J-S72028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  :      IN THE SUPERIOR COURT OF
                                                  :            PENNSYLVANIA
                                                  :
               v.                                 :
                                                  :
                                                  :
    ELLIS WASHINGTON,                             :
                                                  :
                       Appellant                  :          No. 3469 EDA 2016

              Appeal from the Judgment of Sentence June 27, 2016
              in the Court of Common Pleas of Philadelphia County,
              Criminal Division at No(s): CP-51-CR-0003663-2014

BEFORE:       BENDER, P.J.E., MUSMANNO, J., and STEVENS*, P.J.E.

MEMORANDUM BY MUSMANNO, J.:                                FILED DECEMBER 29, 2017

        Ellis Washington (“Washington”) appeals the judgment of sentence

imposed following his guilty plea to robbery (threatens serious bodily injury),

conspiracy to commit robbery, and possession of an instrument of crime

(“PIC”).1 We affirm.

        The   trial   court   set   forth   the       relevant   factual   and   procedural

background as follows:

              On February 25, 2014, at approximately 3[:00] a[.]m[.],
        Thomas Desmond [(“Desmond”)] was standing at Frankford
        Avenue and Banner Street in the City of Philadelphia, when he
        was approached by [] Washington[] and Clinton Daniels
        [(“Daniels”)]. [Washington] put a gun to [] Desmond’s back[,]
        and led him into a driveway. [Washington] and [] Daniels went
        through [Desmond’s] pockets, and took his wallet and cell
        phone. [] Daniels then punched [Desmond] and encouraged
        [Washington] to shoot [Desmond]. [Washington] fired his gun
____________________________________________


1
    See 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903, 907(a).


____________________________________
* Former Justice specially assigned to the Superior Court.
J-S72028-17


     one time and then ran towards a parked Toyota Corolla.
     [Desmond] waived down police officers, who pursued the
     Corolla. Eventually[, Washington] and [] Daniels exited the
     vehicle and fled on foot. The police found [Washington] hiding
     underneath a truck, and found [] Daniels hiding on a nearby
     porch, along with [Desmond’s] cell phone.          [Washington’s]
     firearm and [Desmond’s] wallet were found inside the Corolla.
     [Washington] was arrested and charged with [r]obbery (18
     Pa.[]C.S.A. § 3071(a)(1)(ii)) and related offenses.

            On July 22, 2015, [Washington] pled guilty [at CP-51-CR-
     003663-2014] to [r]obbery, [c]onspiracy to [c]ommit [r]obbery,
     and [PIC] (18 Pa.[]C.S.A. § 907(a)). [Washington’s] plea to
     [r]obbery constituted a second strike under Pennsylvania’s
     sentencing law, as he was previously convicted of [r]obbery[,] as
     a felony in the first degree. On June 27, 2016, this Court
     sentenced [Washington] to ten (10) to twenty (20) years of
     confinement for [r]obbery, twenty (20) years of probation for
     [c]onspiracy, and five (5) years of probation for PIC, for a total
     sentence of ten (10) to twenty (20) years of confinement, with
     twenty-five (25) years of probation to run concurrently. Because
     [Washington] was on [] probation for a 2013 robbery [at CP-51-
     CR-0000520-2013] at the time of his new offense, [the trial
     court] also found [him] to be in violation of [his] probation,
     revoked his probation and imposed a [v]iolation of [p]robation
     [(“VOP”)] sentence of nine (9) to eighteen (18) years, to be
     served consecutively to the sentence imposed on CP-51-CR-
     003663-2014. [Washington] subsequently filed a timely Motion
     for Reconsideration of sentence for both cases. The [M]otion
     was denied by operation of law for CP-51-CR-003663-2014 on
     October 24, 2016, and [the trial court entered an Order
     reflecting said denial on that date. Washington] then filed a
     timely Notice of Appeal [solely as to CP-51-CR-003663-2014] to
     the Superior Court of Pennsylvania.

Trial Court Opinion, 2/22/17, at 1-2 (citations to record and captions

omitted).




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J-S72028-17



omitted).2

        On appeal, Washington raises the following issue for our review: “Did

the trial court commit an abuse of discretion by imposing upon [Washington]

a manifestly excessive sentence of nineteen (19) years to thirty[-]eight (38)

years[,] followed by 25 years of consecutive probation?” Brief for Appellant

at 7.

        Washington challenges the discretionary aspects of his sentence.

“Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,

170 (Pa. Super. 2010).          Prior to reaching the merits of a discretionary

sentencing issue,

        [this Court conducts] 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, [see] 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, [see] 42
        Pa.C.S.A. § 9781(b).

Moury, 992 A.2d at 170 (citation omitted).



____________________________________________


2
   The trial court further noted that, due to an administrative error, the
Motion for Reconsideration of sentence, filed at CP-51-CR-0000520-2013,
was never denied. See Trial Court Opinion, 2/22/17, at 2. The trial court
scheduled a hearing on that Motion for March 14, 2017. See id. However,
the disposition of that Motion, filed at CP-51-CR-0000520-2013, is not at
issue in the instant appeal.



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       In the instant case, Washington filed a timely post-sentence Motion, a

timely Notice of Appeal, and included in his appellate brief a separate Rule

2119(f) Statement. Although Washington is in technical compliance with the

requirements to challenge the discretionary aspects of his sentence, see

Commonwealth v. Rhoades, 8 A.3d 912, 916 (Pa. Super. 2010), we must

determine whether he preserved his issue for our review.

       In his Motion for Reconsideration, Washington challenged the trial

court’s “sentence of 19-38 years of incarceration[,]” on the following bases:

(1) “there are numerous other sentencing alternatives that could have been

appropriately imposed in this case[;]” and (2) “the [c]ourt offered no

explanation or insight as to why it deviated upward from the prosecution’s

requested sentence[,] or the mandatory sentence of 10-20 years.” Motion

for Reconsideration, 6/27/16, at 1 (unnumbered).3       In his Rule 2119(f)

Statement, Washington argues that “the trial court imposed an excessive

sentence where it gave no meaningful consideration to the [sentencing

g]uidelines, but merely sentenced [Washington] to the statutory 10-20

[years’] mandatory minimum on the open case[,] and gave a consecutive

period of 9-18 [years] on the VOP.” Brief for Appellant at 12.

       Although Washington purports to challenge both his sentence imposed

at CP-51-CR-003663-2014 and his sentence imposed at CP-51-CR-0000520-

____________________________________________


3
  In his Motion for Reconsideration, Washington did not challenge the
probationary aspects of his sentence imposed at CP-51-CR-003663-2014.



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2013, only his sentence imposed at CP-51-CR-003663-2014 is before us.

Additionally, as Washington did not challenge the probationary aspects of his

sentence   imposed     at   CP-51-CR-003663-2014       in   his   Motion    for

Reconsideration, our review is confined to the prison sentence of 10-20

years imposed following Washington’s guilty plea to robbery. Thus, we will

proceed to determine whether Washington has presented a substantial

question for our review with regard to this aspect of his sentence.

      We determine the existence of a substantial question 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.
      Additionally, we cannot look beyond the statement of questions
      presented and the prefatory 2119(f) statement to determine
      whether a substantial question exists.

Commonwealth v. Diehl, 140 A.3d 34, 44-45 (Pa. Super. 2016) (internal

citations and quotation marks omitted).

      Here, as the trial court aptly noted, no judicial discretion was involved

in the imposition of Washington’s sentence for robbery.       See Trial Court

Opinion, 2/22/17, at 3.     As this was Washington’s second conviction for

robbery, the trial court was required to regard his conviction as a “second

strike” and impose a mandatory minimum prison sentence of 10-20 years,

pursuant to 42 Pa.C.S.A. § 9714(a)(1).       See id.   Moreover, Washington

concedes that “[t]he guilty plea was negotiated to the period of 10-20 years



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because this qualified as the second strike for Washington, and therefore the

mandatory minimum.” Brief for Appellant at 12-13. As Washington has not

advanced a colorable argument that the trial court’s actions were either (1)

inconsistent with a specific provision of the sentencing code; or (2) contrary

to   the   fundamental    norms   of   the   sentencing   process,   he   has   not

demonstrated that there is a substantial question that his sentence for

robbery is inappropriate. See Diehl, 140 A.3d 34, 44-45.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/2017




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