weapon used in one of the cases “was a BB gun.”               Despite these

observations, we recognize that Felder pled guilty to robbery under section

3701(a)(1)(ii), which is defined as “in the course of committing a theft, [a

defendant] threatens another with or intentionally puts him in fear of

immediate serious bodily injury.” 18 Pa.C.S. § 3701(a)1)(ii). Thus, Felder

admitted to having threatened his victims with immediate serious bodily injury

or having put them in fear of such injury. Moreover, while Felder may have

used a BB gun in the commission of one or some of the nine robberies, it does

not negate the fact that, as he held the BB gun to his victims, they were not

aware that it was anything but a firearm and did not feel any less threatened

or in fear for their lives.

         With regard to the trial court’s recognition that Felder accepted

responsibility for his actions and felt remorse, the record reveals that, at the

time he was arrested by police on the ninth robbery, Felder resisted arrest,

gave an alias, and then did not confess to all nine robberies until sixteen hours

later.    Moreover, it appears that the only reason that Felder’s string of

robberies ended was because he was caught red-handed committing the last

one.




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       While the trial court noted that the guidelines called for a standard-

range sentence of 78-90 months (plus or minus 12 months) on each of Felder’s

robbery counts, this was, in fact, an incorrect statement (based on the wrong

PRS).12 See Commonwealth v. Diamond, 945 A.2d 252 (Pa. Super. 2008)

(sentencing court is required to begin its consideration of sentence from

correct starting point under sentencing guidelines). Additionally, while the

court stated that it reviewed the PSI, the defense sentencing memorandum,

and “took everything into consideration,” the court never iterated in its oral

contemporaneous statement at sentencing that it was aware of the correct

guideline    range    or   “consider[ed        any   guidelines   for   sentencing   and

resentencing adopted by the Pennsylvania Commission on Sentencing.” 42

Pa.C.S. § 9721. Finally, the fact that the trial judge acknowledged in his Rule

1925(a) opinion that he considered Felder’s PRS and OGS, after the

Commonwealth filed its notice of appeal, is too little too late.                     See

Commonwealth v. Styles, 812 A.2d 1277 (Pa. Super. 2002) (court’s

expression for failing to consider or allude to sentencing guidelines in Rule

1925(a) opinion amounted to inadequate statement of reasons stated for

deviation from guidelines under section 9721(b)).


____________________________________________


12 Notably, all parties had the incorrect PRS and, therefore, the wrong
standard-range sentence under the guidelines. While the actual PRS used
recommended an even higher standard-range sentence than the correct one,
the fact remains that trial courts must start from the right point when
sentencing a defendant.



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J-S17028-18



       Here, with an OGS of 10 and correct PRS of 4, applying the deadly

weapons13 enhancement/used matrix,14 the sentencing guidelines called for a

standard-range sentence of 66-78 months’ incarceration (plus or minus 12

months) on each of Felder’s robbery counts. Thus, even a sentence in the

mitigated-range of the guidelines on one robbery count would still be a four

and one-half year minimum sentence. Felder unquestionably has an alcohol

problem, one that took root at a very young age. However, even the defense

acknowledged that “in state custody [Felder] will have [the] opportunity to

participate in programs that will help him address the issues that led to this

serious incident.”     Defendant’s Sentencing Memorandum, 10/17/16, at 12.

Tellingly, the defense also noted that Felder’s actions were so serious that

“they warrant[ed] some period of incarceration.” Id. at 14.



____________________________________________


13A deadly weapon is defined as any firearm, whether loaded or unloaded, or
any device designed as a weapon and capable of producing death or serious
bodily injury, or any other device or instrumentality which, in the manner in
which it is used or intended to be used, is calculated or likely to produce death
or serious bodily injury. 18 Pa.C.S. § 2301. A BB gun qualifies as a deadly
weapon, as defined by section 2301, because it is capable of producing death
or serious bodily injury. Commonwealth v. Ramos, 920 A.2d 1253 (Pa.
Super. 2003).

14 Once a court has determined that a defendant, during the commission of a
crime, possessed a deadly weapon, as defined in section 2301, the court must
increase the suggested sentencing ranges by at least twelve to twenty-four
months. Commonwealth v. Bowen, 612 A.2d 512 (Pa. Super. 1992). The
trial court lacks the discretion to refuse to apply the deadly weapon sentencing
enhancement. Id. The court’s discretion comes into play when it is time to
impose a sentence, once the court determines the adjusted sentencing
guideline range. Id.

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      To sentence Felder to such a lenient sentence is not only an abuse of

discretion and unreasonable in light of the facts of this case, but also a

disservice to him as a troubled individual who needs the structure and

guidance provided by our state correctional institutions.      42 Pa.C.S. §

9781(c)(3). To expect Felder to rehabilitate on his own, even with a familial

support system, is ignoring his past behaviors and likelihood of reoffending,

all the while depreciating the significance of the offenses and the need to

protect the public from such threatening behaviors.

      Judgment of sentence vacated.         Case remanded for resentencing.

Jurisdiction relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/2/18




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