J-A05045-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DALE LEROY HANLIN                          :
                                               :
                       Appellant               :   No. 698 WDA 2018

              Appeal from the Judgment of Sentence April 4, 2018
     In the Court of Common Pleas of Jefferson County Criminal Division at
                        No(s): CP-33-CR-0000568-2017


BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.:                           FILED FEBRUARY 04, 2019

       Dale Leroy Hanlin (Appellant) appeals from the judgment of sentence

imposed after he pled guilty to corrupt organizations, conspiracy to commit

possession with the intent to deliver, and two counts of possession with the

intent to deliver.1 We affirm.

       The charges in this case arise from Appellant’s involvement in the

trafficking of crystal methamphetamine into multiple Pennsylvania counties

from a source in Tucson, Arizona, via the United States Postal Service. Based

upon the findings of a grand jury investigation, a criminal complaint against

Appellant was filed on September 22, 2017. On February 20, 2018, Appellant

appeared before the trial court and pled guilty to the above crimes.

____________________________________________


1  18 Pa.C.S.A. § 911(b)(3), 18 Pa.C.S.A. § 903(a)(1)/35 P.S. § 780-
113(a)(30), and 35 P.S. § 780-113(a)(30).
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      On April 4, 2018, the trial court sentenced Appellant to an aggregate 8

to 17 years of incarceration. Appellant filed a timely post-sentence motion,

which the trial court denied. Appellant filed this timely appeal on May 9, 2018.

Both the trial court and Appellant have complied with Pennsylvania Rule of

Appellate Procedure 1925.

      Appellant presents one issue for our review:

      I. WHETHER THE LOWER COURT ABUSED ITS DISCRETION BY
      IMPOSING A SENTENCE THAT IS UNREASONABLY EXCESSIVE
      AND DISPROPORTIONATE TO THE SEVERITY OF THE OFFENSES
      COMMITTED BECAUSE IT: FAILED TO ACCOUNT FOR THE
      REHABILITATIVE NEED OF APPELLANT; FAILED TO CONSIDER
      THE AMOUNT OF CONFINEMENT THAT IS CONSISTENT WITH THE
      PROTECTION OF THE PUBLIC; IS TANTAMOUNT TO A LIFE
      SENTENCE; AND FAILED TO PROPERLY CONSIDER MITIGATING
      FACTORS INCLUDING APPELLANT’S EXTENSIVE COOPERATION?

Appellant’s Brief at 6.

      In his sole issue, Appellant challenges the discretionary aspects of his

sentence. He argues:

            The lower court’s sentence of up to eighteen (18) years of
      incarceration is excessive, unreasonable and disproportionate. On
      his sentencing day [Appellant] was sixty-seven (67) years of age.
      Even though the lower court delivered below mitigated-range
      sentences for three of the four offenses to which [Appellant]
      tendered pleas of guilty (and one mitigated range sentence),
      because the lower court made each sentence consecutive to the
      other it handed down what is tantamount to a life sentence.

            The lower court failed to properly account for the
      rehabilitative needs of [Appellant] and merely focused on the
      serious nature of the crimes committed. The lower court failed to
      properly consider a significant mitigating factor, specifically
      [Appellant’s] extensive cooperation with investigating law
      enforcement and prosecutors which was integral to the


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      Commonwealth’s successful prosecution of [Appellant’s             co-
      defendants].

            A sentence of less time in prison would not minimize the
      severity of the offenses committed by [Appellant]. A lesser
      sentence of incarceration would also comport with the sentencing
      code’s goal for individualized sentencing which is consistent with
      the protection of the public and the rehabilitative needs for
      [Appellant].

Appellant’s Brief at 13-14.

      At the outset, we note that “[t]he right to appellate review of the

discretionary aspects of a sentence is not absolute, and must be considered a

petition for permission to appeal.” Commonwealth v. Buterbaugh, 91 A.3d

1247, 1265 (Pa. Super. 2014). “An appellant must satisfy a four-part test to

invoke this Court’s jurisdiction when challenging the discretionary aspects of

a sentence.” Id. We conduct this four-part test to determine whether:

      (1) the appellant preserved the issue either by raising it at the
      time of sentencing or in a post[-]sentence motion; (2) the
      appellant filed a timely notice of appeal; (3) the appellant set forth
      a concise statement of reasons relied upon for the allowance of
      appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises
      a substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted). “A defendant presents a substantial question when he sets forth a

plausible argument that the sentence violates a provision of the sentencing

code or is contrary to the fundamental norms of the sentencing process.”

Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citations

omitted).




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      Appellant has complied with the first three prongs of this test by raising

his discretionary sentencing claim in a timely post-sentence motion, filing a

timely notice of appeal, and including in his brief a Rule 2119(f) concise

statement. See Appellant’s Brief at 15-17. Therefore, we examine whether

Appellant presents a substantial question.

      Appellant argues that the trial court’s sentence is excessive where it

imposed consecutive sentences while failing to consider multiple mitigating

factors.    Appellant’s Brief at 15-17.   This argument presents a substantial

question. See Commonwealth v. Swope, 123 A.3d 333, 340 (Pa. Super.

2015) (“This Court has also held that an excessive sentence claim—in

conjunction with an assertion that the court failed to consider mitigating

factors—raises a substantial question.”) (citations omitted).          We review

Appellant’s sentencing claim mindful of the following:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge. The standard employed when reviewing the
      discretionary aspects of sentencing is very narrow. We may
      reverse only if the sentencing court abused its discretion or
      committed an error of law. 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. We must accord
      the sentencing court’s decision great weight because it was in the
      best position to review the defendant’s character, defiance or
      indifference, and the overall effect and nature of the crime.

Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (citations

omitted).


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      The relevant portion of 42 Pa.C.S.A. § 9721(b) states:

      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. . . . In every case in which
      the court imposes a sentence for a felony or misdemeanor . . . the
      court shall make as a part of the record, and disclose in open court
      at the time of sentencing, a statement of the reason or reasons
      for the sentence imposed.

Id.

      Here, before imposing Appellant’s sentence, the trial court commented

at length:

            I’m aware of your age from the trial and from the date that
      you pled. I’ll tell you a story. As a trial judge, you get invited to
      these things, and every year, Villanova has a sentencing
      workshop, so they have judges. They have DA’s. They have
      defense attorneys.

            And everybody involved, you copy cases, you have the
      criminal information, and then you have to work through it and
      decide what your sentence is.

            And I remember the first -- I did it twice, but most of these
      law students are twenty-three to twenty-five, and this one fact
      pattern on a defendant who was thirty-two, the law student gave
      him the maximum sentence.

            And when I asked, why did you give him the maximum
      sentence, he said, well, he’s thirty-two. There’s no use -- you
      can’t change anybody after they’re that age.

            And although I say that to be partially humorous, you’re
      certainly the oldest defendant I’ve ever sentenced for a drug
      offense, which, on the one hand, is a mitigating factor. On the
      other hand, it’s an aggravating factor.




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           And you’ve already served two and a half years of federal
     time for cocaine trafficking, and it sounds like, again, some of
     these things can go either way.

            You were doing just fine until you fell off your truck, and you
     can blame this all on another doctor who prescribed you pain
     killers, which makes it mitigating, but also makes it aggravating,
     because you were out of this type of contact.

          You were very forthcoming, both from what the officer said
     when you were caught and what I heard at trial.

           You didn’t hide anything.      You made a very frank
     assessment to Mr. Taylor’s cross-examination saying, yeah, I was
     pretty disgusting.

           I mean, that was before he even got wound up on his cross.
     You just cut right to the chase and realized that -- where your life
     was, is mitigating, but how you got there is aggravating.

          So I paid very close attention to your testimony because I
     knew we would be at this point after the trial one way or the other.

          I mean, the line that you said which took Attorney Sheehan-
     Balchon by surprise was when you said, I suck as a drug dealer.

           Now, I would say, to even more specifically define that, you
     sucked at the business end. You were very good at putting a lot
     of drugs in the community that some people may not have been
     that eager to use or may have been on the wagon, because you’re
     ultimately going to try to push these drugs to make a living.

            I think Kari Stoneberg probably had the most frank
     testimony about your situation when she said, well, I think
     [Appellant] got in with these young girls, they made him feel good,
     and it seems to me that’s where most of your business product
     ended up with the free stuff you were giving away, you know,
     which ultimately led you to being cut off by the dealers above you
     and struggling, almost in a pathetic way, near the end of this wire
     to try to get somebody to give you meth, and you convinced the
     addicts you supplied that you could still get meth.

         So I think I’m going to give you mitigated sentences in
     maybe even more than the mitigated range, but because you pled

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     to four offenses and because you admitted to essentially probably
     hundreds of offenses in your testimony, you know, when you
     talked about individual dealing in your text, I think that at least
     these four should be run consecutively.

                                    *         *   *

           Now, even young people I sentence could have a terrible
     health problem, an accident, and be dead. That sentence is below
     your actuarial life, as an insurance company would rate it, so I
     would say it’s not going to be a life sentence, but only you know.

            I’m giving you those mitigated sentences because of
     your cooperation, but I do think they need to be sentenced one
     to the other. All of the other charges that were filed against you
     will be nol[le] prossed.

N.T., 4/4/18, at 11-14, 15-16 (emphasis added).

     In its opinion, the trial court further explained:

            Here, the [c]ourt ran [Appellant’s] mitigated sentences
     consecutively such that his aggregated minimum was more than
     twice what he thought was “fair.” It did so after plainly articulating
     its reasons, which reflected its consideration of both the relevant
     sentencing factors and the circumstances [Appellant] deemed to
     be mitigating. What it likewise reflected, and what seems to be
     the real cause of [Appellant’s] dissatisfaction, is that he and the
     [c]ourt assigned different values to those factors. [Appellant], for
     instance, viewed his advanced age as cause for a lesser overall
     sentence. The [c]ourt, on the other hand, saw it as more of an
     aggravating factor, because while one typically finds an inverse
     relationship between age and criminality, [Appellant] defied
     conventional wisdom by embarking on a new criminal career in his
     twilight years.

            As for [Appellant’s] cooperation, the [c]ourt specifically
     accounted for it by mitigating his individual sentences. It did not
     further warrant concurrent sentences, however—not when the
     negative impact of his actions in facilitating and promoting the
     distribution of crystal methamphetamine in Jefferson County and
     surrounding areas was so nefarious and far-reaching.




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           In any event, the [c]ourt’s decision to run [Appellant’s]
      sentences consecutively was not the result of its failure to consider
      the mitigating circumstances, some of which were simultaneously
      aggravating, or relevant sentencing factors. The [c]ourt took
      account of each. It simply did not agree with [Appellant’s]
      assessment of their respective values. That did not evidence an
      abuse of discretion, but a difference of opinion.

Trial Court Opinion, 9/11/18, at 1-2 (citations omitted).

      Based on our review of the record, particularly the notes of testimony

from the sentencing hearing, we conclude that the trial court properly

considered the relevant factors when imposing Appellant’s sentence. In fact,

Appellant’s assertions that the trial court failed to consider multiple mitigating

factors is wholly unsupported by the record.         The trial court specifically

discussed Appellant’s age and his cooperation in helping law enforcement

prosecute other factions of his drug trafficking network. For example, the trial

court cites Appellant’s cooperation with law enforcement as the reason why it

gave Appellant mitigated sentences at each count. See N.T., 4/4/18, at 16.

      In sum, our review of the record reveals no error by the trial court in

determining that Appellant’s crimes warranted a sentence of 8 to 17 years of

incarceration. Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/4/2019




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