J-S19025-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL LONG,                              :
                                               :
                       Appellant               :   No. 979 EDA 2019

         Appeal from the Judgment of Sentence Entered March 8, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0008351-2017


BEFORE: BOWES, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY McCAFFERY, J.:                                FILED MAY 5, 2020

        Michael Long (Appellant) appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following his open

guilty plea to one count of robbery.1 Appellant argues the sentence imposed

was excessive under the circumstances of his case. For the reasons below,

we affirm.

        Appellant was charged with robbery, criminal conspiracy, simple

assault,2 and related offenses for an incident that occurred on September 10,

2017. On January 7, 2019, Appellant entered an open guilty plea to one count

of robbery graded as a second-degree felony.           The Commonwealth nolle




____________________________________________


1   18 Pa.C.S. 3701(a)(1)(ii) (threat of immediate serious bodily injury).

2   18 Pa.C.S. §§ 903(c), 2701(a).
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prossed the remaining charges. The facts underlying Appellant’s plea are as

follows:

             On Sunday, September 10th 2017 around 8:30 in the
       morning, [Appellant], as well as another man, Mr. Tashan Watson,
       approached the complainant from behind inside of Jefferson
       Station [public transportation center in Philadelphia]. [A]ll this
       was captured on video. [Appellant] can be seen putting his arm
       around the complainant’s neck and dragging the complainant
       behind a Kiosk at which the complainant was pushed to the ground
       and hit his head. He did seek medical treatment for his head
       injury.

             $400 was taken from the complainant’s pocket during the
       incident. [Appellant] was . . . observed on sight later by officers.

Trial Ct. Op., 8/26/19, at 1-2, citing N.T. Guilty Plea, 1/7/19, at 10-11.

       On March 8, 2019, the trial court sentenced Appellant to a term of three

to 10 years’ imprisonment. This sentence fell within the aggravated range of

the sentencing guidelines.3        Appellant filed a timely post-sentence motion,

requesting reconsideration and modification of his sentence. The trial court

denied the motion on March 20, 2019, and this timely appeal followed.

Thereafter, Appellant complied with the trial court’s order directing him to file

a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b).

       Appellant raises one issue on appeal:


____________________________________________


3At the sentencing hearing, the court acknowledged: (1) the robbery offense
was graded as a second degree felony, with an offense gravity score of seven;
(2) Appellant had a prior record score of five; and (3) thus, the standard
sentencing guideline range was 24 to 30 months’ imprisonment, “plus or
minus six[.]” N.T. Sentencing H’rg, 3/8/19, at 3-4.

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      Is the sentence imposed unduly harsh and excessive under the
      circumstances of this case?

Appellant’s Brief at 4.

      Appellant’s sole claim on appeal challenges the discretionary aspects of

his sentence. It is well-established that such a challenge does not entitle an

appellant to “review as of right.” Commonwealth v. Caldwell, 117 A.3d

763, 768 (Pa. Super. 2015) (en banc). Rather,

      [b]efore this Court can address such a discretionary challenge, an
      appellant must comply with the following requirements:

         An appellant challenging the discretionary aspects of his
         sentence must invoke this Court’s jurisdiction by satisfying
         a four-part test: (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,
         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.

Id.

      In the present case, Appellant filed a timely notice of appeal, and

preserved his claim in a timely-filed post-sentence motion. See Appellant’s

Post Sentence Motion to Modify or Reconsider Sentence, 3/18/19, at 2-3

(unpaginated). In addition, he has included in his brief the requisite concise

statement of reasons relied upon for appeal pursuant to Pa.R.A.P. 2119(f).

See Appellant’s Brief at 13-20. Accordingly, we must now consider whether

Appellant’s claim raises a substantial question.

      An appellant “presents a substantial question when he sets forth a

plausible argument that the sentence violates a provision of the sentencing

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

Commonwealth v. Conte, 198 A.3d 1169, 1174 (Pa. Super. 2018) (citation

omitted), appeal denied, 206 A.3d 1029 (Pa. 2019).

      In determining whether a substantial question exists, “[o]ur
      inquiry must focus on the reasons for which the appeal is sought
      in contrast to the facts underlying the appeal, which are necessary
      only to decide the appeal on the merits.” Additionally, we cannot
      look beyond the statement of questions presented and the
      prefatory 2119(f) statement to determine whether a substantial
      question exists.

Commonwealth v. Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012)

(citations omitted).

      Here, Appellant argues the trial court’s imposition of an “aggravated

range sentence with a [statutory] maximum term of incarceration is excessive

under the circumstances.” Appellant’s Brief at 18. He further asserts the trial

court failed to “adequately account for” several mitigating factors — including

Appellant’s acceptance of responsibility, expression of remorse, and untreated

mental illness — and misapprehended the applicable statutory maximum. Id.

at 18-19. This Court has held that a claim the trial court “erred by imposing

an   aggravated    range   sentence   without   consideration   of   mitigating

circumstances raises a substantial question.” Commonwealth v. Felmlee,

828 A.2d 1105, 1107 (Pa. Super. 2003) (en banc). Moreover, “[a] claim that

the sentencing court misapplied the Guidelines [also] presents a substantial

question” for our review. Commonwealth v. Sunealitis, 153 A.3d 414, 421




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(Pa. Super. 2016) (citation omitted). Thus, we proceed to review Appellant’s

challenge on appeal.4

       Preliminarily, we note:

       Sentencing is the responsibility of the trial court and we will not
       disturb the sentence unless there is a manifest abuse of discretion.
       To establish a manifest abuse of discretion, the appellant must
       show a misapplication of the law, or partiality, prejudice, bias, or
       ill will that led to the unreasonable decision.

Commonwealth v. Knox, 219 A.3d 186, 199 (Pa. Super. 2019) (citations

omitted). Furthermore, before imposing sentence, a trial court must consider

the relevant sentencing guideline ranges, as well as “the factors set out in 42

Pa.C.S. § 9721(b), that is, the protection of the public, gravity of offense in

relation to impact on victim and community, and rehabilitative needs of the

defendant.” Commonwealth v. Coulverson, 34 A.3d 135, 144 (Pa. Super.

2011) (citation omitted).

       The record in the present case reveals that, at the beginning of the

sentencing hearing, the trial court acknowledged Appellant entered an open

guilty plea to “F2 robbery,” and the appropriate guidelines called for a

standard range sentence of “[t]wenty-four to 30[ months’ imprisonment], plus

____________________________________________


4To the extent Appellant also challenges the court’s imposition of the statutory
maximum sentence, such a claim does not raise a substantial question for our
review. See Appellant’s Brief at 17-18. “This is true because the sentencing
guidelines provide for minimum and not maximum sentences[,]” and “[w]hen
the sentence is within the range prescribed by statute, a challenge to the
maximum sentence imposed does not set forth a substantial question as to
the appropriateness of the sentence under the guidelines.” Commonwealth
v. Yeomans, 24 A.3d 1044, 1049 (Pa. Super. 2011) (citations omitted).


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or minus six[.]” N.T., Sentencing H’rg, at 3-4. Plea counsel explained to the

court that Appellant was initially declared mentally incompetent, but by July

of 2018, he was diagnosed with bipolar disorder and provided appropriate

medication, which resulted in a “notable change in [Appellant’s] ability to

cooperate [with counsel and] communicate with the Court.” Id. at 7-8, 11.

Counsel also told the court that “[e]very time [Appellant went] to state prison,

they just gave him the maximum sentence . . . because of his homelessness,

[he did not] have a home plan in place[.]” Id. at 9. Both the Commonwealth’s

attorney and plea counsel requested the trial court impose a sentence below

the mitigated range of the guidelines.5 Id. at 4-6, 10.

       Prior to imposing sentence, the court stated it had reviewed the pre-

sentence investigation report (PSI) prepared for Appellant, and summarized

the information contained therein as follows: (1) although Appellant was

raised “in a loving and stable home,” he “went off the rails” at age 15, and

“started what was a long career of criminal behavior[;]” (2) Appellant, at age

39, never finished high school and never held a job; (3) Appellant denied

having a substance abuse problem or using drugs for 10 years, despite the

fact he tested positive for cocaine “multiple times while on probation[;]” (4)

Appellant had a history of mental health issues; and (5) Appellant’s extensive

____________________________________________


5  The Commonwealth’s attorney explained to the court that she was not
condoning Appellant’s actions, but merely “taking into account the fact that
[he] has significant other issues in his life[,]” in particular, “significant mental
illness” and “significant substance abuse problems.” N.T., Sentencing H’rg, at
4, 6.

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criminal record included “43 arrests, 15 convictions, 12 commitments, 10

violations of probation or parole, [and] six revocations of sentence.” N.T.,

Sentencing H’rg, at 11-14. The trial court then provided the following reasons

on the record for imposing a sentence of three to 10 years’ imprisonment:

      [I]t appears that unless [Appellant] was incarcerated, he was
      committing crimes: Large, small and some violent, some not,
      which I won’t go through all of it, but brings us to the current
      offense, which I believe is also a violation of probation involving
      himself and another individual who take the victim in the subway
      station, drag him behind a kiosk, and rob him of $400.

            Contrary to what counsel represented, while in state
      custody, [Appellant] didn’t max out because he was homeless. He
      maxed out because he incurred 23 prison misconducts. Quite
      frankly, this is a record that I rarely come across. For somebody
      to start at age 15 and continue consistently to age 39, it is entirely
      unclear to me why the Commonwealth is asking for such a
      mitigated sentence. It makes no sense to this Court whatsoever.

            Clearly, [Appellant] needs mental health treatment;
      however, clearly he has not shown himself to be capable of being
      either on parole or probation, on community — on any type of
      supervision. Nor is he capable of maintaining himself in prison
      without incurring infractions. I find [Appellant] to be a danger to
      the community.

Id. at 15.

      Upon our review of the record, we find no basis to conclude the

aggravated range sentence imposed by the trial court constituted an abuse of

discretion. The court’s statement at Appellant’s sentencing hearing reflects

its consideration of the relevant sentencing factors set forth in Section

9721(b), that is, “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.” See 42 Pa.C.S. § 9721(b). The trial

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court recognized Appellant’s need for mental health treatment, but weighed

that against Appellant’s potential danger to the community.        Contrary to

Appellant’s argument on appeal, it is evident the trial court considered all of

the mitigating factors cited by Appellant in his brief.6 The fact that the court

did not weigh those factors in the manner which Appellant advocates does not

constitute an abuse of sentencing discretion.       See Commonwealth v.

Macias, 968 A.2d 773, 778 (Pa. Super. 2009) (“We cannot re-weigh the

sentencing factors and impose our judgment in the place of the sentencing

court.”).

       Appellant also argues, however, that the trial court misapprehended the

applicable statutory maximum sentence for his crime. Appellant’s Brief at 19.

Indeed, the record reveals Appellant entered a guilty plea to one count of

robbery graded as a second-degree felony. Appellant’s Written Guilty Plea

Colloquy, 1/7/19, at 1. The maximum sentence for a second-degree felony is

10 years’ imprisonment. 18 Pa.C.S. § 1103(2). Nevertheless, in its Pa.R.A.P.

1925(a) opinion, the trial court opined:

       Appellant’s contention that he received the equivalent of a
       maximum sentence — which the Court nonetheless would have
       been entitled to impose — is patently false. Appellant entered an
       open guilty plea to Robbery, which as a felony of the first
       degree, carries a maximum term of 20 years’ imprisonment.
       See 18 Pa.C.S. § 1103(1). Here, conversely, Appellant was
       sentenced to 3 to 10 years’ incarceration.
____________________________________________


6It is axiomatic that “where a sentencing court has the benefit of a PSI, the
court is presumed to have weighed all relevant information regarding the
defendant’s character against any mitigating factors.” Commonwealth v.
Mulkin, ___ A.3d ___, ___, 2020 WL 610939, *3 (Pa. Super. Feb. 10, 2020).

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Trial Ct. Op. at 6 (emphasis added).

       Clearly, the trial court misapprehended the grading of Appellant’s

offense in its opinion. Nevertheless, our review of the transcript from the

sentencing hearing reveals the trial court was aware of the proper grade of

the offense at the time it imposed Appellant’s sentence. The court stated at

the beginning of the hearing: “This was a guilty plea to F2 robbery, and it is

an open plea.” N.T., Sentencing H’rg, at 3 (emphasis supplied). Further, the

court recited the correct sentencing guideline range, and was informed by a

PSI.   Id. at 4, 11.   Indeed, Appellant did not raise this claim in his post-

sentence motion, and, even now, does not assert the court misapprehended

the grade of the offense at the time he was sentenced. Accordingly, because

Appellant cannot demonstrate his sentence, at the time it was imposed, was

shaped by the court’s mistaken calculation of the statutory maximum

sentence available, he is entitled to no relief.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/05/2020




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