J-S11034-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
              v.                          :
                                          :
MARKLEM VICKS,                            :
                                          :
                   Appellant              :            No. 3077 EDA 2014

           Appeal from the Judgment of Sentence September 8, 2010
             in the Court of Common Pleas of Philadelphia County,
               Criminal Division, No(s): CP-51-CR-0007622-2008

BEFORE: FORD ELLIOTT, P.J.E, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                           FILED MARCH 29, 2016

        Marklem Vicks (“Vicks”) appeals nunc pro tunc from the judgment of

sentence imposed following his open guilty plea to one count each of

aggravated assault, conspiracy and possession of an instrument of crime.1

We affirm.

        On the night of September 12, 2007, Vicks, along with Sammie

Campbell and Maurice Wilkinson (“Wilkinson”), exited a van at the corner of

5th and Moore Streets and shot Anthony Reid (“Reid”).           Earlier in the

evening, Wilkinson had threatened Reid, a rival heroin dealer.      When the

three men returned later that evening, they were armed with two semi-

automatic handguns and an assault rifle.      They shot at Reid over thirty

times, hitting him four times. Reid suffered serious injuries to his torso, arm




1
    See 18 Pa.C.S.A. §§ 2702(a), 903(a)(1), 907(a).
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and leg. At least 6 other people were on the corner area at the time of the

shooting.

        On April 20, 2010, Vicks pled guilty to the above-mentioned crimes.

On September 8, 2010, the trial court sentenced Vicks to a prison term of 5-

10 years on the aggravated assault conviction, 5-10 years on the conspiracy

conviction, and 2-5 years on the possession of an instrument of crime

conviction, with all sentences to run consecutively. Vicks did not appeal his

judgment of sentence. However, in 2011, Vicks filed a Petition pursuant to

the Post Conviction Relief Act,2 which resulted in the reinstatement of his

direct appeal rights. This timely appeal followed.

        On appeal, Vicks raises the following issues for our review:

        1. Is [Vicks] entitled to a new sentenc[ing] hearing when the
           trial court imposed a sentence outside the sentenc[ing]
           guidelines but did not give any reason for doing this?

        2. Was the mandatory minimum sentence impose[d] by the trial
           court unconstitutional and therefore illegal because[,] under
           the sentencing statute that was applied by the trial court in
           imposing the sentence[,] the judge must make the finding
           that the defendant visibly possessed a firearm by [a]
           preponderance of the evidence[,] not beyond a reasonable
           doubt[,] at sentencing? Is the sentencing statute in this case
           unconstitutional?

Brief for Appellant at 2.

        Generally, upon entry of an guilty plea, a defendant waives all claims

and defenses other than those sounding in the jurisdiction of the court, the

validity of the plea, and what has been termed the “legality” of the sentence

2
    See 42 Pa.C.S.A. §§ 9541-9546.


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imposed.    See Commonwealth v. Eisenberg, 98 A.3d 1268, 1276 (Pa.

2014) (holding that the proper entry of a guilty plea acts to extinguish

virtually all legal challenges that could have been brought upon the trial or

appeal of the case). However, when there are no sentencing restrictions in

the plea agreement, the entry of a guilty plea will not preclude a subsequent

challenge to the discretionary aspects of sentencing. See Commonwealth

v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 2001). Because Vicks entered

an open guilty plea, without sentencing restrictions, he may challenge the

discretionary aspects of his sentence.

      When an appellant challenges the discretionary aspects of his

sentence, we must consider his brief on this issue as a petition for

permission to appeal. Commonwealth v. Yanoff, 690 A.2d 260, 267 (Pa.

Super. 1997); see also Commonwealth v. Tuladziecki, 522 A.2d 17, 18

(Pa. 1987); 42 Pa.C.S.A. § 9781(b).      Prior to reaching the merits of a

discretionary sentencing issue,

      [this Court conducts] 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, [see] 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, [see] 42
      Pa.C.S.A. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation

omitted).



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     In the instant case, Vicks filed a timely Notice of Appeal and included

in his appellate brief a separate Rule 2119(f) statement.        Although the

docket indicates that Vicks filed a timely post-sentence Motion, no such

Motion appears in the certified record. As such, we are unable to determine

whether Vicks preserved his discretionary challenge by raising it in his post-

sentence Motion. Notwithstanding, we will proceed to determine whether he

has presented a substantial question for our review.

     In his first issue, Vicks contends that, at his sentencing hearing, the

trial court failed to state on the record its reasons for imposing a sentence

outside the sentencing guidelines, in violation of 42 Pa.C.S.A. § 9721(b).

Brief for Appellant at 8, 9.    Vicks asserts that the trial court imposed an

unreasonable sentence because Vicks had no crimes of violence or firearms

violations in his background.      Id. at 8.   Vicks points out that his co-

defendant, who also pled guilty, received a lesser sentence of 5-10 years in

prison. Id. at 8. Vicks claims that the fact that the trial court imposed a

sentence less than the lawful maximum does not mean that his sentence is

reasonable.    Id. at 8, 9.   Vick also argues that the trial court improperly

failed to consider his age, family history and rehabilitative needs. Id. at 9.

Vicks contends that the trial court’s imposition of consecutive sentences was

unnecessary.    Id.   Vicks asserts that the trial court’s failure to state its




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reasons for imposing sentence on the record renders his sentence

unreasonable. Id.3

      A claim that the sentencing court imposed a sentence outside the

standard sentencing guidelines without stating adequate reasons on the

record,   presents   a   substantial   question.   See   Commonwealth       v.

Antidormi, 84 A.3d 736, 759 (Pa. Super. 2014).            We will begin by

determining whether Vicks’s aggravated assault sentence fall outside of the

standard sentencing guideline ranges. See id.

      Because Vicks committed his crimes in 2007, his sentencing was

subject to the 6th Edition of the Sentencing Guidelines, which became

effective June 3, 2005. See Commonwealth v. Maneval, 688 A.2d 1198,

1200 (Pa. Super. 1997) (explaining that the applicable guidelines are those

in effect at the time that the offense was committed).           Using those

guidelines, Vick’s offense gravity score for his aggravated assault conviction

was an 11.    See 204 Pa. Code § 303.15; see also Commonwealth v.

Baker, 963 A.2d 495, 511 (Pa. Super. 2008) (explaining that the offense of

aggravated assault (causes serious bodily injury) carries an offense gravity

score of 11). Using the deadly weapon matrix, provided at 204 Pa. Code §

303.18, the standard guideline range for aggravated assault was 54-72

3
  To the extent that Vicks attempts to raise any issues not identified in his
Statement of Questions Presented for Review, we decline to consider such
issues. See Pa.R.A.P. 2116 (providing that “[n]o question will be considered
unless it is stated in the statement of questions involved or is fairly
suggested thereby.”).



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months. See 204 Pa. Code § 303.18. Because Vicks was sentenced to 5-10

years (60-120 months) in prison on his aggravated assault conviction, his

sentence for that crime fell within the standard range of the sentencing

guidelines.   Thus, Vicks has failed to present a substantial question with

regard to his sentence for his aggravated assault conviction.            See

Antidormi, 84 A.3d at 760 n.20.4

      In his second issue, Vicks contends that the mandatory minimum

sentence imposed by the trial court on his conviction for aggravated assault




4
  Even if Vicks’s claim had raised a substantial question, we would have
concluded that his claim lacks merit. Here, the trial court was presented
with a presentence investigation report (“PSI”) and a sentencing
memorandum prepared by the Commonwealth, both of which were
discussed at the sentencing hearing. See N.T., 9/8/10, at 2-4. Additionally,
the Commonwealth presented the facts of the crimes committed by Vicks,
Vicks’s extensive criminal history, including 13 arrests and 6 adjudcations of
delinquency, as well as his failed efforts to rehabilitate himself. See id. at
2-4, 11-16. Further, Vicks’s counsel detailed Vicks’s troubled youth and
upbringing, and his personal attributes. See id. at 4-11. Finally, Vicks
exercised his right of allocution, and expressed his remorse for his crimes.
See id. at 16-18. Prior to imposing sentence, the trial court indicated that
Vicks’s sentence would reflect “everything that was put on the record.” Id.
at 18. Where the sentencing judge had the benefit of a PSI, it will be
presumed that he was aware of relevant information regarding appellant’s
character and weighed those considerations along with the mitigating
statutory factors. Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).
Because the trial court had the benefit of a PSI, we presume that it was
aware of all relevant information regarding Vicks’s character, and weighed
those considerations along with the mitigating statutory factors.         See
Devers, 546 A.2d at 18.



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is illegal because 42 Pa.C.S.A. § 9712(b)5 requires the trial court to find that

Vicks visibly possessed a firearm by using the “preponderance of the

evidence” standard, rather than by using the “beyond a reasonable doubt”

standard. Brief for Appellant at 10. Vicks asserts that, pursuant to Alleyne

v.   United   States,   133   S.   Ct.   2151       (2013),   section   9712(b)   is

unconstitutional.6 Brief for Appellant at 10.

      A challenge to the imposition of a mandatory minimum sentence

constitutes   a   challenge   to   the   legality     of   the   sentence.    See

Commonwealth v. Foster, 17 A.3d 332, 345 (Pa. 2011). A challenge to

the legality of a sentence is never waived so long as a court has jurisdiction

to address the claim. See Commonwealth v. Berry, 877 A.2d 479, 482


5
   Section 9712(a) provides, in relevant part, that “any person who is
convicted … of a crime of violence …, shall, if the person visibly possessed a
firearm or a replica of a firearm, … that placed the victim in reasonable fear
of death or serious bodily injury, during the commission of the offense, be
sentenced to a minimum sentence of at least five years of total confinement
…” 42 Pa.C.S.A. § 9712(a). Subsection (b) provides that “[t]he applicability
of this section shall be determined at sentencing. The court shall consider
any evidence presented at trial and shall afford the Commonwealth and the
defendant an opportunity to present any necessary additional evidence and
shall determine, by a preponderance of the evidence, if this section is
applicable.” 42 Pa.C.S.A. § 9712(b).
6
  In Alleyne, the United States Supreme Court ruled that a fact that
mandatorily increases the range of penalties for a defendant must be
submitted to a fact-finder and proven beyond a reasonable doubt. See
Alleyne,133 S. Ct. 2155. The Alleyne decision, therefore, renders those
Pennsylvania mandatory minimum sentencing statutes that do not pertain to
prior convictions constitutionally infirm insofar as they permit a judge to
automatically increase a defendant’s sentence based on a preponderance of
the evidence standard.



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(Pa. Super. 2005). The question of whether a claim implicates the legality of

a sentence presents a pure question of law. Foster, 17 A.3d at 340 n.13.

Issues relating to the legality of a sentence are reviewed de novo, and our

scope of review is plenary. Commonwealth v. Infante, 63 A.3d 358, 363

(Pa. Super. 2013).

     Here, there is no indication in the record that the Commonwealth

elected to proceed under the mandatory minimum sentencing statute. The

Commonwealth did not notify Vicks prior to sentencing that it would seek the

mandatory minimum.      The written guilty plea colloquy is devoid of any

reference to a mandatory minimum sentence.       At the sentencing hearing,

the Commonwealth acknowledged that “[t]he sentencing guidelines the

Court has to take into consideration are 54 to 72 months with deadly

weapon aggravated assault[,] which is a mandatory of 5 to 10 years,” but

nevertheless requested a 15-year prison sentence for Vicks.7 N.T., 9/8/10,

at 12-13; see also id. (wherein the Commonwealth stated that its request

that the trial court impose a sentence greater than the sentencing guidelines

was based on Vicks’s criminal history, noting Vicks’s 13 arrests and 6




7
  See 204 Pa. Code § 303.18, which was in effect at the time Vicks
committed his crimes.   Section 303.18 has been replaced by section
303.17(b). See 204 Pa. Code § 303.17(b).



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adjudications   of   delinquency).8     At   the   sentencing   hearing,   the

Commonwealth did not request that Vicks be sentenced pursuant to the

mandatory minimum sentencing provisions of 42 Pa.C.S.A. § 9712.9

Further, the trial court did not state that it was imposing a mandatory

minimum sentence when passing sentence upon Vicks. See N.T., 9/8/10, at

18-19. Most importantly, in its sentencing Order, the trial court specifically

indicated that it did not impose a mandatory minimum sentence on Vicks for

his aggravated assault conviction.     See Sentencing Order, 9/8/10, at 2

(unnumbered) (wherein the “No” box is checked under the heading

“Mandatory Sentence.”).10

      Because the record supports the trial court’s consideration of the

sentencing guidelines, including the deadly weapon enhancement, we reject


8
  At the sentencing hearing, Vicks’s counsel specifically requested that the
trial court impose a prison term of 5-10 years on the aggravated assault
conviction. See N.T., 9/8/10, at 8-9, 10; see also id. at 9 (wherein Vicks’s
counsel indicated that a prison sentence of 5-10 years “is a proper sentence
in this case.”).

9
   We note, however, that in its sentencing memorandum, the
Commonwealth indicated that “[t]he Sentencing Guidelines recommend a
sentencing range of 54–72 months for the shooting of [] Reid (OGS–11
[deadly weapon used], PRS–0) and there is a mandatory minimum sentence
of 5–10 years for committing an aggravated assault with a firearm.” See
Memorandum for Sentencing, 6/9/10, at 5.

10
   Even if the trial court’s lack of specificity at the sentencing hearing
regarding the basis for its sentence were to create any uncertainty, such
uncertainty was resolved by the sentencing Order. See Commonwealth v.
Heredia, 97 A.3d 392, 395 n.5 (Pa. Super. 2014) (explaining that “the text
of the sentencing order is determinative of the court’s sentencing intentions
and the sentence imposed.”).


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Vicks’s assertion that the trial court imposed sentence under 42 Pa.C.S.A.

§ 9712(a). Under the sentencing guidelines, Vicks’s use of a deadly weapon

increased the recommended sentencing ranges, which the trial court was

free to accept or reject. See Commonwealth v. Yuhasz, 923 A.2d 1111,

1118 (Pa. 2007) (explaining that the sentencing guidelines are purely

advisory in nature, and do not alter the legal rights or duties of the

defendant).   Because the trial court did not sentence Vicks based on the

mandatory sentencing statute, his sentence is not illegal on that ground.

See Commonwealth v. Zeigler, 112 A.3d 656, 662 (Pa. Super. 2015);

see also Commonwealth v. Buterbaugh, 91 A.3d 1247, 1269 n.10 (Pa.

Super. 2014) (explaining that, because the sentencing court used the deadly

weapon enhancement rather than the mandatory minimum, Alleyne was

not implicated). For this reason, Vicks’s second claim lacks merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/29/2016




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