J-S75016-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RYAN CORNELIUS LEONARD                     :
                                               :
                       Appellant               :   No. 463 WDA 2017

             Appeal from the Judgment of Sentence June 27, 2016
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0015735-2015


BEFORE: SHOGAN, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                               FILED FEBRUARY 22, 2018

        Ryan Cornelius Leonard appeals from the judgment of sentence imposed

on June 27, 2016, after he entered a guilty plea to three counts of retail theft,

and one count of conspiracy.1 The trial court sentenced Leonard to a sentence

of 21 to 42 months’ imprisonment, followed by five years’ probation. Leonard

contends the sentence is “manifestly harsh and unreasonable” because the

trial court failed to take into account his rehabilitative needs with regard to

his drug addiction, and relied upon duplicative factors, specifically, his prior

record. Based upon the following, we affirm.

        The trial court has summarized the background of this case, as follows:

           This is an appeal by [Leonard], from a judgment of sentence
        entered on June 27, 2016 after [Leonard] plead[ed] guilty to one
        misdemeanor count of Retail Theft, two felony counts of Retail
____________________________________________


1   18 Pa.C.S. §§ 3921(a)(1) and 903, respectively.
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     Theft and felony Conspiracy on April 18, 2016. On June 27, 2016
     [Leonard] was sentenced to 21 to 42 months of incarceration and
     a consecutive term of 5 years[’] probation. On July 1, 2016
     [Leonard] filed a Motion to Withdraw Guilty Plea which was denied
     on July 12, 2016. On July 26, 2016 [Leonard] filed a Motion to
     Modify Sentence which was denied on August 1, 2016. On March
     21, 2017 a Notice of Appeal was filed with the Superior Court.1 On
     March 29, 2017 an order was entered directing [Leonard] to file
     his Concise Statement of Matters Complained of on Appeal
     pursuant to Pa.R.A.P. § 1925(b)(4). On April 12, 2017, [Leonard]
     filed his Statement of Errors Complained of on Appeal ….

        1  On February 17, 2017 a PCRA Petition seeking
        reinstatement of Defendant's post-sentence motion and
        direct appeal rights was filed and on February 22, 2017 an
        order was entered directing that Defendant's Motion to
        Modify Sentence submitted on July 26, 2016 was accepted
        as having been timely filed and Defendant was granted
        leave of court to file a nunc pro tunc appeal within 30 days.

                                   ****

         This matter arises out of [Leonard’s] arrest following a series
     of retail thefts in October 2015. On April 18, 2016 [Leonard]
     appeared to plead guilty at which time the Commonwealth
     indicated that an agreement had been reached under which the
     Commonwealth was willing to agree to a county sentence which
     was “well below the guidelines” followed by a lengthy period of
     probation, including drug and alcohol treatment, with the
     [Leonard] to pay restitution of $4,587.00.

        The Commonwealth summarized the evidence which
     established that on October 19, 22 and 25, 2015, [Leonard] stole
     multiple home improvement items, having a total value of
     $4,587.00, from the Lowes store in Robinson Township. [Leonard]
     acknowledged that he was guilty of the charges. [Leonard] also
     acknowledged that he completed the Guilty Plea and Explanation
     of Defendant’s Rights forms. As a result of the fact that the
     proposed plea agreement represented a significant departure
     from the guidelines, a pre-sentence report was ordered.

         Sentencing was held on June 27, 2016 and the agreement for
     a county sentence with permission for alternative housing and
     restitution of $4,587.00 was again submitted for consideration.

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     Counsel argued that such a sentence would allow [Leonard] to
     participate in programs that would facilitate his rehabilitation. In
     response, this Court stated that it would not accept the proposed
     plea agreement stating:

         “His guidelines in the mitigated are 21 months. That’s at
         the mitigated range. He is a repeat felon. Why would I give
         him county? The state will supervise him better than I can.”

     Defense counsel, after discussing other charges pending against
     [Leonard], stated:

         “He is not a bad man. He really is not. He just, frankly,
         Your Honor, although I don’t condone it, of course I would
         not condone it, but the stealing had to do with food, not
         drugs. The stealing had to do with just surviving. Not
         condoning it, not saying that Mr. Leonard, even looking
         back now, would say that’s ever the right thing to do. But
         it was not to shoot up or to go trade on the corner for ten
         stamped bags. That wasn’t the case. It was just to
         survive.”

     The following exchange then took place:

         “The Court: Is he RR[R]I eligible?

         Mr. Smith: I think he is eligible.

         The Court: I’m going to send you to the state.

         Ms. Miskovich: Do you want to withdraw your plea?

         [Leonard]: No.” (T., p. 7) (Emphasis added)

     Noting on the record that [Leonard] had a “history of constant
     retail theft, retail theft, retail theft, robbery, retail theft, false I.D.
     to law enforcement, retail theft,” [Leonard] was then sentenced
     to a mitigated range sentence of 21 to 42 months and 5 years
     probation and restitution in the amount of $4,587.00. [Leonard]
     was also found to be RRRI eligible.

Trial Court Opinion, 6/29/2017, at 1-3 (some record citations omitted).




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      The sole claim raised in this appeal is a challenge to the discretionary

aspects of the sentence imposed by the trial court.        A challenge to the

discretionary aspects of a sentence is not absolute, but rather, “must be

considered a petition for permission to appeal.” Commonwealth v. Best, 120

A.3d 329, 348 (Pa. Super. 2015) (citation and internal citation omitted). To

reach the merits of a discretionary issue, this Court must determine:

      whether the appeal is timely; (2) whether Appellant preserved
      [the] issue; (3) whether Appellant’s brief includes a concise
      statement of the reasons relied upon for allowance of appeal with
      respect to the discretionary aspects of sentence; and (4) whether
      the concise statement raises a substantial question that the
      sentence is appropriate under the sentencing code.

Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)

(citation omitted).

      Leonard complied with the procedural requirements for this appeal by

presenting a timely post-sentence motion to modify sentence, a timely notice

of appeal, and by including in his appellate brief a statement of reasons relied

upon for appeal pursuant to Commonwealth v. Tuladziecki, 522 A.2d 17

(Pa. 1987), and Pa.R.A.P. 2119(f). Therefore, we must determine whether he

has raised a substantial question justifying our review.

      A defendant raises a substantial question when he “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. Proctor, 156 A.3d 261, 273 (Pa. Super. 2017) (citation omitted), appeal

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denied, ___ A.3d ___ (Pa. October 10, 2017). Here, Leonard contends his

sentence is contrary to the norms underlying the sentencing process because

the trial court did not consider his rehabilitative needs as required by 42

Pa.C.S. 9721(b). He also contends the trial court relied upon inappropriate

factors by double counting his prior criminal record. We find these claims

raise a substantial question. See Commonwealth v. Buterbaugh, 91 A.3d

1247, 1266 (Pa. Super. 2014) (en banc) (“[A]rguments that the sentencing

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

a substantial question[.]”);Commonwealth v. Goggins, 748 A.2d 721, 728

(Pa. Super. 2000) (stating that double counting the defendant’s prior record

raises a substantial question).2

       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
____________________________________________



2
 We note the Commonwealth’s argument that Leonard waived these issues
by claiming in his motion to modify sentence only that his “criminal history is
predicated solely on the use of heroin” and that “the parties recognized there
was a need for Leonard to undergo sustained drug treatment counseling.” See
Commonwealth Brief at 7, citing, inter alia, Commonwealth v. Tejada, 107
A.3d 788, 799 (Pa. Super. 2015) (holding discretionary aspects claims not
raised at sentencing or in a post-sentence motion are not subject to our
review, even if raised in 1925(b) statement and addressed in the trial court’s
1925(a) opinion). In any event, as will be discussed, no relief is due.




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       judgment for reasons of partiality, prejudice, bias or ill will, or
       arrived at a manifestly unreasonable decision.

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015) (citation

omitted). Here, where the trial court sentenced within the guidelines, we may

only vacate the judgment of sentence if it is “clearly unreasonable.”        42

Pa.C.S. § 9781(c)(2).3

       In this case, Leonard’s prior record score was RFEL, and the offense

gravity score was a 5 for the felony 3 retail theft charges. The mitigated range

was 21 months; the standard range was 24-36 months; and the aggravated

range was 39 months. The trial court imposed a mitigated range sentence

of 21 to 42 months’ imprisonment in a state correctional institution, and a

consecutive 5-year term of probation.4

____________________________________________


3 In determining unreasonableness, there are four factors an appellate court
is to consider when reviewing a sentence:

       (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. § 9781(d).

4The trial court imposed a sentence of 21-42 months’ imprisonment at Count
2, Retail Theft (F3). The court imposed a 5-year term of probation at Count
3, Retail Theft (F3). At Count 1, Retail Theft (M1) and Count 4, Conspiracy



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       Leonard relies on 42 Pa.C.S. § 9721(a), which provides, in relevant part,

that, in imposing sentence, “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.”       Leonard contends the trial court did not address his

rehabilitative needs.       He asserts he requires an intense drug addiction

program, which state prison cannot provide him. He also claims the trial court

did not address the protection of the public and the fact he is not a serious

threat. He claims “[t]he Commonwealth had no objection to[] the imposition

of a sentence below the mitigated range of the guidelines in order to allow Mr.

Leonard to participate in an alternative housing program with drug treatment.”

Leonard’s Brief at 16.

       Leonard further argues that although his prior convictions were

accounted for in the Prior Record Score (PRS) of the guidelines, the court

focused exclusively on his criminal history in declining to accept the plea deal

of a county sentence, and instead imposing a state sentence in the mitigated

range of the guidelines.           Leonard maintains “[a] sentence of county

intermediate punishment, or a county sentence of partial or total confinement,

followed by a term of probation, would have been sufficient to meet the goals


____________________________________________


(F3), the trial court issued a determination of guilty without further
punishment.

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of imposing a sentence that is consistent with [the Section 9721(b) factors].”

Leonard’s Brief at 17.

      Based on our review, we conclude Leonard’s arguments present no basis

upon which to disturb the judgment of sentence.     Because the trial court had

the benefit of a presentence investigation report, it is “presume[d] that the

sentencing judge was aware of relevant information regarding the defendant’s

character and weighed those considerations along with mitigating statutory

factors.”   Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).

Furthermore, “[b]ecause our law requires a sentencing court to consider the

prior criminal record to ascertain a defendant’s amenability to rehabilitation,”

we do not fault the trial court for doing so here. Commonwealth v. Griffin,

804 A.2d 1, 10 (Pa. Super. 2002). Finally, the Pennsylvania Supreme Court

has rejected the notion that a defendant must be sentenced to the minimum

amount of confinement that is consistent with the protection of the public,

gravity of the offense, and rehabilitative needs of the defendant. See

Commonwealth v. Walls, 926 A.2d 957, 965 (Pa. 2007). Accordingly, on

this record, we find no abuse of discretion in the mitigated range 21-42

months’ sentence imposed by the trial court. Therefore, we affirm.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/22/2018




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