J-S28008-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
                v.                         :
                                           :
                                           :
    JOHN LONG                              :
                                           :
                     Appellant             :   No. 1634 MDA 2018

          Appeal from the Judgment of Sentence Entered July 20, 2018
     In the Court of Common Pleas of Lancaster County Criminal Division at
                        No(s): CP-36-CR-0004994-2016

BEFORE:     BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY BOWES, J.:                               FILED JUNE 25, 2019

       John Long appeals from the judgment of sentence of an aggregate term

of nine to twenty years of incarceration. We affirm.

       The trial court summarized the history of this case as follows.

             On June 4, 2018, a bench trial was held before this court,
       and [Appellant] was convicted of the following charges: [count 1]
       possession with intent to deliver (“PWID”) - Oxycodone; [count 2]
       possession of a controlled substance - Xanax; [count 3]
       possession of drug paraphernalia; [count 4] theft by unlawful
       taking (“TBUT”); disorderly conduct and public drunkenness.
       [Appellant] was determined to be eligible for the recidivism risk
       reduction incentive (“RRRI”) program.            A pre-sentence
       investigation report (“PSI report”) was ordered, and sentencing
       was deferred.

            With a prior record score of five, the sentencing guidelines
       worksheets provided to the court indicated the following standard
       minimum incarceration sentence ranges for the offenses of which
       [Appellant] was convicted, as well as the number of months to be
       added or subtracted for aggravating or mitigating circumstances:




*    Retired Senior Judge assigned to the Superior Court.
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     Count   1    .   .   .    7[2] - 90 months,       +/-    12 months
     Count   2    .   .   .    6 - 16 months,          +/-    9 months
     Count   3    .   .   .    RS -6 months,           +/-    3 months
     Count   4    .   .   .    6 - 16 months,          +/-    3 months

     A sentencing hearing was held on July 20, 2018, and the court
     imposed the following sentences:

     Count 1    ...            7½ - 15 years’ incarceration
     Count 2    ...            6 - 12 months’ incarceration
     Count 4    ...            1½ - 5 years’ incarceration
     [Remaining counts         costs only]

     The sentence on count 2 was made to run concurrent with count
     1, while the sentence on count 4 was made to run consecutive to
     count 1. [Appellant]’s aggregate term of incarceration was nine
     to twenty years’ incarceration, with an RRRI minimum of seventy-
     eight and one-half months, plus costs.

Trial Court Opinion, 8/27/18, at 1-2 (footnotes, unnecessary capitalization,

and repetition of values in numerical form omitted).

     Appellant filed a timely post-sentence motion seeking modification of his

sentence.   The trial court denied the motion, after which Appellant filed a

timely notice of appeal.      The trial court did not order Appellant to file a

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),

and none was filed.

     Appellant submits the following questions for this Court’s consideration:

     I.    Was the trial court’s aggregate sentence of 9 to 20 years of
     incarceration following a bench trial so manifestly excessive as to
     constitute too severe a punishment, unreasonable under the
     circumstances of this case, inconsistent with the rehabilitative
     needs of the defendant, and therefore, an abuse of discretion?

     II.   Did the [trial c]ourt err when it used as its sole reason for
     the consecutive sentences, erroneous considerations including the


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      nature of the instant charges which is already considered in the
      applicable guideline ranges?

Appellant’s brief at 6.

      The following principles apply to our consideration of whether

Appellant’s questions raise a viable challenge to the discretionary aspects of

his sentence.

      An appellant is not entitled to the review of challenges to the
      discretionary aspects of a sentence as of right. Rather, an
      appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction. We determine whether the
      appellant has invoked our jurisdiction by considering the following
      four factors:

            (1) whether appellant has filed a timely notice of
            appeal; (2) whether the issue was properly preserved
            at sentencing or in a motion to reconsider and modify
            sentence; (3) whether appellant’s brief has a fatal
            defect; and (4) whether there is a substantial question
            that the sentence appealed from is not appropriate
            under the Sentencing Code.

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa.Super. 2014)

(citations omitted).

      Appellant filed a timely notice of appeal and preserved the issue in a

timely post-sentence motion seeking reconsideration of his sentence.

Appellant’s brief contains a statement of reasons relied upon for his challenge

to the discretionary aspects of his sentence as required by Pa.R.A.P. 2119(f).

Thus, we consider whether Appellant has raised a substantial question.

      Appellant avers that the aggregate sentence is manifestly excessive and

inconsistent with his rehabilitative needs because the trial court failed to



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consider mitigating factors, and that it is improperly based upon the trial

court’s double counting of a factor already contemplated by the sentencing

guidelines.   Appellant’s brief at 6, 13-14. We conclude that Appellant has

raised a substantial question that the sentence is not appropriate under the

sentencing code. See, e.g., Commonwealth v. Dodge, 77 A.3d 1263, 1273

(Pa.Super. 2013) (holding claims that the trial court failed to consider relevant

sentencing criteria and relied upon impermissible sentencing factors presented

substantial questions). Therefore, we shall proceed to address the merits of

Appellant’s claims.

      “When reviewing sentencing matters, this Court must accord the

sentencing court great weight as it is in the best position to view the

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

overall effect and nature of the crime.” Commonwealth v. Ventura, 975

A.2d 1128, 1134 (Pa.Super. 2009).        “We cannot re-weigh the sentencing

factors and impose our judgment in the place of the sentencing court.”

Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009). Hence,

we review the sentencing court’s sentencing determination for an 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. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014).

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      While its discretion is broad, “the trial court’s discretion is not

unfettered.”   Commonwealth v. Coulverson, 34 A.3d 135, 144 (Pa.Super.

2011). A trial court’s sentence “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. § 9721(b).

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

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

considering these factors, the court should refer to the defendant’s prior

criminal record, age, personal characteristics and potential for rehabilitation.”

Antidormi, supra at 761 (citations and quotation marks omitted). “And, of

course, the court must consider the sentencing guidelines.”         Coulverson,

supra at 144 (cleaned up).

      With these principles in mind, we turn to Appellant’s first argument,

which he states as follows:

             [Appellant] has had a drug addiction for over ten years. His
      addiction stemmed from a hand injury for which he received an
      injection of Dilantin. He has been using opiates in one form or
      another since that time. [Appellant] had been staying with his
      aunt in the month prior to his arrest, and he stole her newly-filled
      prescription for Oxycodone. At trial, he testified that he felt bad
      for stealing from his aunt, and eventually planned to return the
      pills to her.

              Given the circumstances underlying how [Appellant] got the
      pills, the fact that he admitted to taking them and that he planned
      on returning them, the application of the standard guidelines and
      a concurrent sentence would have been appropriate. The court’s
      sentence in this case was clearly unreasonable, as it is

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      unnecessary to confi[n]e [Appellant] to incarceration for a
      minimum of nine years, when it is clear that he could benefit from
      rehabilitation and treatment for his drug addiction.

Appellant’s brief at 19 (citations omitted). In sum, Appellant’s position is that

“the circumstances of the offense and [Appellant’s] drug history are in favor

of a lesser sentence.” Appellant’s brief at 18.

      The trial judge had the benefit of a PSI report, and is therefore presumed

to   have   considered   all   appropriate   sentencing   factors.   See,   e.g.,

Commonwealth v. Edwards, 194 A.3d 625, 638 (Pa.Super. 2018).

Moreover, the trial court expressly acknowledged that Appellant’s addiction

played a role in his crimes, but that he had not availed himself of the “many

opportunities to seek treatment and rehabilitation and make changes” that he

has had, given his long involvement with the criminal justice system. N.T.

Sentencing, 8/13/18, at 12.       Rather, Appellant continued to engage in a

number of “extremely serious crimes” that demonstrate that he is “a threat to

the community.” Id.

      Thus, the record reveals that the trial court did consider the appropriate

factors. Appellant simply does not like the weight that the trial court accorded

them, and he asks this Court to re-weigh the competing factors to reach a

different result. This we cannot do. See, e.g., Macias, supra at 778 (“We

cannot re-weigh the sentencing factors and impose our judgment in the place

of the sentencing court.”).




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       Appellant’s second argument is that the trial court considered improper

factors in determining the sentence, in effect double counting a consideration

that was already incorporated in the sentencing guidelines.1        Specifically,

Appellant points to the trial court’s reliance upon the fact that Appellant stole

a purse from someone who was “completely an innocent bystander” in

deciding upon an aggravated range sentence for TBUT. Appellant’s brief at

20.   Appellant maintains that such “is a factor that is already considered in

determining the standard range of the sentencing guidelines for the [TBUT]

charge, as most victims of theft are innocent victims who did not ask or

consent to have their belongings taken.” Id. at 20-21.

       The context of the trial court’s statement at the sentencing proceeding

is as follows:

       [W]hat made you need to steal that purse, I have no idea. And
       that person is completely an innocent bystander in all of this. This
       wasn’t somebody in a drug deal gone bad, or anything like that
       who has done anything to you.

            It is, in my opinion, by my observation of your record, one
       more of many extraordinarily poor decisions that you’ve made,
       not unlike many of the fleeing and attempting to elude
       apprehension charges that you’ve faced.


____________________________________________


1 On appeal, Appellant also raises a double-counting claim in that the trial
court’s complaint that, by selling drugs, Appellant was “getting out there and
influencing other people by putting product in their way,” which was “the very
definition” of PWID. Appellant’s brief at 21. This issue was not raised before
the trial court, and is therefore not properly before us. See Commonwealth
v. Samuel, 102 A.3d 1001, 1006 (Pa.Super. 2014) (providing that a
sentencing challenge must have been “properly preserved at sentencing or in
a motion to reconsider and modify sentence”).

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            You do things, it would seem, very impulsively based on
      what you believe your immediate best interest is, which is to get
      the heck out of Dodge when it looks like things are going to go
      south for you.

               ....

            [TBUT], movable property, this person was an absolute
      innocent bystander having nothing to do whatsoever with
      anything that [Appellant] was in the neighborhood for and,
      therefore, I am going to sentence in the aggravated range[.]

N.T. Sentencing, 8/13/18, at 13-14, 16.         In its opinion, the trial court

reiterated that it “was extremely troubled by the circumstances under which

the theft occurred, as [Appellant] haphazardly decided to steal an innocent

bystander[’]s purse while possessing, and intending to distribute, a large

quantity of narcotics.” Trial Court Opinion, 8/27/18, at 7.

      A person commits TBUT “if he unlawfully takes, or exercises unlawful

control over, movable property of another with intent to deprive him thereof.”

18 Pa.C.S. § 3921(a). Plainly, the trial court’s concerns are not incorporated

within the elements of the crime. Rather, they reflect the trial court’s required

consideration of “the particular circumstances of the offense and the character

of the defendant.”      Antidormi, supra at 761 (cleaned up).      As such, we

discern no abuse of discretion in the trial court’s reliance upon the nature of

the   victim    in    imposing   an   aggravated-range   sentence.       Accord

Commonwealth v. Goggins, 748 A.2d 721, 732 (Pa.Super. 2000) (holding

sentencing court did not double-count the amount of drugs possessed by

defendant in imposing a sentence above the applicable drug-weight-based


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mandatory minimum; instead, its focus upon the number of packets of the

drug, and hence the number of individuals to whom they were intended to be

sold, reflected proper consideration of the impact of the offense on the public).

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 06/25/2019




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