J-S68038-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 RANDY R. TEMPLE                         :
                                         :
                   Appellant             :   No. 759 WDA 2018

           Appeal from the Judgment of Sentence April 26, 2018
   In the Court of Common Pleas of Crawford County Criminal Division at
                     No(s): CP-20-CR-0001081-2017


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

MEMORANDUM BY STEVENS, P.J.E.:                 FILED NOVEMBER 28, 2018

      Appellant Randy R. Temple appeals from the judgment of sentence

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

guilty plea to three counts of possession with the intent to manufacture or

deliver a controlled substance (“PWID”), 35 P.S. § 780-113(a)(30). After a

careful review, we affirm.

      The relevant facts and procedural history are as follows: With the

assistance of a confidential informant (“CI”), the police conducted controlled

buys of illegal drugs from Appellant on March 7, 2017, March 13, 2017, March

29, 2017, and April 5, 2017. Each time, the CI went to Appellant’s residence

and gave Appellant $200.00 for heroin. Each purchased substance was later

tested and found to contain fentanyl. Following the police’s execution of a

search warrant at Appellant’s residence, Appellant made a police statement in


____________________________________
* Former Justice specially assigned to the Superior Court.
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which he admitted that he bought and sold drugs from his residence in order

to support his own drug habit.

        Appellant was charged with numerous drug related offenses, and on

February 15, 2018, represented by counsel, Appellant entered open guilty

pleas to three counts of PWID. The Commonwealth nolle prossed the

remaining charges.

        On April 26, 2018, Appellant, represented by counsel, proceeded to a

sentencing hearing, at which the assistant district attorney (“ADA”) reminded

the trial court of the facts underlying Appellant’s guilty plea. N.T., 4/26/18,

at 5.     The ADA noted that “[b]y [Appellant’s] own admission in the

presentence report, he stated his drug habit…[was] getting out of control,

[and] [n]umerous items of drug paraphernalia were found during the search

[of Appellant’s residence].” Id. The ADA indicated Appellant’s prior record

score is a three and Appellant has been “crime free for some time when you

look at his prior history[.]” Id. at 6. However, the ADA noted that Appellant’s

last conviction was “quite serious[]” as it was a “homicide by motor vehicle,

DUI, 2003.” Id. The ADA requested that Appellant’s sentence on his three

PWID convictions be imposed consecutively. Id.

        In response, defense counsel acknowledged the “Court had the benefit

of a very detailed presentence report that has been prepared.” Id. Defense

counsel indicated he asked Appellant to review the presentence report, and




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Appellant wished to make corrections. Id. Specifically, Appellant informed

the trial court of the following corrections to the presentence report:

      The one that states my clean time, was from Millcreek Community
      and that was incorrect. That was from Pyramid in Pittsburgh and
      that was where I went to rehab and the other one saying that—
      that I didn’t really know my siblings was incorrect. I mean, I didn’t
      know their addresses, but I—there are a couple that I have never
      met that were from [my] father’s first marriage, but the majority
      of them I do know and talk to them.

Id. at 7.

      Defense counsel informed the trial court of the following:

      [Appellant] had a drug and alcohol assessment. He’s been
      counseling with the Family Service and Children’s Aid Society in
      Venango County. He [] supplied me with three letters from that
      agency. The first is dated February 20th of this year. The second
      is March 13th and then [the] third is April 23rd of 2018. They
      basically indicate how he’s doing. They’re not long letters.

Id. at 7-8.

      Defense   counsel   also   indicated   he   wanted   to   supplement    the

presentence report to reveal that Appellant has been employed as a diesel

mechanic for the past year. Also, Appellant “physically looks a lot better[,]”

and defense counsel opined that, by visually looking at Appellant, it appears

that he has maintained his sobriety for the past year.       Id. at 9.    Defense

counsel further noted that Appellant has a child support obligation, and he has

been making payments. Id. at 10. Defense counsel indicated that Appellant’s

mother gave him a letter in which she suggested Appellant’s addiction

escalated when he suffered a work-related back injury and was prescribed




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opioids. Id. at 11. Defense counsel asked the trial court to “run the three

sentences concurrent[ly] and run them in the mitigated range.” Id. at 10.

      Appellant made a statement on his behalf at the sentencing hearing.

Specifically, he stated the following:

      Your Honor. I definitely made a lot of mistakes in my life and with
      counseling I’ve been going to, I was trying to figure out why I
      keep making the mistakes I do and a lot of it has been, you know,
      reacting before I think things through and I definitely [have] been
      working on that very hard and my sobriety means a lot to me and
      I’m not the same man I was a year ago. I’ve learned a lot and,
      you know, I keep doing the next right thing and life is getting
      better. Thank you, Your Honor.

Id. at 11.

      The trial court indicated the following in imposing sentence:

            I appreciate the advances that [Appellant] has made. I do.
      I’m very pleased to hear that he’s fully in recovery, that he’s
      gainfully employed, that he’s looking better. He’s healthier.
      That’s excellent news and I commend him for making the
      commitment towards his recovery.
            The problem I have, however, is rather obvious. If you look
      at the affidavit of probable cause[,] [Appellant] was a heroin
      store. I mean, that’s where people went to get their heroin and I
      guess unbeknownst to these purchasers, the results of fentanyl
      within these substances and it seems like nearly every week, if
      not every day, you read in the newspapers about, probably every
      week, about how ruinous this opioid epidemic has become in our
      community and I don’t think anyone in this room is unaware of at
      least one person, if not several, who have overdosed as a
      consequence of this activity. This activity has to stop and while I
      appreciate that [Appellant] was in the throes of his addiction and
      this was a handy way for him to make some money and in his
      heart he doesn’t think of himself as a bad person. Anybody who
      allows this substance to go into circulation is committing a very
      serious offense. You don’t know if that sale is going to result in
      the death of another person. You don’t know—well, actually you
      do know. You know from your own addiction how horrible this is.
      So instead of aiding the purchaser, the prospective purchaser, in

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      doing the right thing getting into rehab, getting their life in order,
      you are validating this horrible, terrible addiction, which is not just
      ruinous to that person’s life, but ruinous to all the people who rely
      [on] and love that person and so I can’t minimize it.
            By his own admission, he has been selling for six months. I
      guess this girlfriend suggested it was more than that, more like a
      year. How many sales took place over the course of that period
      of time? How many opportunities did [Appellant] have along the
      way to realize I’m doing a terrible thing here. This is really, really
      wrong. I know my own life is garbage. Why would I want to help
      other people have a garbage life like me. No, I need some help
      here. You had that opportunity, didn’t do it until after he gets
      caught.
            The best I can do is low end standard range, but I have to
      run these consecutively. There’s no way I can think in terms of
      mitigated range and there’s no way I can think in terms of
      concurrent sentences. These are separate purchases.

Id. at 11-14.

      The trial court then imposed a sentence of twelve months to twenty-

four months for each of Appellant’s three PWID convictions, the sentences to

run consecutively.

      Appellant filed a timely, counseled post-sentence motion, and by order

entered on May 9, 2018, the trial court denied Appellant’s post-sentence

motion.   This timely, counseled appeal followed, and all Pa.R.A.P. 1925

requirements have been met.

      On appeal, Appellant acknowledges that his sentences are in the “low

end of the standard range” for each conviction. However, Appellant avers the

imposition of consecutive sentences resulted in an excessive sentence in which

the trial court did not give sufficient weight to various mitigating factors.



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      Appellant’s issue presents a challenge to the discretionary aspects of his

sentence. Commonwealth v. Zirkle, 107 A.3d 127, 133-34 (Pa.Super.

2014). As this Court has explained:

      [t]o reach the merits of a discretionary sentencing issue, we
      conduct a four-part analysis to determine: (1) whether appellant
      has filed a timely notice of appeal, Pa.R.A.P. 902, 903; (2)
      whether the issue was properly preserved at sentencing or in a
      motion to reconsider and modify sentence, 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. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).

      A review of the record reveals that Appellant has satisfied the first three

elements. Further, assuming, arguendo, Appellant presented a substantial

question, we conclude the trial court did not abuse its discretion in imposing

consecutive sentences.

      It is well-settled 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. 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. Gonzalez, 109 A.3d 711, 731 (Pa.Super. 2015)

(quotation omitted).

      When imposing a sentence, a court is required to consider “the particular

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

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Commonwealth v. Frazier, 500 A.2d 158, 159 (Pa.Super. 1985). The trial

court is required to state its reasons for the sentence on the record, so that a

reviewing court can determine whether the sentence imposed was based upon

accurate, sufficient, and proper information. Commonwealth v. Sanders,

627 A.2d 183, 188 (Pa.Super. 1993). Where the sentencing judge had the

benefit of a presentence report, it will be presumed that he was aware of

relevant information regarding an appellant’s character and weighed those

considerations along with the mitigating statutory factors. Commonwealth

v. Devers, 519 Pa. 88, 546 A.2d 12, 18 (1988).

      Here, the record reveals the trial court set forth sufficient reasons for

the imposition of consecutives sentences and, contrary to Appellant’s

assertion, the trial court was aware of and considered the mitigating statutory

factors.   Specifically, the sentencing transcript reveals the trial court

considered a presentence report. The trial court heard from defense counsel

who provided supplemental information to the presentence report, including

information regarding Appellant’s employment, drug and alcohol counseling,

and the factors contributing to Appellant’s drug addiction. The trial court also

heard from Appellant who clarified a few points of the presentence report, as

well as explained that his sobriety “means a lot” to him and he is not “the

same man [he] was a year ago.” N.T., 4/26/18, 11.

      The sentencing transcript reveals the trial court considered the

mitigating factors, along with the need to protect the public, the gravity of


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Appellant’s offenses on the victim and community, and the Appellant’s

rehabilitative needs. 42 Pa.C.S.A. § 9721(b). Taking all of the information

into consideration, the trial court imposed three consecutive sentences. As

the trial court indicated, Appellant sold drugs to a CI on numerous separate

occasions. Trial Court Opinion, filed 5/29/18, at 3. He was not entitled to a

“volume discount” by having all of his sentences run concurrently. See id.;

Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa.Super. 1995).

      For all of the foregoing reasons, we conclude Appellant is not entitled to

relief, and therefore, we affirm.

      Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/28/2018




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