J-S41008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ANTHONY M. MORALES-CASTRO,

                            Appellant                 No. 1974 EDA 2015


              Appeal from the Judgment of Sentence May 11, 2015
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0002781-2012

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ANTHONY M. MORALES-CASTRO,

                            Appellant                 No. 1977 EDA 2015


              Appeal from the Judgment of Sentence May 11, 2015
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0005565-2012

BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                           FILED JUNE 22, 2016

        Appellant, Anthony M. Morales-Castro, appeals from the judgment of

sentence of an aggregate term of 10 to 20 years’ imprisonment, imposed

after he was convicted by a jury of various drug-related offenses.        On

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*
    Former Justice specially assigned to the Superior Court.
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appeal, Appellant challenges the legality, and the discretionary aspects, of

his sentence. After careful review, we affirm.

       Appellant was charged in two separate cases with possession with

intent to deliver (PWID), and other drug related offenses. Briefly, in the first

case   (docketed      by   the   trial   court   at   CP-39-CR-0005565-2012,   and

hereinafter “5565-2012”), officers conducted a controlled drug-buy, during

which a confidential informant purchased 100 grams of cocaine from

Appellant for $3,900. In the second case (docketed by the trial court at CP-

39-CR-0002781-2012, and hereinafter “2781-2012”), Appellant’s home was

searched via a warrant and officers discovered, inter alia, a 970-gram brick

of cocaine and a semi-automatic handgun with a magazine and 13 rounds of

ammunition.1 Following this search, Appellant was arrested.

       Appellant’s two separate cases were consolidated prior to trial, and at

the close thereof, the jury convicted him of two counts each of PWID, 35

P.S. § 780-113(a)(30), and possession of a controlled substance, 35 P.S. §

780-113(a)(16). Appellant was also convicted of single counts of possession

of drug paraphernalia, 35 P.S. § 780-113(a)(32), and criminal use of a

communication facility, 18 Pa.C.S. § 7512(a). Appellant was sentenced to


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1
  For a more detailed discussion of the facts and procedural history of
Appellant’s two cases, see this Court’s prior decision in Commonwealth v.
Morales-Castro, No. 2111 EDA 2013, unpublished memorandum at 2-6
(Pa. Super. filed Feb. 17, 2015) (quoting Trial Court Opinion, 6/20/13, at 4-
10) (hereinafter “Morales-Castro I”).



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an aggregate term of 14 to 20 years’ incarceration, which included two

mandatory minimum sentences for his PWID offenses, imposed under 42

Pa.C.S. § 7508.

       Appellant filed an initial direct appeal to this Court (Morales-Castro I)

presenting numerous claims.      Ultimately, we affirmed his convictions, but

concluded that his mandatory minimum sentences were illegal pursuant to

Alleyne v. United States, 133 S.Ct. 2151, 2163 (2013) (holding that “facts

that increase mandatory minimum sentences must be submitted to the jury”

and found beyond a reasonable doubt), and Commonwealth v. Fennell,

105 A.3d 13 (Pa. Super. 2014) (deeming 42 Pa.C.S. § 7508 unconstitutional

in its entirety as it violates the rule announced in Alleyne). See Morales-

Castro I, No. 2111 EDA 2013, unpublished memorandum at 24-27.

Accordingly, we vacated Appellant’s sentence, in its entirety, and remanded

for resentencing. Id. at 32.

       The trial court conducted a resentencing hearing on May 11, 2015. At

the conclusion thereof, the court imposed consecutive terms of 5 to 10

years’ imprisonment for Appellant’s two PWID convictions, along with

concurrent terms of 6 to 12 months’ incarceration for his convictions of

possession of drug paraphernalia and criminal use of a communication

facility.   Appellant filed a timely post-sentence motion, which the court

denied.     He then filed a timely notice of appeal, and also timely complied

with the court’s order to file a Pa.R.A.P. 1925(b) statement. The trial court

filed an opinion on August 4, 2015.

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      Herein, Appellant presents seven issues for our review.              See

Appellant’s Brief at 6.   However, his issues 1 through 4, and his issue 7,

were all addressed by this Court in Morales-Castro I.         See Morales-

Castro I, No. 2111 EDA 2013, unpublished memorandum at 7-24

(addressing issues 1-4), 27-32 (addressing issue 7).     Accordingly, we will

not reassess these claims.     Instead, we will limit our review to the two

issues presented by Appellant that our Court did not previously address, as

they stem from his resentencing:

      [1]. Whether the trial court imposed an illegal sentence when it
      sentenced [Appellant] to five to ten years for the sale of 100
      grams or less of cocaine in the matter of CP-39-CR-0005565-
      2012?

      [2]. Whether the trial court abused its discretion by considering
      non-record materials when it imposed an[] aggravated sentence
      and consecutive rather than concurrent sentences?

Appellant’s Brief at 6.

      Appellant’s argument in support of his first issue is rather confusing,

but from what we can ascertain, he is contending that his sentence of 5 to

10 years’ incarceration in case 5565-2012 is illegal because it exceeds the

sentencing guideline range.    See Appellant’s Brief at 26.    Initially, “it is

necessary to remember that the sentencing guidelines are advisory only[,]”

and the court may “sentence outside the guidelines, … so long as it offers its

reasons.” Commonwealth v. Davis, 737 A.2d 792, 798 (Pa. Super. 1999).

Because the guidelines are advisory only, and the court may sentence




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outside them, it follows that Appellant’s sentence is not illegal simply

because the court chose to do so.

      Moreover, Appellant’s claim is patently meritless because his sentence

in case 5565-2012 falls within the guidelines, albeit the aggravated range.

Appellant’s argument that his sentence is outside the guideline range

appears to be premised on his incorrect conclusion that the offense gravity

score (OGS) in case 5565-2012 was 10.            However, the Commonwealth

argues, and we agree, that because Appellant was convicted of possessing

100 grams of cocaine, with the intent to deliver those drugs, the appropriate

OGS was 11. See 204 Pa.Code. § 303.16(a). With a prior record score of

zero for this offense, the guidelines called for a standard range, minimum

sentence of 36 to 54 months’ imprisonment, plus or minus 12 months for

the mitigated/aggravated range. Thus, Appellant’s minimum sentence of 5

years’ (i.e., 60 months’) imprisonment for this offense is within the

aggravated range of the guidelines. Because his maximum sentence of 10

years’   incarceration   does   not   exceed   the   statutory   maximum   term

permissible for PWID cocaine, his sentence is not illegal. See 35 P.S. § 780-

113(f)(1.1) (stating that the maximum sentence for PWID cocaine is ten

years in prison). Thus, Appellant’s first issue is meritless.

      In Appellant’s second issue, he challenges the discretionary aspects of

his sentence.

      A challenge to the discretionary aspects of a sentence must be
      considered a petition for permission to appeal, as the right to
      pursue such a claim is not absolute. When challenging the

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     discretionary aspects of the sentence imposed, an appellant
     must present a substantial question as to the inappropriateness
     of the sentence. Two requirements must be met before we will
     review this challenge on its merits. First, an appellant must set
     forth in his brief a concise statement of the reasons relied upon
     for allowance of appeal with respect to the discretionary aspects
     of a sentence. Second, the appellant must show that there is a
     substantial question that the sentence imposed is not
     appropriate under the Sentencing Code. That is, [that] the
     sentence violates either a specific provision of the sentencing
     scheme set forth in the Sentencing Code or a particular
     fundamental norm underlying the sentencing process.           We
     examine an appellant’s [Pa.R.A.P.] 2119(f) statement to
     determine whether a substantial question exists. Our 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.

Commonwealth v. Ahmad, 961 A.2d 884, 886-87 (Pa. Super. 2008)

(citations, quotation marks and footnote omitted; emphasis in original).

     Appellant has included a Rule 2119(f) statement in his brief. Therein,

he argues that the court abused its discretion by imposing aggravated range

sentences for his PWID offenses. Appellant claims that the court’s decision

to do so was based on facts that were “not supported by any evidence in the

record.”   Appellant’s Brief at 56.    Namely, Appellant argues that the

Commonwealth improperly referred to his “‘non[-]charged drug activities’

and the length of time in which [Appellant] engaged in these activities.” Id.

He maintains that based on this information, the court concluded that he

“was a ‘large scale drug dealer’” and imposed sentences in the aggravated

range of the guidelines. Id.

     We conclude that Appellant’s claim presents a substantial question for

our review.   See Commonwealth v. Downing, 990 A.2d 788, 792 (Pa.


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Super. 2010) (considering a claim that the trial court relied on an improper

factor as raising a substantial question for our review). However, Appellant

has not convinced us that the court abused its discretion. We acknowledge

that   at   Appellant’s   initial   sentencing proceeding,    the    Commonwealth

commented      that   Appellant     was   transporting   “kilos”    of   cocaine   into

Pennsylvania, and that he was being investigated “for several months”

before the search warrant for Appellant’s home was obtained and he was

arrested. N.T. Sentencing, 5/30/13, at 9-10. While Appellant contends that

the court improperly relied on this information to conclude that he was a

‘large scale drug dealer’ and to impose aggravated range sentences, at the

resentencing hearing on May 11, 2015, this information was not mentioned.

Instead, the Commonwealth stated to the court, “Your Honor, … you heard

the entire trial.     Clearly [Appellant is] a large scale dealer….”               N.T.

Resentencing, 5/11/15, at 2 (emphasis added). The Commonwealth argues,

and we agree, that the evidence presented at Appellant’s trial supported that

characterization. Namely, Appellant sold a confidential informant 100 grams

of cocaine in exchange for $3,900.              When Appellant’s home was later

searched, a near-kilo (970 grams) brick of cocaine was confiscated, along

with a semi-automatic firearm and numerous rounds of ammunition. These

facts made it reasonable for the trial court to deem Appellant a ‘large scale

dealer,’ and to consider this fact when determining the appropriate

sentence. Thus, the record does not support Appellant’s claim that the court

considered improper facts when resentencing him.

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       Appellant also briefly contends that in deciding to impose aggravated

range sentences, the court disregarded mitigating facts, including that these

crimes were Appellant’s first offenses, he had no prison misconducts while

incarcerated in this case, he has a minor child, and he has obtained his GED

and become a tutor to other inmates.             Appellant’s Brief at 56-57.     Even

presuming that such an argument constitutes a substantial question for our

review, the record confirms that defense counsel informed the court of these

mitigating facts at the resentencing hearing.             N.T. Resentencing at 4.

Additionally, the court had the benefit of a presentence report prior to the

first sentencing hearing, and stated that it reviewed and considered that

report.   N.T. Sentencing at 2.2         The court also heard, during that initial

proceeding, a statement from Appellant discussing his remorse, his

acknowledgment of responsibility, and his desire to change.              Id. at 3-5.

Accordingly, the record demonstrates that the court considered the

mitigating factors discussed by Appellant herein, but concluded that his

large-scale participation in drug dealing, and the danger he poses to society,

warranted     consecutive,     aggravated      range   sentences   at   the   time   of

resentencing. See N.T. Resentencing at 5 (court’s stating, “[t]he reason for

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2
  Appellant did not state that there were any changes or additions to the
presentence report at the resentencing hearing.




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the aggravated range [sentence] is: [Appellant] is a danger to the

community” and he “was a large scale distributor of [a] controlled

substance”). Therefore, Appellant’s second sentencing claim is meritless.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2016




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