J-S22010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

KEITH SHAWN HALL,

                            Appellant               No. 1443 MDA 2016


             Appeal from the Judgment of Sentence July 21, 2016
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0002990-2015


BEFORE: SHOGAN, MOULTON, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED APRIL 24, 2017

       Keith Shawn Hall (“Appellant”) appeals from the judgment of sentence

entered on July 21, 2016, in the Court of Common Pleas of Lancaster

County. We affirm.

       According to the trial court:

       [o]n April 25, 2016, on Docket 2990-2015, [Appellant] pled
       guilty to one count of Possession With Intent to Deliver Heroin,
       one count of Possession of Drug Paraphernalia, and one count of
       Possession of Marijuana.[1] On July 21, 2016, [Appellant] was
       sentenced to an aggregate sentence of four and one half (4.5) to
       eleven (11) years incarceration.

             On August 31, 2016, [Appellant] filed his Notice of Appeal
       to the Pennsylvania Superior Court. [Appellant] was directed to
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. §§ 780-113(A)(30), (32), and (31), respectively.
J-S22010-17


      file his 1925(b) statement and he         has   done   so.    The
      Commonwealth has filed its response.

             [Appellant] raises three issues in his 1925(b) statement.
      First, [Appellant] asserts that the [c]ourt based its aggravated
      sentence on speculation. Next, [Appellant] argues that the
      [c]ourt improperly considered [Appellant’s] prior record score.
      Finally, [Appellant] alleges that the [c]ourt improperly based its
      aggravated sentence on drug quantity.

Trial Court Opinion, 10/21/16, at unnumbered 1–2 (footnotes omitted).

      On appeal, Appellant presents a single issue for our consideration:

      I.    Was the trial court’s sentence of four and one-half (4 ½) to
            eleven (11) years of incarceration manifestly excessive
            under the circumstances and an abuse of the court’s
            discretion because the court did not state a sufficient
            rationale for an aggravated sentence?

Appellant’s Brief at 5.

      Specifically, Appellant challenges the trial court’s reliance on his

criminal history, the quantity and type of drugs (120 packets of heroin), and

speculation about Appellant’s employment.          Appellant’s Brief at     18.

Appellant argues that “[n]one of these factors, either standing alone or

cumulatively, would constitute a sufficient rationale for imposing an

aggravated guideline range sentence.” Id. According to Appellant:

      [his] prior record score and the quantity/type of drug involved in
      the crime were factors already accounted for within the prior
      record and offense gravity scores, respectively. As previously




                                    -2-
J-S22010-17


      established,5 double counting factors already considered within
      the sentencing guidelines may not be used to justify an
      aggravated range sentence.        Further, using [Appellant’s]
      “mysterious” employment history as a reason to justify an
      aggravated sentence was also improper because it was
      speculative and not an adequate legal reason on which to base
      an aggravated sentence.

             ___________________________________________
             5
                See Commonwealth v. Simpson, 829 A.2d 334,
             339 (Pa. Super. Ct. 2003); Commonwealth v.
             Johnson, 758 A.2d 1214, 1219 (Pa. Super. Ct.
             2000); Commonwealth v. Goggins, 748 A.2d 721,
             727–728 (Pa. Super. Ct. 2000); Commonwealth v.
             McNabb, 819 A.2d 54, 56–57 (Pa. Super. Ct. 2003).
             ___________________________________________

Id. at 22–23.

      Appellant’s claim facially implicates the discretionary aspects of the

trial court’s sentencing decision. Challenges to the discretionary aspects of

sentencing       do   not   entitle   an   appellant   to   review   as   of   right.

Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000).                      An

appellant challenging the discretionary aspects of his sentence must invoke

this Court’s jurisdiction by satisfying a four-part test:

      [W]e conduct a four-part analysis to determine: (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, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Derry, 150 A.3d 987, 991 (Pa. Super. 2016) (quoting

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

                                           -3-
J-S22010-17


citations omitted)). “Objections to the discretionary aspects of a sentence

are generally waived if they are not raised at the sentencing hearing or in a

motion to modify the sentence imposed.” Id.

     The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis. A substantial question exists “only when

the appellant advances a colorable argument that the sentencing judge’s

actions were either: (1) inconsistent with a specific provision of the

Sentencing Code; or (2) contrary to the fundamental norms which underlie

the sentencing process.” Commonwealth v. Lewis, 45 A.3d 405, 410–411

(Pa. Super. 2012) (quoting Commonwealth v. Phillips, 946 A.2d 103, 112

(Pa. Super. 2008) (some citations omitted)).

     Appellant has filed a timely notice of appeal, and his brief does not

contain a fatal defect.   However, the trial court found—and our review

confirms—that Appellant “made no objection to, or argument against, the

Court’s consideration of [Appellant’s] employment situation and his lack of

income” at the sentencing hearing or in his post-sentence motion.       Trial

Court Opinion, 10/21/16, at unnumbered 2; N.T., 7/21/16, 9–13; Post-

sentence Motion, 7/29/16.    Additionally, Appellant failed to raise a claim

regarding drug quantity or type at the sentencing hearing or in his post-

sentence motion.   Trial Court Opinion, 10/21/16, at unnumbered 5; N.T.,

7/21/16, 9–13; Post-sentence Motion, 7/29/16. Therefore, these objections




                                    -4-
J-S22010-17


to the discretionary aspects of Appellant’s sentence are waived. Derry, 150

A.3d at 991.

      Appellant’s remaining argument concerns the trial court’s consideration

of his criminal history, specifically, his prior record score. In his Pa.R.A.P.

2119(f) statement, Appellant asserts that the trial court erred in counting his

prior record score twice as an aggravating factor.      Appellant’s Brief at 10.

This claim raises a substantial question, allowing us to review the merits of

his argument. Commonwealth v. Goggins, 748 A.2d 721, 732 (Pa. Super.

2000) (en banc).

      It is undisputed that 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.      Commonwealth v. Fullin,

892 A.2d 843, 847 (Pa. Super. 2006).            In this context, an abuse of

discretion is not shown merely by an error in judgment.        Id.   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. Id.

      Indeed, the sentencing judge has broad discretion in determining the

proper penalty, and this Court accords the sentencing court great deference,

as it is the sentencing court that is in the best position to view the

defendant’s character, displays of remorse, defiance, or indifference and the


                                      -5-
J-S22010-17


overall effect and nature of the crime. Commonwealth v. Walls, 926 A.2d

957, 961 (Pa. 2007) (quotations and citations omitted). When imposing a

sentence, the sentencing court must consider “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.” 42

Pa.C.S. § 9721(b). As we have stated, “a court is required to consider the

particular circumstances of the offense and the character of the defendant.”

Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002).                  “In

particular, the court should refer to the defendant’s prior criminal record, his

age, personal characteristics and his potential for rehabilitation.” Id.

      Here, the trial court disposed of Appellant’s argument as follows:

            Next, [Appellant] argues that the [c]ourt erroneously
      considered [Appellant’s] prior record score in imposing the
      aggravated sentence. Specifically, [Appellant] alleges that the
      [c]ourt based its aggravated sentence on [Appellant] having a
      prior record score of 11 and not on [Appellant’s] status as a
      Repeat Felony Offender. As stated above, a sentencing court is
      afforded great discretion and its sentence will not be disturbed
      without a manifest abuse of discretion. [Commonwealth v.]
      Galletta, 864 A.2d 532, 534 (Pa. Super. 2004). Here, the
      [c]ourt properly based its aggregate sentence on [Appellant’s]
      status as a Repeat Felony Offender, and merely mentioned
      [Appellant’s] prior record score of 11 as an illustration of
      [Appellant’s] extensive criminal history and its impact on the
      community.

            It’s true that your prior record score or what you
            have would be a max of five. But if I’m looking at
            this correctly, your number would actually be 11. So
            you’re way over the max in terms of prior criminal
            behavior . . . It’s across the board. There are sex
            offenses in there, robberies, various things
            and . . . what makes matters worse in this case is

                                     -6-
J-S22010-17


            that the drug of choice involved here was heroin,
            which we’re all becoming more and more aware is an
            epidemic.

      N.T., 7/21/2016, p. 8. In addition, the [c]ourt was in possession
      of [Appellant’s] pre-sentence investigation report at the
      sentencing hearing, which correctly identified [Appellant] as a
      Repeat Felony Offender. It is clear that the [c]ourt properly
      based its aggravated sentence on [Appellant’s] status as a
      Repeat Felony Offender and not on the assertion that
      [Appellant’s] prior record score would be an 11. Because the
      [c]ourt did not abuse its discretion in considering [Appellant’s]
      criminal history, this claim is meritless.

Trial Court Opinion, 10/21/16, at unnumbered 4–5 (internal quotation marks

omitted) (emphasis in original).

      Upon review, we find no indication in the certified record that the trial

court counted twice Appellant’s prior record score in fashioning the sentence.

N.T., 7/21/16, at 8. Therefore, we conclude that the sentencing court did

not ignore or misapply the law, exercise its judgment for reasons of

partiality, prejudice, bias, or ill will, or arrive at a manifestly unreasonable

decision in imposing the aggravated range sentence upon Appellant.

Appellant’s contrary claim lacks merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/2017

                                     -7-
