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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    :   IN THE SUPERIOR COURT OF
                                                    :        PENNSYLVANIA
                                                    :
                v.                                  :
                                                    :
                                                    :
    RAYMOND L. WALKER                               :
                                                    :
                       Appellant                    :   No. 966 WDA 2019

          Appeal from the Judgment of Sentence Entered April 23, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0007604-2018


BEFORE: BOWES, J., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                            FILED DECEMBER 11, 2019

        The Appellant, Raymond L. Walker (Walker), appeals the judgment of

sentence entered on April 23, 2019, by the Allegheny County Court of

Common Pleas (trial court).         Walker contends that the trial court erred in

failing to consider all statutory sentencing factors when imposing a prison term

of three to six years following his guilty plea to one count of possession of a

firearm by a prohibited person.1 The subject order is affirmed.

                                               I.

        Walker pled guilty to possession of a weapon by a prohibited person in

April 2019. He admitted that a prior felony conviction made him ineligible to

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*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. § 6105(A)(1).
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possess a firearm, but that he nevertheless did so in March 2018. Walker

explained at his sentencing hearing that he was intoxicated at the time of the

offense, having just celebrated his mother’s birthday at an outdoor park.

      According to his testimony, he found the subject firearm while walking

alone on a bike path, at first believing it was an air pistol. Before he could call

the police to report his finding of a weapon, he fell off a cliff, suffering serious

injuries requiring medical attention. After a security officer at the hospital

discovered the firearm during intake, he was arrested and charged with

possession of a firearm by a prohibited person.

      In exchange for his guilty plea, the Commonwealth withdrew a second

charged weapon offense. Prior to the sentencing hearing, Walker submitted

a pre-sentence report showing his ties to the community and other evidence,

such as letters of support from friends and family. Following the presentation

of those materials, the trial court imposed a prison term of three to six years

and explained on the record how it arrived at that sentence:

      I must reject probation because of the character of the defendant
      as well as the nature of the crime. And I do find that your crime
      and the circumstances that surround it demand correctional
      treatment that can be provided only by commitment to an
      institution.  Any lesser sentence would be to diminish the
      seriousness of the crime which you’ve been convicted. I also find
      that a state prison sentence is required to deter both you and
      those similarly situated in this matter. . . . But you have to
      understand, Mr. Walker, that firearms offenses are among those
      that this Court takes most seriously. Can’t have it.

Sentencing Hearing, 4/23/2019, at 10-11.




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        The trial court expressly took “into consideration the pre-sentence

report and the statement of [Walker’s] character references.” Id. at 10. The

trial court also expressly declined to impose probation, reasoning that “after

this sentence, [Walker is not] going to have any desire or temptation to run

afoul of law enforcement again.”     Id.   Throughout the explanation for the

sentence, the trial court referred to Walker’s age, medical condition and the

contents of letters filed by character witnesses on his behalf. Id. at 10-12.

        The trial court later denied Walker’s post-sentence motions.    Walker

timely appealed, and both Walker and the trial court complied with Pa.R.A.P.

1925.

        Walker now argues that the trial court misapplied the law and imposed

an excessive sentence by ignoring statutory sentencing factors and only

considered the gravity of the offense. See Appellant’s Brief, at 10-11. He

frames the question before as follows: “Was the Sentencing Court’s sentence

of thirty-six to seventy-two months of incarceration an abuse of its discretion

in light of substantial mitigating evidence?” Id. at 3. Moreover, he argues in

his Pa.R.A.P. 2119(f) statement that he has raised a discretionary sentencing

issue that poses a “substantial question” for this court’s consideration. Id. at

9-11.

        The Commonwealth asserts that Walker’s claim cannot be reviewed

because it only involves a discretionary aspect of the sentence and not a

misapplication of law.   See Appellee’s Brief, at 6-9.    Relying solely on its


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ground that this Court lacks jurisdiction, the Commonwealth does not address

the merits of Walker’s claim.

                                               II.

       As Walker acknowledges, a trial court exercises discretion when

imposing a sentence that falls within the applicable statutory guidelines. This

discretionary aspect of sentencing is only reviewable if an appellant can satisfy

a four-part test:

       (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.

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006).2

       Here, Walker has clearly satisfied the first three parts of the test by

timely filing a notice of appeal, filing a post-sentence motion, and submitting

an appellate brief in accordance with the applicable procedural rules. The part

of the test in dispute is whether Walker raised a “substantial question” in

arguing that the trial court abused its discretion by imposing an excessive




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2 The fourth part of the test, raising a substantial question, is mandated by 42
Pa.C.S. § 9781(b), which provides that review of discretionary aspects of an
appeal may be granted, “where it appears that there is a substantial question
that the sentence imposed is not appropriate under this chapter.”


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sentence and not considering or referencing statutory sentencing factors listed

in 42 Pa.C.S. § 9721(b).

      “[O]rdinarily, a claim that the sentencing court failed to consider or

accord proper weight to a specific sentencing factor does not raise a

substantial question.” Commonwealth v. Berry, 785 A.2d 994, 996–97 (Pa.

Super. 2001) (internal citation omitted) (emphasis in original); see generally

Commonwealth v. Griffin, 65 A.3d 932, 936–37 (Pa. Super. 2013)

(collecting   cases   where   trial   court’s   failure   to   consider   defendant’s

rehabilitative needs did not raise a substantial question); see also

Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (“[T]his

Court has held on numerous occasions that a claim of inadequate

consideration of mitigating factors does not raise a substantial question for

our review.”) (internal citation omitted).

      However, based on our opinion in Commonwealth v. Caldwell, 117

A.3d 763 (Pa. Super. 2015), Walker has raised a substantial question which

invokes appellate review. Initially, in Caldwell, we noted that “prior decisions

from this Court involving whether a substantial question has been raised by

claims that the sentencing court ‘failed to consider’ or ‘failed to adequately

consider’ sentencing factors [have] been less than a model of clarity and

consistency.” 117 A.3d at 769-70 (quoting Commonwealth v. Seagraves,

103 A.3d 839, 842 (Pa. Super. 2014)). However, we went on to explain that,

although the lack of consideration of rehabilitative needs has often not


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triggered our jurisdiction, see Caldwell, 117 A.3d at 769, “an excessive

sentence claim – in conjunction with an assertion that the court failed to

consider mitigating factors – raises a substantial question.”         Id. at 770

(quoting Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014)

and Commonwealth v. Perry, 883 A.2d 599, 602 (Pa. Super. 2005)).

        As the appellant did in Caldwell, Walker has asserted that the trial court

imposed an excessive sentence after failing to consider mandatory sentencing

factors. Contrary to the Commonwealth’s conclusion that Walker’s claim is

“quite frankly, ridiculous,” Appellee’s Brief, at 9, he has presented a

substantial question that this Court may address on the merits.              See

Commonwealth v. Ritchey, 779 A.2d 1183, 1186 (Pa. Super. 2001)

(“Appellant’s claims that the sentencing court provided insufficient reasons for

the sentence imposed and focused solely on the seriousness of the offense

raise substantial questions”).

                                       III.

                                        A.

        Once it is determined that a challenge to a sentence raises a substantial

question, a sentence may be overturned as an abuse of discretion if the trial

court failed to comply with the general procedures outlined in the Sentencing

Code:

        (a) General rule.—In determining the sentence to be imposed
        the court shall, except as provided in subsection (a.1), consider
        and select one or more of the following alternatives, and may
        impose them consecutively or concurrently:

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           (1) An order of probation.

           (2) A determination of guilt without further penalty.

           (3) Partial confinement.

           (4) Total confinement.

           (5) A fine.

           (6) County intermediate punishment.

           (7) State intermediate punishment.

                                      ***

     (b) General standards.—In selecting from the alternatives set
     forth in subsection (a), the 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.
     The court shall also consider any guidelines for sentencing and
     resentencing adopted by the Pennsylvania Commission on
     Sentencing and taking effect under section 2155 (relating to
     publication of guidelines for sentencing, resentencing and parole
     and recommitment ranges following revocation). In every case
     in which the court imposes a sentence for a felony or
     misdemeanor, modifies a sentence, resentences an offender
     following revocation of probation, county intermediate
     punishment or State intermediate punishment or resentences
     following remand, the court shall make as a part of the
     record, and disclose in open court at the time of sentencing,
     a statement of the reason or reasons for the sentence
     imposed.

42 Pa. C.S. § 9721(a), (b) (emphases added); see Commonwealth v. Ruffo,

520 A.2d 43 (Pa. Super. 1987) (vacating sentence where trial court did not

adequately put reasons for the sentence on the record as required by § 9721);

see also Commonwealth v. Mickell, 598 A.2d 1003, 1008 (Pa. Super.


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1991) (holding that the sentencing court may not base its sentence upon the

seriousness of the crime alone).

      “[A] sentence may be unreasonable if the sentencing court fails to

consider the factors set forth in § 9721(b)”). Id. (quoting Commonwealth

v. Dodge, 957 A.2d 1198, 1200 (Pa. Super. 2008)).        A trial court “is not

required to parrot the words of the Sentencing Code, stating every factor that

must be considered under Section 9721(b), [but] the record as a whole must

reflect due consideration by the court of the statutory considerations[.]”

Commonwealth v. Coulverson, 34 A.3d 135, 145 (Pa. Super. 2011)

(citation omitted).

      “Our Supreme Court has determined that where the trial court is

informed by a pre-sentence report, 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, 1135 (Pa. Super. 2009) (citing

Commonwealth v. Devers, 546 A.2d 12, 18–19 (Pa. 1988)).            Moreover,

where a sentence falls within the guidelines range, the appellant has the

burden of proving that the circumstances of the case make the sentence

“clearly unreasonable.”   42 Pa.C.S. § 9781(c)(2); see id. at § 9781(c)(3)

(adopting less stringent standard of showing the sentence is “unreasonable”

where it exceeds the guidelines).




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                                               B.

       Based on the record as a whole,3 Walker cannot show that the trial court

imposed a sentence that was clearly unreasonable under the circumstances.

Nor can Walker show that the trial court merely considered the severity of his

offense, excluding other sentencing factors.

       Walker was allowed to present a pre-sentence report, as well as

mitigating evidence at his sentencing hearing. He outlined his prospects for

rehabilitation and ties to the community. The trial court considered all of that

evidence before imposing a prison term of three to six years, a range that fell

within the sentencing guidelines.

       The fact that the trial court stressed the severity of Walker’s offense is

not a per se abuse of discretion. It is presumed that the trial court in this

case was aware of all sentencing factors and informed by Walker’s pre-

sentence report.       See Ventura, 975 A.2d at 1135.         Even if no such

presumption applied, the trial court considered the mandatory sentencing

factors explicitly on the record, taking into account the character of the

defendant, the nature of the crime, and the need to deter Walker and others

from committing such offenses. See Sentencing Hearing, 4/23/2019, at 10-



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3 On review of the discretionary aspects of a sentence, this Court must have
in mind the circumstances of the offense and the defendant’s history, the trial
court’s observations during the proceedings, the trial court’s reasons for the
sentence, and the applicable sentencing guidelines. See 42 Pa.C.S. §
9781(d).

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12. Finding no abuse of discretion, we hold that the order on review must

stand.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/11/2019




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