J-S32044-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                :   IN THE SUPERIOR COURT OF
                                             :         PENNSYLVANIA
                   Appellee                  :
                                             :
              v.                             :
                                             :
VICTOR EVERETT,                              :
                                             :
                   Appellant                 :       No. 235 WDA 2015

      Appeal from the Judgment of Sentence entered on October 29, 2014
               in the Court of Common Pleas of Allegheny County,
                 Criminal Division, No. CP-02-CR-0002730-2014

BEFORE: SHOGAN, OLSON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                          FILED JUNE 03, 2015

        Victor Everett (“Everett”) appeals from the judgment of sentence

imposed after he pled guilty to one count each of possession with intent to

deliver heroin (“PWID”) and possession of heroin.1 We affirm.

        On February 14, 2014, following a traffic stop of a vehicle in which

Everett was a passenger, police discovered that he had an active warrant for

his arrest.   A search of Everett’s person produced three bundles of heroin

(weighing a total of nine grams), a large amount of U.S. currency, and three

separate cell phones.          After Everett was placed under arrest, the

Commonwealth charged him with the above-mentioned offenses, as well as

possession of drug paraphernalia.




1
    See 35 P.S. § 780-113(a)(30), (a)(16).
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      In July 2014, Everett entered into a negotiated plea agreement,

whereby the Commonwealth agreed to withdraw the count of possession of

drug paraphernalia in exchange for Everett’s guilty plea to PWID and

possession of heroin.   The plea agreement did not include any provisions

regarding sentencing.    Following the trial court’s acceptance of Everett’s

guilty plea, the court ordered the preparation of a pre-sentence investigation

report (“PSI”).   On October 29, 2014, the trial court sentenced Everett to

three to six years in prison, followed by five years of probation. Notably to

the instant appeal, this sentence was three months longer than the

aggravated-range sentence under the applicable sentencing guidelines.

      Everett timely filed post-sentence Motions, asserting, inter alia, that

his sentence was excessive, and the trial court failed to state adequate

reasons on the record for its sentence. Following the trial court’s denial of

his post-sentence Motions, Everett filed a timely Notice of Appeal.

      Everett presents the following issue for our review:

      Did the trial court err in denying [Everett’s] post[-]sentencing
      Motions[,] since the trial court erred in imposing an excessive
      sentence for [PWID] heroin[, which] was 3 months above the
      aggravated range of the sentencing guidelines, but [Everett] had
      accepted responsibility for his crime and pled guilty[?]
      Moreover, the trial court failed to state adequate reasons for
      sentencing outside of the aggravated range of the sentencing
      guidelines. Additionally, the trial court failed to consider all of




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      the factors contained at 42        Pa.C.S[.A]. §§    9721(b) and
      9781(d).[2]

Brief for Appellant at 3 (capitalization omitted, footnote added).

      Everett argues that his sentence “was manifestly excessive, since he

had accepted responsibility for this crime and pled guilty.”         Id. at 17.

Everett further contends that the sentencing court failed to state adequate

reasons on the record for imposing a sentence in excess of the aggravated

range.   Id. at 17, 18.    Finally, Everett argues that the sentencing court

abused its discretion by “fail[ing] to consider the factors at 42 Pa.C.S.[A].

§ 9721 …, and the nature and characteristics of [Everett].”            Brief for

Appellant at 18.

      Everett’s claims present a challenge to the discretionary aspects of his

sentence, from which there is no          absolute right to appeal.        See

Commonwealth v. Hill, 66 A.3d 359, 363 (Pa. Super. 2013).               Rather,

where, as here, the appellant has preserved the sentencing challenge for

appellate review by raising it at sentencing or in a timely post-sentence

motion, the appellant must (1) include in his brief a concise statement of the

reasons relied upon for allowance of appeal with respect to the discretionary

aspects of a sentence, pursuant to Pa.R.A.P. 2119(f); and (2) show that

2
  Though Everett argues that the sentencing court improperly failed to
consider the provisions of section 9781(d), this section applies to appellate
courts, when conducting a review of the record concerning a challenge to a
sentence on appeal. See 42 Pa.C.S.A. § 9781(d) (setting forth four factors
that an appellate court should consider when determining whether a
sentence is unreasonable); Commonwealth v. Zeigler, 2015 PA Super 57,
*12 (Pa. Super. 2015).

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there is a substantial question that the sentence imposed is not appropriate

under the Sentencing Code. Hill, 66 A.3d at 363-64.

      Here, Everett included a Rule 2119(f) Statement in his brief. See Brief

for Appellant at 9-10.      Moreover, we determine that Everett’s above-

mentioned claims present a substantial question for our review.               See

Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (noting

that an “[a]ppellant’s contention that the sentencing court exceeded the

recommended range in the Sentencing Guidelines without an adequate basis

raises a substantial question for this Court to review.”); Commonwealth v.

Holiday, 954 A.2d 6, 10 (Pa. Super. 2008) (stating that “[a] claim that the

sentencing court imposed a sentence outside of the guidelines without

specifying sufficient reasons presents a substantial question for our

review.”).

             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.

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

(citation omitted).

      The Sentencing Code sets forth the considerations a sentencing court

must take into account when formulating a sentence, providing that “the



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court shall follow the general principle that the sentence imposed should call

for confinement that is consistent with 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.A. § 9721(b). Additionally, in every case where a sentencing court

imposes a sentence outside of the sentencing guidelines, the court must

provide, in open court, a contemporaneous statement of reasons in support

of its sentence. Id. When doing so,

      a [sentencing] judge ... [must] demonstrate on the record, as a
      proper starting point, its awareness of the sentencing guidelines.
      Having done so, the sentencing court may deviate 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 offense as it
      relates to the impact on the life of the victim and the
      community, so long as it also states of record the factual basis
      and specific reasons which compelled it to deviate from the
      guideline range.

Commonwealth v. Bowen, 55 A.3d 1254, 1264 (Pa. Super. 2012) (citation

and brackets omitted). An appellate court must vacate and remand a case

where it finds that “the sentencing court sentenced outside the sentencing

guidelines and the sentence is unreasonable.” 42 Pa.C.S.A. § 9781(c)(3).

      Initially, we observe that the sentencing court in the instant case had

the benefit of a PSI. Where a sentencing court is informed by a PSI, “it is

presumed that the court is aware of all appropriate sentencing factors and

considerations, and that where the court has been so informed, its discretion

should not be disturbed.”    Commonwealth v. Ventura, 975 A.2d 1128,


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1135 (Pa. Super. 2009). Moreover, “[t]he sentencing judge can satisfy the

requirement that reasons for imposing sentence be placed on the record by

indicating that he or she has been informed by the [PSI]; thus properly

considering and weighing all relevant factors.” Id. (citation omitted).

      Because the sentencing court in the instant case stated, on more than

one occasion, that it had reviewed Everett’s PSI “in its entirety,” it is

presumed that the court considered his rehabilitative needs, character, and

the other relevant factors enumerated in section 9721(b).       See id.; see

also Commonwealth v. Fowler, 893 A.2d 758, 766 (Pa. Super. 2006)

(rejecting the appellant’s claim that the sentencing court had abused its

discretion by imposing sentence without stating adequate reasons on the

record, and holding that, “[s]ince the sentencing court had and considered a

[PSI], this fact alone was adequate to support the sentence[.]”).

      Moreover, the record belies Everett’s bald claim that the sentencing

court failed to state adequate reasons on the record for imposing a sentence

above the aggravated range.        To the contrary, the sentencing court

thoroughly stated its reasons and explained why it deemed that such

sentence was appropriate under the circumstances. See N.T., 10/29/14, at

8-11. To elaborate, in its Pa.R.A.P. 1925(a) Opinion, the sentencing court

summarized its reasons for imposing Everett’s sentence as follows:

      This Court gave careful consideration to the [PSI,] which
      outlined [Everett’s] past convictions for drug dealing. The Court
      also considered [Everett’s] history of crack cocaine use. This
      Court also considered that the conduct that brought [Everett]


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      before the Court was that he was now selling heroin and he did
      so while he was on probation for a previous drug offense. This
      Court’s chief concern was that [Everett] was not responding to
      rehabilitation efforts. At the time of his arrest, [Everett] was
      found in possession of several bundles of heroin, cash and three
      different cell phones. [Everett] attempted to convince the Court
      that he was taking steps to reform his life. This Court believed
      that [Everett] was not sincere when he was addressing the
      Court.    This Court also noted that the [PSI] reflected that
      [Everett] was not sincere when he spoke to authorities. His lack
      of sincerity was borne out at sentencing[,] when [he] attempted
      on two occasions to walk out of the courtroom during sentencing
      and then, at the conclusion of the sentencing, he defiantly
      directed profanity toward the Court. [Everett’s] inability to
      conform his conduct to the law after multiple convictions and jail
      sentences justified the sentence imposed in this case.

Trial Court Opinion, 3/9/15, at 3-4; see also N.T., 10/29/14, at 8-11.

      Additionally, regarding Everett’s objection to his sentence being

outside of the aggravated range of the sentencing guidelines, this Court has

observed that

      although the sentencing guidelines are an important factor in
      sentencing, they are but only one factor when determining an
      individualized sentence: The guidelines have no binding effect,
      create no presumption in sentencing, and do not predominate
      over other sentencing factors – they are advisory guideposts
      that are valuable, may provide an essential starting point, and
      that must be respected and considered; they recommend,
      however, rather than require a particular sentence.

Holiday, 954 A.2d at 13 (citation, paragraph break, and brackets omitted);

see also Commonwealth v. Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007)

(stating that the sentencing guidelines are purely advisory in nature).

      Based upon the foregoing, our review of the record demonstrates that

the sentencing court carefully considered the general standards articulated



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in section 9721(b) of the Sentencing Code, and stated ample reasons on the

record for imposing a sentence in excess of the aggravated range.     We

discern no abuse of discretion by the sentencing court, and determine that

Everett’s sentence is neither excessive nor unreasonable.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/3/2015




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