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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 :     IN THE SUPERIOR COURT OF
                                             :           PENNSYLVANIA
                      v.                     :
                                             :
THEODORE WOODALL,                            :          No. 1460 EDA 2018
                                             :
                           Appellant         :


            Appeal from the Judgment of Sentence, December 11, 2017,
               in the Court of Common Pleas of Philadelphia County
                 Criminal Division at No. CP-51-CR-1208311-2003


BEFORE: STABILE, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                         FILED JULY 11, 2019

        Theodore Woodall appeals from the December 11, 2017 judgment of

sentence entered by the Court of Common Pleas of Philadelphia County

following appellant’s convictions of two counts of aggravated assault and one

count each of carrying firearms on public streets or public property without a

license in Philadelphia and possessing instruments of crime.1

        A    jury   convicted   appellant   of   the   aforementioned   crimes   on

September 23, 2004.         On November 22, 2004, the trial court sentenced

appellant to an aggregate term of 21 to 42 years’ imprisonment. Appellant

did not file any post-sentence motions. On December 29, 2004, appellant

filed a pro se notice of appeal to this court, which we quashed as untimely




1   18 Pa.C.S.A. §§ 2702(a), 6108, and 907(a), respectively.
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filed.    See Commonwealth v. Woodall, No. 148 EDA 2005, unpublished

memorandum (Pa.Super. filed December 29, 2004).

         Appellant filed a pro se petition pursuant to the Post Conviction Relief

Act (“PCRA”)2 on October 24, 2005.         The trial court ultimately dismissed

appellant’s petition without a hearing on September 22, 2006.          Appellant

appealed the dismissal of his petition to this court on October 23, 2006. We

vacated the PCRA court’s dismissal and remanded so that counsel could be

appointed.       See Commonwealth v. Woodall, No. 3298 EDA 2006,

unpublished memorandum (Pa.Super. filed November 16, 2010). On remand,

the trial court reinstated appellant’s direct appeal rights nunc pro tunc on

February 20, 2013. Appellant filed a direct appeal of his judgment of sentence

on February 21, 2013.        We affirmed appellant’s judgment of sentence on

July 2, 2014. See Commonwealth v. Woodall, 105 A.3d 781 (Pa.Super.

2014) (unpublished memorandum).          Our supreme court denied appellant’s

petition for allowance of appeal on November 13, 2014. See Commonwealth

v. Woodall, 104 A.3d 4 (Pa. 2014).

         Appellant filed a petition pursuant to the PCRA on February 12, 2015,

which the trial court dismissed. Appellant appealed the dismissal of his PCRA

petition to this court.    We vacated appellant’s judgment of sentence and

remanded so that appellant could be resentenced without consideration of the

mandatory minimum sentencing provision of 42 Pa.C.S.A. § 9712 pursuant to


2   42 Pa.C.S.A. §§ 9541-9546.


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Alleyne v. United States, 570 U.S. 99 (2013), and its progeny.               See

Commonwealth v. Woodall, 168 A.3d 363 (Pa.Super. 2017) (unpublished

memorandum). The trial court held a re-sentencing hearing on December 11,

2017, during which it sentenced appellant to an aggregate term of 21 to

42 years’ imprisonment.

      Appellant filed a timely post-sentence motion on December 21, 2017,

which the trial court denied by operation of law on April 20, 2018. On May 17,

2018, appellant filed a timely notice of appeal to this court. The trial court did

not order appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b), nor did it file an opinion pursuant to

Pa.R.A.P. 1925(a).

      Appellant presents the following issue for our review:

            Did the [trial court] err in failing to state on the record
            any reasons for deviating from the sentencing
            guidelines other than to say that it was re-imposing
            the sentence of the previous judge?

Appellant’s brief at 9.

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


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            Commonwealth v. Hoch, 936 A.2d 515, 517-18
            (Pa.Super. 2007) (citation omitted).

            The right to appellate review of the discretionary
            aspects of a sentence is not absolute, and must be
            considered a petition for permission to appeal. See
            Hoch, 936 A.2d at 518 (citation omitted).           An
            appellant must satisfy a four-part test to invoke this
            Court's jurisdiction when challenging the discretionary
            aspects of a sentence.

                  [W]e conduct a four-part analysis to
                  determine: (1) whether appellant has
                  filed a timely notice of appeal;
                  (2) whether the issue was properly
                  preserved at sentencing or in a motion to
                  reconsider    and    modify     sentence;
                  (3) whether appellant's brief has a fatal
                  defect; and (4) whether there is a
                  substantial question that the sentence
                  appealed from is not appropriate under
                  the Sentencing Code.

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

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014), appeal

denied, 117 A.3d 297 (Pa. 2015), quoting Commonwealth v. Buterbaugh,

91 A.3d 1247, 1265-1266 (Pa.Super. 2014), appeal denied, 104 A.3d 1 (Pa.

2014).

      Here, appellant timely filed a notice of appeal, preserved his issues in a

post-sentence motion, and included a Pa.R.A.P. 2119(f) statement in his brief.

We must now determine whether appellant raised a substantial question. “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


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contrary   to   the    fundamental   norms    of   the   sentencing    process.”

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

denied, 91 A.3d 161 (Pa. 2014), quoting Commonwealth v. Naranjo, 53

A.3d 66, 72 (Pa.Super. 2012) (citations and internal quotation marks

omitted). Here, appellant avers that the trial court deviated substantially from

the sentencing guidelines. (Appellant’s brief at 15.) We find that appellant

has raised a substantial question, and we will proceed to consider appellant’s

issue on its merits.

            The sentencing court is permitted to deviate from the
            sentencing guidelines; however, the court must place
            on the record its reasons for the deviation.
            42 Pa.C.S.A. § 9721(b); Commonwealth v. Byrd, []
            657 A.2d 961 ([Pa.Super.] 1995). In sentencing
            outside of the guidelines, the court must demonstrate
            that it understands the sentencing guidelines ranges.
            Id.; Commonwealth v. Johnson, [], 666 A.2d 690
            ([Pa.Super.] 1995); Commonwealth v. Frazier, [],
            500 A.2d 158 ([Pa.Super.] 1985); Commonwealth
            v. Royer, [] 476 A.2d 453 ([Pa.Super.] 1984). Where
            the trial judge deviates from the sentencing guidelines
            . . . he must set forth on the record, at sentencing, in
            the defendant’s presence, the permissible range of
            sentences under the guidelines and, at least in
            summary form, the factual basis and specific reasons
            which compelled the court to deviate from the
            sentencing range. Commonwealth v. Royer, [] 476
            A.2d [453,] 457 [(Pa.Super. 1984)].

Commonwealth v. Garcia-Rivera, 983 A.2d 777, 780 (Pa.Super. 2009).

      Here, the trial court imposed the following sentence: 7½ to 15 years’

incarceration for two counts of aggravated assault, 3½ to 7 years’

incarceration for carrying firearms on public streets or public property in



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Philadelphia, and 2½ to 5 years’ incarceration for the possessing an

instrument of crime conviction. (Notes of testimony, 12/11/17 at 70.) The

trial court ordered appellant’s sentences to run consecutively, thereby

imposing an aggregate sentence of 13½ to 27 years’ imprisonment. (Id.)

      Appellant specifically contends that the trial court abused its discretion

because it “did not consider the guidelines and did not state any reasons for

the deviation.” (Appellant’s brief at 18.) Appellant, however, failed to include

any discussion as to how appellant’s sentence compares to the sentencing

guidelines or how the trial court deviated from the guidelines.               The

Commonwealth argues that the trial court sentenced appellant to a term

consistent   with   the   aggravated   range   of   the   sentencing   guidelines.

(Commonwealth’s brief at 15-16.)

      The record reflects that appellant’s prior record score was 4 and his

aggravated assault conviction carries an offense gravity score of 11.         The

sentencing guidelines in effect at the time the crimes were committed for

aggravated assault established an aggravated sentencing range of 72 to

90 months’ imprisonment.      See 204 Pa.Code § 303.16 (repealed June 3,

2005). Here, the trial court sentenced appellant to a minimum sentence of

90 months, or 7½ years’ imprisonment, for each of his two aggravated assault

convictions, to be served consecutively. Because the trial court’s sentence did

not deviate from the sentencing guidelines, we find that appellant’s claim is

without merit.



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        In its brief, the Commonwealth raises an additional issue for our review.

The Commonwealth contends that the trial court imposed an illegal sentence

for appellant’s conviction of carrying a firearm in public in Philadelphia

(“Section 6108”). (Commonwealth’s brief at 16.) As noted above, the trial

court sentenced appellant on this conviction to 3½ to 7 years’ imprisonment.

The Commonwealth avers that this sentence exceeds the statutory maximum.

(Id.)

        Preliminarily, we note that appellant did not raise this issue on appeal.

Because this issue addresses the legality of appellant’s sentence, we shall

nonetheless proceed to consider the issue on its merits, as issues pertaining

to the legality of sentence cannot be waived. See Commonwealth v. Succi,

173 A.3d 269, 284 (Pa.Super. 2017), appeal denied, 188 A.3d 1121 (Pa.

2018), citing Commonwealth v. Schutzues, 54 A.3d 86, 91 (Pa.Super.

2012), appeal denied, 67 A.3d 796 (Pa. 2013).

        Section 6108 is a first-degree misdemeanor. 18 Pa.C.S.A. § 6119. The

statutory maximum sentence for a conviction of a first-degree misdemeanor

is five years’ imprisonment. 18 Pa.C.S.A. § 1104(1). Accordingly, the trial

court imposed an illegal sentence upon appellant for his conviction of Section

6108. Therefore, we vacate the judgment of sentence only as it pertains to

appellant’s conviction for Section 6108.

        The Commonwealth requests that this court vacate appellant’s sentence

for Section 6108 and modify the trial court’s sentence to reflect the applicable



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statutory maximum. (Commonwealth’s brief at 16.) In support of its request,

the Commonwealth cites a litany of cases supporting its contention that we

need not remand for resentencing because we can amend the illegal sentence.

(Commonwealth’s brief at 17, citing Commonwealth v. Huckleberry, 631

A.2d 1329, 1334 (Pa.Super. 1993); Commonwealth v. Kozrad, 499 A.2d

1096, 1099 (Pa.Super. 1985); Commonwealth v. Alarie, 547 A.2d 1252,

1256 (Pa.Super. 1989).)

           An appellate court may affirm, modify, vacate, set
           aside or reverse any order brought before it and may
           remand the matter. 42 Pa.C.S.A. § 706. If our
           disposition upsets the overall sentencing scheme of
           the trial court, we must remand so that the court can
           restructure its sentence plan. Commonwealth v.
           Williams, 871 A.2d 254, 266, 267 (Pa.Super. 2005).
           By contrast, if our decision does not alter the overall
           scheme, there is no need for a remand.
           Commonwealth v. Robinson, 817 A.2d 1153, 1163
           n.14 (Pa.Super. 2003).

Commonwealth v. Thur, 906 A.2d 552, 569-570 (Pa.Super. 2006)

(emphasis added), appeal denied, 946 A.2d 687 (Pa. 2008).

     Here, because we are vacating appellant’s judgment of sentence with

regards to the Section 6108 conviction, our decision upsets the overall

sentencing scheme of the trial court, as our action affects the length of

appellant’s aggregate sentence. In the cases cited by the Commonwealth, the

judgments of sentence that were vacated were part of concurrent sentencing

schemes; therefore, our decisions in those cases did not alter the overall

sentencing scheme and remand was not required.



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     Judgments of sentence vacated.      Case remanded for resentencing

consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 7/11/19




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