J-A12029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JONATHAN W. ANDERSON,

                            Appellant                 No. 2671 EDA 2015


              Appeal from the Judgment of Sentence July 10, 2015
             In the Court of Common Pleas of Northampton County
                Criminal Division at No(s): CP-48-0000450-2015


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

MEMORANDUM BY PANELLA, J.                       FILED SEPTEMBER 27, 2016

        Appellant, Jonathan W. Anderson, appeals from the judgment of

sentence entered by the Honorable F.P. Kimberly McFadden, Northampton

County Court of Common Pleas. We affirm.

        The relevant facts and procedural history are as follows. On August 14,

2014, Anderson was driving a vehicle in Williams Township, Northampton

County, while high on morphine. Anderson allowed his vehicle to drift from

the roadway and struck Nicholas Brutts, a young man who had been walking

on the side of the road with a friend. Ultimately, Brutts died from the injuries

caused by Anderson’s actions.


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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        Anderson was charged with twelve offenses, including homicide by

vehicle while driving under the influence,1 homicide by vehicle,2 and

involuntary manslaughter.3 On May 14, 2015, Anderson entered an “open”

guilty plea4 to homicide by vehicle while driving under the influence, driving

under the influence of a controlled substance,5 possession of drug

paraphernalia,6 and recklessly endangering another person.7

        Following Anderson’s guilty plea to the above-mentioned charges, the

trial court imposed an aggregate term of 60 to 155 months’ imprisonment,

consisting of 48 to 120 months for homicide by vehicle while driving under

the influence, 6 to 23 months of consecutive imprisonment for recklessly

endangering      another     person,    and    6   to   12   months   of   consecutive

imprisonment for possession of drug paraphernalia. The trial court found

that driving under the influence of a controlled substance merged with

homicide by vehicle while driving under the influence for sentencing
____________________________________________


1
    75 Pa.C.S. § 3735(a).
2
    75 Pa.C.S. § 3732(a).
3
    18 Pa.C.S. § 2540(a).
4
 An “open” plea agreement does not include a negotiated sentence. See
Commonwealth v. Vega, 850 A.2d 1277, 1280 (Pa. Super. 2004).
5
    75 Pa.C.S. § 3802(d)(2).
6
    35 Pa.C.S. § 780-113(a)(32).
7
    18 Pa.C.S. § 2705.



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purposes. Anderson filed a post-sentence motion, which the trial court

denied. This timely appeal followed.

       On appeal, Anderson’s challenges the discretionary aspects of his

sentence.8 Anderson argues that the sentence imposed by the trial court was

manifestly unreasonable. To do so, Anderson relies upon two arguments. 9

First, Anderson argues that the trial court abused its discretion by

sentencing him to aggravated range sentences and running the sentences

consecutively. See Appellant’s Brief, at 7. Second, Anderson argues that the

sentence imposed was improper because the trial court imposed a sentence

outside the standard range without offering adequate reasons for the

sentence. See id. Anderson concedes that both arguments constitute

challenges to the discretionary aspects of his sentence. See id.

       Anderson preserved his argument concerning the discretionary aspects

of his sentence through a post-sentence motion. Thus, he is in technical

____________________________________________


8
 The “open” guilty plea permits Anderson to challenge the discretionary
aspects of his sentence. See Commonwealth v. Tirado, 870 A.2d 362, 365
n.5 (Pa. Super. 2005).
9
  Throughout his brief, Anderson raises additional arguments to challenge
the discretionary aspects of his sentence. Specifically, Anderson argues that
the trial court improperly relied upon factors that are elements of the
charged offenses, failed to consider mitigating factors, and failed to issue a
contemporaneous written statement to support its sentence. See Appellant’s
Brief, at 10-11. However, because Anderson failed to raise these specific
arguments in his 2119(f) statement, he has waived them on appeal. See
Pa.R.A.P. 2119(f); Commonwealth v. Shugars, 895 A.2d 1270, 1273 (Pa.
Super. 2006).



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compliance with the requirements to challenge 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.” Commonwealth v. McAfee, 849 A.2d 270, 274

(Pa. Super. 2004) (citation omitted). “Two requirements must be met before

we will review this challenge on its merits.” Id. (citation omitted).

      “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.” Id. (citation omitted). “Second, the

appellant must show that there is a substantial question that the sentence

imposed is not appropriate under the Sentencing Code.” Id. (citation

omitted). That is, “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.” Tirado, 870 A.2d at

365 (citation omitted).

      We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists. See id. “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.” Id. (citation omitted); see also Pa.R.A.P. 2119(f). In the present

case, Anderson’s appellate brief contains the requisite Rule 2119(f) concise

statement.




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      First, Anderson contends in his Rule 2119(f) statement that the trial

court abused its discretion by sentencing him in the aggravated range and

running the sentences consecutively, creating a manifestly unreasonable

sentence. Essentially, through this argument, Anderson is objecting to the

consecutive nature of his sentence.

      “Although Pennsylvania’s system stands for individualized sentencing,

the court is not required to impose the ‘minimum possible’ confinement.”

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (citation

omitted). The sentencing court “has the discretion to impose sentences

consecutively or concurrently and, ordinarily, a challenge to this exercise of

discretion does not raise a substantial question.” Id. (citation omitted); see

also 42 Pa.C.S.A. § 9721(a); Commonwealth v. Hoag, 665 A.2d 1212,

1214 (Pa. Super. 1995) (stating that an appellant is not entitled to a

“volume discount” for his crimes by having all sentences run concurrently).

“The imposition of consecutive, rather than concurrent, sentences may raise

a substantial question in only the most extreme circumstances, such as

where the aggregate sentence is unduly harsh, considering the nature of the

crimes and the length of imprisonment.” Moury, 992 A.2d at 171-72

(citation omitted).

      An “extreme circumstance” is not present here. The trial court acted

well within its discretion in imposing consecutive sentences. Additionally,

Anderson was charged with the offenses of homicide by vehicle while driving

under the influence and recklessly endangering another person as a result of

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his actions in relation to two different victims, running these sentences

concurrently would allow Anderson a “volume discount” for his crimes. See

Hoag, 665 A.2d at 1214. Given Anderson’s history of failed attempts at

rehabilitation, and the extreme emotional harm that Anderson inflicted on

his victim’s family, we find no abuse of discretion with the trial court’s

conclusion that a sentence of 60 to 155 months’ imprisonment is reasonable

and   not    excessive.   Accordingly,    Anderson’s   first   challenge   to   the

discretionary aspects of his sentence is without merit; it does not even raise

a substantial question for our review.

      Finally, Anderson argues in his Rule 2119(f) statement that the trial

court abused its discretion by imposing a sentence outside of the standard

range of the sentencing guidelines without a meaningful consideration of the

statutory factors. Anderson cites Commonwealth v. Goggins, 748 A.2d

721 (Pa. Super. 2000), for the proposition that imposing a sentence outside

of the standard range of the sentencing guidelines without stating adequate

reasons raises a substantial question for appellate review. See Appellant’s

Brief, at 7. However, Anderson’s belief that Goggins stands for this

proposition is simply wrong. Goggins elucidates that a sentence imposed

outside of the guideline ranges, which includes both standard range and

mitigated/aggravated range sentences, imposed without specifying sufficient

reasons presents a substantial question for review. See Goggins, 748 A.2d

at 728.     Here, Anderson’s sentences for possession of drug paraphernalia

and recklessly endangering another person do fall outside of the guideline

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ranges. Therefore, despite Anderson’s misunderstanding of the holding in

Goggins, we find that Anderson presented a substantial question for review.

      Our standard of review of a challenge to the discretionary aspects of

sentencing is well-settled.

      [s]entencing 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.

Commonwealth v. Anderson, 830 A.2d 1013, 1018 (Pa. Super. 2003)

(quotation omitted).

      In imposing a sentence, the sentencing court must consider relevant

statutory factors, including “the protection of the public, gravity of an

offense in relation to impact on victim and community, and rehabilitative

needs of the defendant.” 42 Pa.C.S.A. § 9721(b). A sentencing court has

broad discretion in fashioning its sentence. See Commonwealth v. Walls,

926 A.2d 957, 962-63 (Pa. 2007). While the court is required to consider the

sentence ranges set forth in the sentencing guidelines, it is not bound by

them. See Commonwealth v. Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007).

The sentencing court may depart from the guidelines, “if necessary, to

fashion a sentence which takes into account the protection of the public, the

rehabilitative needs of the defendant, and the gravity of the particular



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offense as it related to the impact on the life of the victim and the

community.” Commonwealth v. Eby, 784 A.2d 204, 206 (Pa. Super.

2001).

       Initially, we note that the trial court reviewed the pre-sentence

investigation report. See N.T., Sentencing, 7/10/15 at 3. Where the trial

court had the benefit of reviewing a pre-sentence investigation report, we

must

       presume that the sentencing judge was aware of relevant
       information regarding the defendant’s character and weighed
       those consideration along with mitigating statutory factors. A
       pre-sentence report constitutes the record and speaks for itself.
       In order to dispel any lingering doubt as to our intention of
       engaging in an effort of legal publication, we state clearly that
       sentencers are under no compulsion to employ checklists or any
       extended or systematic definitions of their punishment
       procedure. Having been fully informed by the pre-sentence
       report, the sentencing court’s discretion should not be disturbed.
       This is particularly true, we repeat, in those circumstances where
       it can be demonstrated that the judge had any degree of
       awareness of the sentencing considerations, and there we will
       presume also that the weighing process took place in a
       meaningful fashion. It would be foolish, indeed, to take the
       position that if a court is in possession of the facts, it will fail to
       apply them to the case at hand.

Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citing

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)). As the trial court

in this case had the benefit of a pre-sentence report, we must presume that

it considered all relevant sentencing factors and did not impose an

unreasonable sentence.




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      Further, after review of the trial court’s statements at sentencing, we

are satisfied that the trial court relied upon the proper factors and

adequately stated its reasons for imposing sentence. During its exchange

with Anderson, the sentencing court noted: (1) Anderson’s history of drug

and alcohol use and addiction; (2) Anderson’s multiple prior attempts at

rehabilitation; (3) Anderson’s age and family background; (4) the substantial

effect Anderson’s actions had on Brutts’ family and the community; (5) the

need to protect the public; and (6) Anderson’s need for drug rehabilitation.

See N.T. Sentencing, 7/10/15 at 4-8, 10, 18, 19-24. Our analysis of the

sentencing court’s statements persuades us that the court carefully weighed

all of the relevant statutory factors, and determined that a departure from

the statutory guidelines was necessary. Further, it is clear that the court

relied upon permissible reasons for deviating from the guidelines ranges,

including the seriousness of the crime, Anderson’s need for rehabilitation,

and the impact upon the victim and the community. See Eby, 784 A.2d at

206. Therefore, we find that Anderson’s final challenge to the discretionary

aspects of his sentence merits no relief.

      Judgment of sentence affirmed.




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J-A12029-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/27/2016




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