J-S57022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

IRIS TURNER

                            Appellant               No. 3400 EDA 2014


           Appeal from the Judgment of Sentence November 4, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0009270-2013


BEFORE: MUNDY, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                              FILED October 6, 2015

        Iris Turner appeals from the judgment of sentence imposed on

November 4, 2014, in the Court of Common Pleas of Philadelphia County.

Turner entered an open guilty plea to charges of burglary, theft by unlawful

taking, receiving stolen property, and conspiracy to commit burglary.1 The

trial court ordered Turner to serve an aggregate term of 13½ to 27 years’

incarceration, concurrent to any other sentence imposed or being served.

Specifically, the trial court sentenced Turner to a term of 5 to 10 years’

incarceration for the burglary charge, 3½ to 7 years’ incarceration for the

theft by unlawful taking charge, and 5 to 10 years’ incarceration for the


____________________________________________


1
    18 Pa.C.S. §§ 3502(a)(4), 3921(a), 3925, and 903, respectively.
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charge of conspiracy to commit burglary, to be served consecutively.2 The

charge of receiving stolen property merged with the charge of theft by

unlawful taking for purposes of sentencing.          See Sentencing Order,

11/4/2014.      On appeal, Turner challenges the discretionary aspects of his

sentence. For the reasons set forth below, we vacate the judgment of

sentence and remand for resentencing.

       The trial court has summarized the facts underlying this appeal, as

follows:

       On or around December 22, 2012, Amtrak began investigating
       the burglary of the Wendy’s restaurant located in 30th Street
       Station in Philadelphia. Investigators reviewed the CCTV video
       and observed a black male entering the property, unlocking the
       door, opening the restaurant safe, and removing money. The
       restaurant manager was unable to identify the man in the video.
       The restaurant reported $8,000 missing as a result of the
       burglary. On January 7, 2013, Iris Turner, Defendant, was
       interviewed in connection with the burglary. [Turner] had been
       employed as a supervisor at the restaurant, and as such had
       keys to the front of the store and the office, and knew the safe
       combination. [Turner] quit his job two days after the burglary
       occurred. Upon completion of the interview, [Turner] was
____________________________________________


2
  We note a discrepancy between the oral and written sentencing order on
the conspiracy charge. The written sentencing order reflects the conspiracy
sentence is 5 to 10 years’ incarceration. See Order, 11/4/2014.

The sentencing transcript, however, reflects the trial court imposed a
sentence of “3½ to 7” years’ incarceration on the conspiracy charge. N.T.,
11/4/2014, at 12. The trial court’s opinion and the parties’ respective
appellate briefs also represent that the conspiracy sentence is 3½ to 7 years’
incarceration. See Trial Court Opinion, 3/10/2015, at 3; Turner’s Brief at 6;
Commonwealth Brief, at 3.




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       arrested due to an outstanding warrant. [Turner] was searched,
       and $797 was found on his person. Further investigation led the
       investigators to obtain a warrant for [Turner’s] phone records.
       The records indicated that [Turner] was at or near 30th Street
       Station at the time of the robbery. Based on that, [Turner] was
       placed under arrest.

Trial Court Opinion, 3/10/2015, at 1–2 (record citations omitted).

       Following the entry of his guilty plea, Turner was sentenced as stated

above. The individual sentences imposed were above the aggravated range

of the Sentencing Guidelines, and were statutory maximum sentences. 3

       Turner filed a timely post-sentence motion for reconsideration in which

he claimed:

    1. The Defendant, Iris Turner, did enter [a] non-negotiated guilty
       plea on October 24, 2013 to Burglary, Conspiracy, Theft, and
       Receiving Stolen Property.

    2. On November 4, 2014 the Honorable Rayford A. Means did
       sentence [Turner] to 5 to 10 years on the Burglary charge, 3 ½
       to 7 on the Theft charge, consecutive, and 5 to 10 on the
       Conspiracy charge, consecutive, for an aggregate sentence of 13
       ½ to 27 years.


____________________________________________


3
  Burglary, 18 Pa.C.S. § 3502(a)(4), is a felony of the second degree,
punishable by not more than 10 years of imprisonment. Theft by Unlawful
Taking, 18 Pa.C.S. § 3921(a), is a felony of the third degree, punishable by
not more than 7 years’ imprisonment. Conspiracy to commit burglary, 18
Pa.C.S. § 903, is subject to the same limitations as the substantive offense,
and therefore punishable by not more than 10 years’ imprisonment.

     The Sentencing Guidelines standard range minimum sentence
recommendation for the charges of burglary, theft, and conspiracy was
between nine and 16 months’ incarceration, with an aggravated range of 19
months. See N.T., 11/4/2014, at 3, 9.



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     3. Since the offense gravity score was 5 and [Turner’s] prior record
        score was 4, the sentencing guidelines recommend a sentence of
        9 to 16 months, plus or minus 3.

     4. The Sentencing Court failed to state on the record a basis for
        such an extreme deviation from the Sentencing Guidelines.

     5. The Sentencing Court did abuse its discretion by imposing an
        unfairly harsh and excessive sentence, especially in light of the
        fact that [Turner] did plead guilty and accept responsibility for
        his crimes.

Motion for Reconsideration/Modification of Sentence, 11/14/2014, at ¶¶1–5.

The trial court denied the motion and this appeal followed.4

        The sole issue raised by Turner in this appeal challenges the

discretionary aspects of his sentence. Specifically, he argues:

        [T]he trial court sentenced [Turner] to twelve (12) to twenty
        four (24) years[’] incarceration for a non-violent property
        crime.[5] The trial court gave no explanation for the extreme
        deviation from the Sentencing Guidelines except to make a
        reference to [Turner’s] lack of remorse since he had declined to
        exercise his right of allocution. However, the court ignored the
        mitigating factor that [Turner] accepted responsibility for his
        crimes by pleading guilty.

                                      ****
        If a court departs from the sentencing recommendations
        contained in the Sentencing Guidelines, it must “provide a
        contemporaneous written statement of the reason or reasons for
        the deviation.” 42 Pa.C.S. § 9721(b); 204 Pa.Code § 303.1(d).
        The trial court did not do so. For this reason alone, [Turner’s]
        sentence must be vacated and remanded for resentencing. In
        addition, [Turner] submits that the trial court abused its
____________________________________________


4
 Turner timely complied with the order of the trial court to file a Pa.R.A.P.
1925(b) statement of errors complained of on appeal.
5
    See Footnote 2, supra.



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      discretion   by   imposing      a    manifestly   excessive     and
      disproportionate sentence.

Turner’s Brief at 11 (record citations omitted).

      When challenging the discretionary aspects of sentencing,

      [the] right to appellate review is not absolute. See
      Commonwealth v. Fiascki, 2005 PA Super 360, 886 A.2d 261,
      263 (Pa. Super. 2005); Commonwealth v. Hoch, 2007 PA
      Super 317, 936 A.2d 515, 518 (Pa. Super. 2007) (“A challenge
      to the discretionary aspects of a sentence must be considered a
      petition for permission to appeal[.]”). The Rules of Appellate
      Procedure mandate that to obtain review of such claims, the
      appellant must include in his brief a Concise Statement of
      Reasons Relied Upon for Allowance of Appeal. See id.; see also
      Pa.R.A.P. 2119(f). The defendant’s Concise Statement must, in
      turn, raise a substantial question as to whether the trial judge, in
      imposing sentence, violated a specific provision of the
      Sentencing Code or contravened a “fundamental norm” of the
      sentencing       process.    See    Fiascki,    886      A.2d     at
      263;     Commonwealth v. Ousley, 392 Pa. Super. 549, 573
      A.2d 599, 601 (Pa. Super. 1990) (citations and internal
      quotation marks omitted) (“[A]ppeals from the discretionary
      aspects of sentence are not to be granted as a matter of course,
      but . . . only in exceptional circumstances where it can be shown
      in the 2119(f) statement that despite the multitude of factors
      impinging on the sentencing decisions, the sentence imposed
      contravenes the sentencing code.”) The determination of
      whether a particular issue poses a substantial question is to be
      made on a case-by-case basis. See Fiascki, 886 A.2d at 263. If
      the Rule 2119(f) statement is absent or if the statement
      provided fails to demonstrate a substantial question, this Court
      may refuse to accept the appeal. See id.

Commonwealth v. Coulverson, 34 A.3d 135, 142 (Pa. Super. 2011).

      Here, Turner has included in his appellate brief a Pa.R.A.P. 2119(f)

concise statement of reasons relied upon for allowance of appeal. Therefore,

we must consider whether Turner has raised a substantial question justifying

our review.


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        In his Rule 2119(f) statement, Turner asserts “the trial court imposed

a sentence unreasonably disproportionate to           his crimes and unduly

excessive.”    Turner’s Brief at 8–9.      Turner claims the sentence is not

appropriate under the Sentencing Code “when one examines the trial court’s

extreme deviation from the Sentencing Guidelines.” Id. at 9. Turner argues

although “the [S]entencing [G]uidelines recommend a sentence of 9 to 16

months, plus or minus 3.       Not only did the trial court impose a sentence

much greater than the [G]uidelines, but then it imposed consecutive

sentences.” Id.

        “Pursuant to 42 Pa.C.S.A. § 9781(c)(3), a claim that the sentencing

court    sentenced   outside   the   sentencing   guidelines   presents   such   a

substantial question.” Commonwealth v. Curran, 932 A.2d 103, 105 (Pa.

Super. 2007), citing Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa.

Super. 2004). See also Commonwealth v. Vega, 850 A.2d 1277, 1280-

1281 (Pa. Super. 2004) (substantial question raised where appellant

asserted his sentence was manifestly excessive in that it was grossly

disproportionate to his crime in light of the facts surrounding the criminal

episode and his background).         Therefore, we proceed to review Turner’s

claim.

        Section 9721(b) of the Sentencing Code requires that in every case

where a sentencing court imposes a sentence outside of the sentencing

guidelines, the court must provide a contemporaneous written statement of

reasons in support of its sentence. 42 Pa.C.S. § 9721(b).             See also

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Commonwealth v. Eby, 784 A.2d 204, 205–06 (Pa. Super. 2001). “This

requirement is satisfied when the court states its reasons for the sentence

on the record and in the defendant’s presence.” Commonwealth v.

Ritchey, 779 A.2d 1183, 1186 (Pa. Super. 2001) (citation omitted).

“[W]hen     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.”                   Commonwealth v.

Rodda, 723 A.2d 212, 216 (Pa. Super. 1999).

       Here, at sentencing, the prosecutor informed the court that the

Sentencing Guideline recommendation with respect to each of Turner’s

crimes was 9 to 16 months’ incarceration for a standard range sentence, and

19 months for an aggravated range sentence, and requested the court to

impose a sentence of incarceration of 1½ to 3 [years], plus 2 [years] on the

burglary and conspiracy charges, to run concurrent with each other. N.T.,

11/4/2014, at 3, 4, 9–10.              Turner’s attorney waived a pre-sentence

investigation report (PSI).6       Id. at 5.           Turner’s counsel advised the court


____________________________________________


6
  The Commonwealth submits that, at sentencing, the trial court confirmed
its review of a pre-sentence report (PSI). See Commonwealth’s Brief at 7
(citing N.T., 11/4/2014, at 3). The record, however, reflects the following
exchange:

(Footnote Continued Next Page)


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Turner had given a statement to police, and admitted his involvement. N.T.,

11/4/2014, at 9.        The sentencing transcript reflects Turner then stated to

the court he had pleaded guilty and accepted responsibility, and requested a

mitigated range sentence. Id. at 9.7             In response, the prosecutor told the

court at the time of his arrest Turner had two detainers for probation

violations on two first-degree felony robbery convictions, and the prosecutor

requested a sentence of incarceration of “1½ to 3, plus 2 for the burglary
                       _______________________
(Footnote Continued)

      [TURNER’S COUNSEL]:              Do    you    need   the   mental   health
      evaluation?

      [COMMONWEALTH COUNSEL]: I’ve reviewed that, Judge.                   I do
      know what the PSI is.

      THE COURT:         Yes.

      [COMMONWEALTH COUNSEL]: Judge, the guidelines are 5, 4. It
      would be – the guidelines are 9 to 16, plus or minus 3.

      For the burglary and conspiracy, the Commonwealth’s offer was
      1½ to 3, plus 2, with restitution.

      THE COURT: All right.

                                  ****
      [TURNER’S COUNSEL]: …. Because the defendant has been in
      custody so long, I’m waiving the rights to PSI today --

N.T., 11/4/2014, at 3, 5 (emphasis added).
7
  Although these statements are ascribed to Turner, it appears that these
statements may have been made by Turner’s attorney.              See N.T.,
11/4/2014, at 9 (for example, “MR. TURNER: I would ask you to sentence
him in the mitigated range. I would ask for a county sentence.”) (emphasis
added).



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[and] conspiracy to run concurrent with each other.” Id. at 10. See also

id. at 4.

      The trial court advised Turner that he had a right to allocution, and

Turner declined to exercise this right. Id. at 11. Thereupon, the trial court

stated: “Okay.     No remorse, no apologies, nothing to help mitigate the

sentence,” and proceeded to impose the sentence. N.T., 11/4/2014, at 11.

      “[I]t is undoubtedly appropriate for a trial court to consider a

defendant’s lack of remorse as a factor at sentencing, provided that it is

specifically considered in relation to protection of the public, the gravity of

the offense, and the defendant’s rehabilitative needs.” Commonwealth v.

Bowen, 975 A.2d 1120, 1125 (Pa. Super. 2009). However, a court may not

consider a defendant’s silence at sentencing as indicative of a lack of

remorse without violating his privilege against self-incrimination. Id., citing

Mitchell v. United States, 526 U.S. 314, 330 (1999) (“The Government

retains the burden of proving facts relevant to the crime at the sentencing

phase and cannot enlist the defendant in this process at the expense of the

self-incrimination privilege.”).

      Here, the court’s finding of lack of remorse was made without

evidencing its consideration of sentencing considerations of protection of the

public, the gravity of the offense, and the defendant’s rehabilitative needs.

It is also unclear whether the court was referencing Turner’s demeanor or

his decision not to exercise his right of allocution.   Furthermore, the trial

court stated no other reasons on the record.

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        While the trial court did provide justification for its sentence outside

the aggravated range of the guidelines in its Pa.R.A.P. 1925(b) opinion, 8 the

court’s after-the-fact reasoning is insufficient to satisfy the mandate of

Section 9721(b).       See Commonwealth v. Warren, 84 A.3d 1092, 1098

(Pa. Super. 2014) (trial court’s attempt to state the factual basis and
____________________________________________


8
    The trial court’s opinion states:

        In the instant case, as stated on the record at the time of
        sentencing, the Defendant's Prior Record Score of 4, combined
        with the Offense Gravity Score of 5 would result in a guideline
        sentence of nine (9) to sixteen (16) months of confinement, with
        an adjustment of plus or minus three (3) months for aggravating
        or mitigating circumstances. N.T. 11/4/2014 at 3. This Court’s
        sentence falls outside of the Sentencing Guidelines, however,
        this Court considered the guidelines in sentencing the defendant,
        but deviated from the guidelines based on the totality of the
        circumstances, including the gravity of the crime involved, the
        need to protect the community, and the rehabilitative needs of
        [Turner]. Of particular concern to this Court was the fact that,
        despite taking responsibility for his actions by pleading guilty,
        [Turner] displayed no remorse for his actions at the time of
        sentencing. Id. at 11. In addition, the record shows that
        [Turner] has a 2006 conviction for Robbery with Threat of
        Serious Bodily Injury, a felony of the first degree, for which he
        received sentence of three (3) to six (6) years confinement, and,
        at the time of his arrest, [Turner] was wanted for violating his
        probation on those cases. Id. at 4. The Defendant's continued
        participation in crimes of theft after such a substantial sentence
        indicates to this Court that Defendant's rehabilitative needs were
        not previously met, and that he will likely continue to be a threat
        to the safety of others. Because this Court explained its reasons
        for deviating from the guidelines, it did not impose an unduly
        harsh sentence.

Trial Court Opinion, 3/10/2014, at 4.




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reasons for deviation from the guidelines in subsequent Pa.R.A.P. 1925(a)

opinion did not ameliorate failure to state reasons for the sentence in court

at the time of sentencing).

      On this record, we conclude the trial court did not provide an adequate

contemporaneous statement as required by Section 9721(b) for a sentence

outside the Sentencing Guidelines. The Sentencing Code specifically states:

      In every case where the court imposes a sentence or resentence
      outside the guidelines …, the court shall provide a
      contemporaneous written statement of the reason or reasons for
      the deviation from the guidelines. Failure to comply shall be
      grounds for vacating the sentence and resentencing the
      defendant.

42 Pa.C.S. § 9721(b) (emphasis added). See also Rodda, supra, 723 A.2d

at 214.   Therefore, we vacate the judgment of sentence and remand for

resentencing.

      Judgment of sentence vacated.         Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2015




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