J-S49024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JOSUE BREBAN,

                            Appellant                  No. 239 MDA 2015


      Appeal from the Judgment of Sentence entered December 18, 2014,
               in the Court of Common Pleas of Dauphin County,
             Criminal Division, at No(s): CP-22-CR-0002014-2014
                         and CP-22-CR-0004812-2014


BEFORE: BENDER, P.J.E., ALLEN, and OLSON, JJ.

MEMORANDUM BY ALLEN, J.:                            FILED AUGUST 20, 2015

        Josue Breban (“Appellant”) appeals from the judgment of sentence

imposed after he pled guilty to one count of burglary and one count of retail

theft.1

        The pertinent facts and procedural history are as follows:

        Docket No. 2014 CR 2014: On March 17, 2014, Appellant and two

co-conspirators entered a house located at 2312 Brookwood Street in

Harrisburg, and took numerous items including a 9 mm pistol, jewelry,

passports, birth certificates, a safe, a checkbook and a bankcard.        N.T.,

10/7/14, at 4. A subsequent police investigation yielded fingerprints which

were run through the Pennsylvania Automated Fingerprint Identification
____________________________________________


1
    18 Pa.C.S.A. §§ 3502(a)(2) and 3929(a).
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System and found to match Appellant’s.          Affidavit of Probable Cause,

3/27/14. Appellant was subsequently arrested, and on October 7, 2014, he

entered an open plea of guilty to burglary.

        Docket No. 4812-2014:       On June 30, 2014, Appellant and Kelly

Bauman entered Giant Foods, and acting jointly, stole $166.69 worth of

meat, poultry, and seafood.        N.T., 12/18/14, at 3.          Appellant was

subsequently arrested and charged with retail theft.       On December 18,

2014, Appellant entered an open plea of guilty to retail theft.

        That same day, on December 18, 2014, a sentencing hearing

commenced at both docket numbers. The trial court sentenced Appellant to

a term of imprisonment of 2½ to 5 years for burglary, and a consecutive 2

years of state supervision for retail theft. Appellant filed a post-sentence

motion on December 23, 2014, which the trial court denied on January 5,

2015. This appeal followed.

        On February 5, 2014, the trial court directed Appellant to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). Appellant complied and on March 2, 2015, the trial court filed a

memorandum opinion in which it stated that its January 5, 2015 order

adequately addressed the allegations of error raised by Appellant.

        On appeal, Appellant presents one issue for our review:

   I.     Whether the trial court erred in denying Appellant’s Post-
          Sentence Motion for Modification of Sentence where
          Appellant’s sentence was excessive and unreasonable in light
          of the alleged gravity of the offense, the protection of the
          public, and Appellant’s rehabilitative needs and where the

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         punitive measures inherent in the sentencing scheme could
         have been accomplished by the imposition of a lesser
         sentence?

      Appellant’s Brief at 5.

      Appellant’s sole issue on appeal is that the trial court abused its

sentencing discretion when it imposed a sentence of 2½ to 5 years for

burglary.

      To reach the merits of a discretionary sentencing issue, we
      conduct a four-part analysis to determine:          (1) whether
      appellant has filed a timely notice of appeal, Pa.R.A.P. 902,
      903; (2) whether the issue was properly preserved at
      sentencing or in a motion to reconsider and modify sentence,
      Pa.R.Crim.P. [708]; (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. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).

      Appellant has preserved his claim by filing a timely post-sentence

motion and notice of appeal. Additionally Appellant has included in his brief

a concise statement pursuant to Pa.R.A.P. 2119(f). Appellant’s Brief at 9-

12.   Therefore, we proceed to determine whether Appellant has raised a

substantial question for our review.

      Appellant argues that the trial court abused its discretion when it

imposed a sentence that “was excessive and unreasonable and constitutes

too severe a punishment”, id. at 9, 15, and which was beyond the

aggravated range of the sentencing guidelines, and in so doing, the trial

court failed to give proper consideration to the appropriate sentencing

factors and failed to state on the record the reasons for the sentence. Id.

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at 9-17.   Such claims raise a substantial question for our review.     See

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

quoting Commonwealth v. Dodge, 77 A.3d 1263, 1272, n.8 (Pa. Super.

2013) (“[A]rguments that the sentencing court failed to consider the factors

proffered in 42 Pa.C.S. § 9721 does present a substantial question, whereas

a statement that the court failed to consider facts of record, though

necessarily encompassing the factors of § 9721, has been rejected.”);

Commonwealth v. Eby, 784 A.2d 204, 206 (Pa. Super. 2001) (“A

substantial question will be found where the defendant advances a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the code or is contrary to the fundamental norms which

underlie the sentencing process. A claim that the sentencing court imposed

an unreasonable sentence by sentencing outside the guideline ranges

presents a ‘substantial question’ for our review.”); Commonwealth v.

Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003) (en banc) (a substantial

question is raised where an appellant alleges that the sentencing court

erred by imposing an aggravated range sentence without consideration of

mitigating circumstances).   We therefore proceed to review Appellant’s

claim.

     “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.”     Commonwealth v. Garcia-Rivera, 983

A.2d 777, 780 (Pa. Super. 2009).

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      More specifically, 42 Pa.C.S.A. § 9721(b) offers the following
      guidance to the trial court's sentencing determination:

            [T]he 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 ... weighing of factors under 42 Pa.C.S. § 9721(b) [is]
      exclusively for the sentencing court, and an appellate court
      could not substitute its own weighing of those factors. The
      primary consideration, therefore, is whether the court imposed
      an individualized sentence, and whether the sentence was
      nonetheless unreasonable for sentences falling outside the
      guidelines, or clearly unreasonable for sentences falling within
      the guidelines, pursuant to 42 Pa.C.S. § 9781(c).

Commonwealth v. Bricker, 41 A.3d 872, 875-876 (Pa. Super. 2012)

(citations omitted).

      Section 9781(c) specifically defines three instances in which the

appellate courts should vacate a sentence and remand: (1) the sentencing

court applied the guidelines erroneously; (2) the sentence falls within the

guidelines, but is “clearly unreasonable” based on the circumstances of the

case; and (3) the sentence falls outside of the guidelines and is

“unreasonable.” 42 Pa.C.S. § 9781(c). Id. at 876 .

      “[T]he term ‘unreasonable’ generally means a decision that is either

irrational or not guided by sound judgment. [A] sentence can be defined as

unreasonable either upon review of the four elements contained in §

9781(d) or if the sentencing court failed to take into account the factors

outlined in 42 Pa.C.S.A. § 9721(b).” Commonwealth v. Daniel, 30 A.3d

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494, 497 (Pa. Super. 2011), quoting Commonwealth v. Walls, 926 A.2d

957 (Pa. 2007). However, “rejection of a sentencing court's imposition of

sentence    on   unreasonableness    grounds    [should]    occur   infrequently,

whether    the   sentence   is   above   or   below   the   guidelines   ranges.”

Commonwealth v. Macias, 968 A.2d 773, 777 (Pa. Super. 2009) quoting

Walls, 926 A.2d at 964.

      Pursuant to 42 Pa.C.S.A. § 9871, an appellate court must have regard

for the following statutory factors in our review of the certified record: (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, and (4) the guidelines

promulgated by the commission. 42 Pa.C.S.A. § 9871(d)(1)-(4).

      “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.        42 Pa.C.S.A. § 9721(b).

However, [t]his requirement is satisfied when the judge states his reasons

for the sentence on the record and in the defendant's presence ... in open

court.”    Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa. Super.

2014).

      [Section 9721(b)] requires a trial judge who intends to sentence
      a defendant outside the guidelines to demonstrate on the

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      record, as a proper starting point, his awareness of the
      sentencing guidelines. Having done so, the sentencing court
      may deviate from the guidelines, if necessary, to fashion a
      sentence which takes into account the protection of the public,
      the rehabilitative needs of the defendant, and the gravity of the
      particular offense as it relates to the impact on the life of the
      victim and the community, so long as he also states of record
      the factual basis and specific reasons which compelled [him] to
      deviate from the guideline range.

                                     ***

      The court's statement of reasons for deviating from the
      guidelines serves not only as a record of the court's rationale for
      the deviation but also as evidence that the court considered the
      guidelines. We cannot analyze whether there are adequate
      reasons for the deviation unless it is first apparent that the
      court was aware of, and considered the guidelines.

Commonwealth v. Johnson, 666 A.2d 690, 693 (Pa. Super. 1995)

(citations omitted).

      Here, for Appellant, who had a prior record score of 3, the guidelines

recommended for burglary a standard range of sentence of 15 to 21

months, an aggravated range sentence of up to 27 months, and a mitigated

range sentence of not less than 9 months. N.T., 8/2/12, at 11. Appellant’s

sentence of 2½ to 5 years (30 to 60 months) fell outside the aggravated

range of the guidelines.

      At the sentencing hearing, the trial court heard from the Assistant

District Attorney, who noted that Appellant was 62 years old and “is

regarded as a vulnerable older person”, and recommended a standard

range sentence. N.T., 12/18/14, at 5-6. The trial court then heard from

Appellant’s counsel, Appellant’s mental health coordinator, Michael Keefer,


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and Appellant’s girlfriend, Kelly Bauman. N.T., 12/18/14, at 5-15. The trial

court – without providing any reasons on the record for its sentence – then

imposed a sentence for burglary of 2½ to 5 years, which is above the

aggravated range of the guidelines. Id. at 16-17.

     “The general principle underlying the imposition of a sentence calls for

the balancing of public protection, the gravity of the offense and,

particularly, the rehabilitative needs of the defendant.    42 Pa.C.S.A. §

9721(b); The only constraints placed on the court's discretion in sentencing

matters are that the sentence imposed must be within the statutory limits;

the record must show that the court considered the sentencing guidelines in

light of the above balancing standard; and, if the court deviates from the

sentencing guidelines, the record must demonstrate a contemporaneous

statement of reasons for the departure.” Commonwealth v. Jones, 272,

640 A.2d 914, 917 (Pa. Super. 1994) (citations omitted).

     The trial court is not bound by the Commonwealth’s sentencing

recommendations, as sentencing is a matter vested in the sound discretion

of the sentencing judge. Garcia-Rivera, 983 A.2d at 780. However, while

sentencing judges have broad discretion, they do not have “unfettered or

unchecked discretion.” Commonwealth v. Monahan, 860 A.2d 180, 182

(Pa. Super. 2004) (citations omitted). Therefore, when a sentence exceeds

the aggravated range of the guidelines and there is an allegation of

excessiveness, this Court must review the record to determine whether

there was an abuse of discretion. Id.

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      Upon review, we agree with Appellant that the reasons for the trial

court’s upward deviation were not clearly stated on the record as required

by section 9721(b) of the Sentencing Code.       The record is devoid of any

statement by the trial court on the record, or contemporaneous written

statement containing the reasons for its departure from the guidelines.

Although the trial court in its order denying Appellant’s post-sentence

motion did set forth various reasons for its sentence, our Court has

regularly “rejected the argument that the failure to state reasons at the

time of sentencing can be remedied by stating them in a later opinion.”

Commonwealth v. Harris, 457 A.2d 572, 574 (Pa. Super. 1983).

      Based on the foregoing, we conclude that the trial court in imposing

its sentence failed to demonstrate that it had adequately considered the

relevant sentencing factors, and failed to state the “factual basis and

specific   reasons”   which   compelled   the   upward   departure   from   the

guidelines. Johnson, supra. Although the trial court referenced the pre-

sentence investigation report, the trial court did not state that it considered

it in deviating from the guidelines, or how Appellant’s circumstances were

so atypical as to warrant imposition of a sentence in excess of the

guidelines.   Also, while the trial court was informed that Appellant had a

prior record, the trial court did not set forth on the record an indication that

it was cognizant of that prior record or the relevant guideline ranges, or

indicate that it was aware of and considered the sentencing guidelines

before electing to depart from them. Nor does the record reflect that, at

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the sentencing hearing, the trial court took into account the relevant

sentencing factors enumerated in § 9721(b) -- including 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 Appellant’s rehabilitative needs.

Accordingly, we are constrained to vacate the judgment of sentence and

remand for re-sentencing.

      Judgment of sentence vacated.        Case remanded for re-sentencing.

Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/20/2015




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